The Process of Prosecutions in the Courts of WA
If you have been charged with an offence, whether minor or serious in nature, you should seek the advice of a lawyer, to assist you to understand the prosecution, the court process, the nature of the charge against you, and the various avenues that you may take.
This article aims to provide a basic understanding of the process and procedure involving criminal prosecutions in Western Australian Courts.
How is a prosecution commenced?
Following being charged the police will require you to attend court. The police can do this in either of the following three ways:
- By having you enter into a bail undertaking;
- By issuing you with a summons to attend court; or
- By issuing you with a court hearing notice.
If you are charged with a serious offence and are granted bail you will be required to enter into a bail undertaking to attend court on a particular date and time. Upon entering into the bail undertaking you are released from custody and into the community while your matter moves through the justice system.
Bail can be granted by the police following the charge being laid. However, the police do not always grant bail. If the police refuse you bail, they must place you before the court as soon as practicable and you may then apply to the court for bail.
If bail is refused by a court, you will be remanded in custody until your matter is finalised or until another bail application made to the court is successful.
A court summons is another way for the police to require a person to attend court. The summons is usually accompanied by a prosecution notice and a statement of material facts which outline the allegations of the charge.
A summons is a legal document which is provided or posted to an accused person and which legally binds that person to attend court on a particular date and time.
Court Hearing Notice
A Court Hearing Notice can be provided or posted by the police to an accused after the charge has been laid. The document sets out the date, time and place that the matter is listed in court.
If an accused is given a Court Hearing Notice, there is no legal obligation on them to appear in court. An accused who is issued with a court hearing notice can, instead of attending court, decide to enter a plea of guilty or not guilty in writing and post it to the court within a reasonable time before the court date.
If an accused does not to attend court after being issued with a court hearing notice, the magistrate may decide to find them guilty of the offence and proceed to sentence in the accused’s absence. In the event that this occurs the court will post the person a notice of court result.
In which court will my charges be determined? Summary, Indictable and ‘Either Way’ Offences in Western Australia
In Western Australia a criminal charge can be determined and finalised in either of the three following courts:
- Supreme Court
- District Court
- Magistrates Court
How the offence is described in the statute will impact upon whether the charge is be determined on an indictment in the District or Supreme Court or as a summary offence in the Magistrates Court.
All criminal charges commence in the Magistrates Court. There are three types of criminal charges that come before the court:
- Simple offences
- Indictable Offences
- Either way offences
A criminal charge which is referred to as “an offence” in the relevant section of the statute is a summary or simple offence. Summary offences are dealt with exclusively by the Magistrates Court of Western Australia.
Examples of summary offences include:
- Disorderly Behavior in Public under section 74A of the Criminal Code
- Driving under the influence of alcohol under section 63 of the Road Traffic Act 1974;
- Driving with a blood alcohol content of or above 0.08 under section 64 of the Road Traffic Act 1974.
- Possess or use a prohibited drug under section 6 (1) of the Misuse of Drugs Act 1981;
- Common assault under section 313 of the Criminal Code;
A criminal charge which is referred to as a ‘crime’ in the relevant section of the statute is an indictable charge. This is a charge which can only be dealt with on an indictment and determined in either the District or Supreme Court. If the charge is indictable the matter must be committed from the Magistrate Court to the District Court or Supreme Court as the case may be.
Examples of “crimes” that proceed on indictment include:
- Sexual penetration without consent under section 325 (1) of the Criminal Code;
- Murder under section 279 of the Criminal Code;
- Deprivation of liberty under section 333 of the Criminal Code.
- Grievous Bodily Harm under section 297 of the Criminal Code
‘Either way’ offences
An ‘either way’ offence arises where the relevant statutory provision refers to the offence as a ‘crime’ but also provides for a “summary conviction penalty”. The statutory provision to the offence will, in these circumstances, contain two maximum penalties; one maximum penalty where the matter proceeds on an indictment and another maximum penalty where the matter is dealt with summarily in the Magistrates Court.
