Please note: If you were arrested or received a Notice to Appear or a Summons before 1/11/10, the procedures may be slightly different. If this applies to you, you should get legal advice.
If you are 17 or older and police have charged you with a crime (also called an offence), you will have to appear in the magistrates court. All criminal cases for people who are 17 years and over start in the magistrates court.
What sort of criminal cases are held in the magistrates court?
The magistrates court usually handles criminal offences called summary offences and more minor indictable offences. Most property offences, such as fraud and stealing will be dealt with in the magistrates court unless the property involved in the charge is worth more than $30,000. This is a very general rule, there are specific rules about this, and only a lawyer can properly advise you as to where your matter will be heard.
More serious indictable offences get sent from the magistrates court to a higher court by a process called a committal. This includes charges like armed robbery and rape.
Magistrates conduct sentences where people plead guilty, and decide the outcome of summary trials where people plead not guilty. In magistrate court cases there is no jury, and all cases are heard by a single magistrate.
How do I know I have to go to the magistrates court?
You have to go to court if you were:
- arrested and given a bench charge sheet; or
- given a Summons; or
- given a Notice to Appear.
Being given a Notice to Appear is what usually happens if you are given bail. The Notice to Appear can be given to you 'on the spot', or after you have been taken to a police station.
The police might also fingerprint you and take your photo before you have to go to court. If you don't turn up in court when you are meant to, a warrant will be issued for your arrest.
How do I know where to go?
You need to keep the paperwork police gave you. The paperwork will say which magistrates court you have to go to, and when you have to go.
What should I do before court?
It is best to get legal advice before going to court. You should take your paperwork each time you go to court to show your own lawyer or the duty lawyer.
Other defendants (people like you who have been charged by police with a crime) who have to go to the same court that day may need to see the duty lawyer that morning too, so get there early and be prepared to wait.
The court may require you to enter a plea of guilty or not-guilty at the second mention of your matter (the second time you go to court). If you are required to enter a plea, it may be difficult to change it later if you change your mind. This is why it is very important to get legal advice early.
What if I want to change the court location?
You can ask the magistrate to transfer your case to a court in Queensland that is closer to your home. You can only do this if you are going to plead guilty in the magistrates court. You need to get legal advice about how to ask for a transfer.
I’ve already been to court once for this charge, is it too late to get legal advice?
No, it is never too late to get advice. It is always a good idea to speak to a lawyer before you go to court.
If your matter is the kind of matter which has to go to a higher court, the district or supreme court, it is very important that you talk to a lawyer. The second time you go to court, the magistrate might ask you to enter a plea or list your matter for a hearing, so it is very important that you understand your rights and options before you go to court.
Will people be in the courtroom when my case is on?
The magistrates court is an open court (i.e. any person can watch the cases) except if:
- someone is asking for a domestic violence order or
- the magistrate orders a closed court.
What will happen to me in the magistrates court?
Get there early on the day you have to be there.
If you haven't already seen a lawyer, ask to see the duty lawyer before court starts.
It might take more than one time in court for your case to be over.
The first time you go to court it is called a remand or mention.
If you talk to the magistrate, call them "Your Honour".
Stand up when the magistrate talks to you.
If the magistrate is in the court, you should nod towards them when you come in or leave the court room.
The police prosecutor or a prosecutor from the Office of the Director of Public Prosecutions (ODPP) reads out the charge and the police version of events about your case.
If this is the second time you have been to court on this charge, the Magistrate may ask you to tell the court whether you are going to plead guilty or not-guilty to the offence.
Part of the Magistrate’s job is to make sure you understand what is happening. If you don’t understand what is happening, you can politely ask the Magistrate to explain it to you.
The Magistrate said that I have to participate in a case conference. What does this mean?
Before your matter can progress through the court, there needs to be a case conference. A case conference is a discussion between you, your lawyer, or the duty lawyer, and the prosecutor. This is a discussion where the parties see if they can negotiate a better solution for everyone. This might mean the prosecution agreeing to drop some charges if you plead guilty to others, or some other agreement that will help resolve your matter more quickly.
If there is a duty lawyer in court, you can ask them for advice about case conferences. If there is no duty lawyer and the Magistrate tells you to have a case conference, you will need to talk to the prosecutor yourself about your charges. It doesn't matter if you can't come to an agreement, you just need to be able to show the court that you have spoken to the prosecutor about your charges.
What are my options?
Your two basic options are to either plead guilty or not guilty. Your lawyer will get the police version on paper before court, and talk to you about the allegations against you. Your lawyer can give you advice on your options. If you don't have a lawyer, you need to talk to the police prosecutor before court and get a copy of their paperwork saying what police say you did. This paperwork is called the QP9 (this stands for Queensland Police form 9) and bench charge sheet. If the prosecutor refuses to give you a copy, ask the duty lawyer for help. If there is no duty lawyer at court on the day, seek an adjournment to a date when the duty lawyer may be available. You need to know what the police are alleging about you before you can decide whether to plead guilty or not guilty.
The decision whether to plead guilty or not guilty has to be yours - no one can tell you what to do - but you can get advice from your lawyer.
If you didn't get legal advice before your first mention, you can ask the magistrate to delay (adjourn) your case to another mention date so you can get legal advice (most courts only allow one adjournment). The court may not let you do this and ask you to enter a plea of not guilty or guilty. If possible, try to speak to a duty lawyer before you do this. If you can not do this, think very carefully before you enter any plea, especially a plea of guilty. It will be very difficult to change your plea after you have entered a plea of guilty.
If you plead guilty, it means that you agree to be sentenced as if you had committed the offence as described by the prosecutor.
If you disagree with what the police say you did, you can plead not guilty. You or your lawyer must ask the magistrate for a hearing date. If you plead not guilty, the prosecutor must prove on the hearing day that you broke the law. It is not up to you to prove you are innocent. Another way of saying this is that the prosecutor has the burden of proof and must prove that you are guilty beyond reasonable doubt.
Can I plead guilty and be sentenced in the magistrates court?
You can plead guilty and be sentenced by the magistrate if it is a crime that the magistrates court is allowed to handle.
If it is not the sort of case the magistrates court can handle, your case gets sent to a higher court, like the district or supreme court.
What happens if I plead not guilty in the magistrates court?
The prosecutor presents all evidence to try to prove their case. Each witness takes their turn to tell the magistrate what they know about the case.
You or your lawyer can cross-examine the prosecution witnesses. They are sometimes called 'crown witnesses’. You can give evidence and/or call your own witnesses, but you do not have to.
The magistrate then makes a decision to:
- acquit you (i.e. the magistrate did not think there was enough evidence to prove that you were guilty beyond reasonable doubt) or
- convict you (i.e. the magistrate did think there was enough evidence to prove that you were guilty beyond reasonable doubt).
If you are acquitted, you are free to leave the court house.
If the magistrate decides that you were guilty, you will be sentenced.
What happens at my magistrates court sentence?
After the magistrate says you are guilty, either you or your lawyer tells the magistrate things to help your case, like the fact you have a job. These things are called mitigating factors.
You can give the magistrate references from people who know you. References are only useful if the person writing the reference knows that you have been charged with this crime and knows that you are being sentenced for committing the crime.
The magistrate then sentences you.
If not, how does my case get sent to the higher court?
If your matter has to be dealt with in the higher court, you, or your lawyer will need to advise the court of the way you would like it to get there. There are three ways your matter can get to a higher court:
1. Full hand up committal without cross-examination:
- No witnesses give evidence
- The prosecutor 'hands up' evidence to the magistrate.
- Evidence includes written statements, videos, audio tapes, fingerprint reports and any other evidence which police have to prove their case.
- Your matter is committed to the higher court for trial or sentence depending on whether you plead not-guilty or guilty
2. Registry committal
- you must be legally represented
- all of the documents which the police say are evidence against you are filed in the court
- your matter is transmitted to the higher court without there being an actual court date, you will be sent an notice explaining what has happened
3. A committal hearing
- all or some of the witnesses appear in person to give evidence and can be cross examined.
- you can only have this kind of the committal if the court gives you permission. There must be a reason that the witnesses need to come to court
- The magistrate decides if there is enough evidence for your case to go to a trial in the higher court (this is called a prima facie case). If the magistrate does not think the police have shown enough evidence (that is, they haven't proven they have a prima facie case), the magistrate can dismiss the case.
The magistrate has listed my matter for a committal hearing, can I go to this without a lawyer?
You can have a full hand up committal or a committal hearing, as described in the answer above, without a lawyer. It is a good idea to get some legal advice first. What happens at your committal may affect what charges the prosecution decide to present against you in the higher court and your, or your lawyer’s, ability to negotiate about your charges at a later stage.
What happens after my case has been sent to the higher court?
Once your case is committed, the case is sent to the district court sittings or supreme court sittings. You will be sent a notice by the court. The prosecutors will have six months from the day your matter is committed to present your charges in the higher court. If you have any conditions on your bail undertaking, you need to continue to comply with them until your matter is finalised in the higher court.