For example, s 301 of the Criminal Code provides that a person who unlawfully wounds another is guilty of a crime and carries a maximum indictable penalty of 5 years imprisonment. But this offence also contains a maximum summary conviction penalty of imprisonment for 2 years and a fine of $24,000.00.
An ‘either way’ offence will be dealt with by the Magistrates Court unless an application is made by the prosecution to have the matter determined on an indictment in the District or Supreme Court pursuant section 5(2) of the Criminal Code. Regard is had to the following factors when determining whether a matter should be heard on indictment:
- How serious the offending is;
- Whether the accused would be sufficiently punished if dealt with summarily;
- Whether a co-accused is to be tried on indictment;
- Application of division 2A of the Sentencing Act 1995 (WA);
- Whether the matter is part of a course of conduct of the accused; and
- The interests of justice.
Examples of ‘either way’ offences include:
- Fraud under section 409 of the Criminal Code;
- Possessing stolen or unlawful property under section 417(1) of the Criminal Code;
- Being armed in a way that may cause fear under section 68 of the Criminal Code;
- Indecent assault under section 323 of the Criminal Code; and
- Criminal Damage under section 202 of the Criminal Code.
APPEARING IN COURT AND DECIDING TO PLEAD GUILTY OR NOT GUILTY
At the first court appearance, the charges against the accused are read out by the Magistrate. If the accused has not already received them the Statement of Material Facts and prosecution notices should be provided by the prosecution. These documents specify the charge that the accused is facing and the factual allegations of the offence.
The accused person will have the opportunity to plead guilty or not guilty, however, the plea is not required to be entered at the first hearing and more often than not an adjournment of the matter is granted to the accused to enable them to obtain legal advice, .
It is strongly recommended that you seek legal advice from an experienced criminal lawyer before entering a plea to any criminal charge - For more detailed information, read our article on things you should know before pleading guilty or not guilty.
If the accused participated in an electronic video record of interview, the accused or their lawyer is entitled to have a copy given to the recorded interview within 14 days of being charged or as soon as practicable.
PROCESS FOLLOWING A PLEA BEING ENTERED TO A SUMMARY CHARGE
If a plea of guilty is entered to a summary charge the police will then read out the Statement of Material Facts in open court. The Magistrate will then either sentence the accused or adjourn the matter to another date for sentencing.
If a person pleads not guilty to a summary charge, they will proceed to a criminal trial before a Magistrate. The prosecution will then be required to disclose to the accused, or their lawyer, all of the evidence the prosecution intends to rely on. This will include copies of the prosecution witness statements, videotaped interviews (such as Police Interviews) and CCTV footage.
During this process of disclosure of the evidence there are a number of things that may occur which avoids the need for the matter proceeding to a criminal trial including:
- A change of plea by the accused to guilty because the evidence against them is overwhelming;
- A downgrade of the charges following plea negotiations between the defence and the prosecution;
- The police discontinue the charge because the prosecution case lacks strength or because it is in the public interest to do so.
PROCESS FOLLOWING A PLEA BEING ENTERED TO AN INDICTABLE CHARGE
If the accused person pleads guilty to an indictable offence at the first reasonable opportunity their matter is fast tracked to the District or Supreme Court for sentence. The plea of guilty will result in a significant discount of up to 25% on the sentence imposed.
If the accused person does not plead guilty then the matter is adjourned to a police committal mention in the Magistrates Court in 12 weeks’ time. In the interim the prosecution is required to serve on the defence all of the evidence that is being relied on, including copies of the witness statements, CCTV footage, forensic materials, and video records of interview.
After a copy of the evidence has been served on the defence, the matter is adjourned from the police committal mention to a state committal mention hearing. The state committal mention hearing is still in the Magistrates Court but by this time the carriage of the matter has changed hands from the police to the Office of the Director of Public Prosecutions (the ODPP) where a file manager has been allocated to prosecute the matter.
Upon receipt of the file containing the evidence the prosecutor at the ODPP reviews the brief of evidence and makes a decision about whether there is a reasonable prospect of conviction and whether the charge should proceed to the District or Supreme Court.
During this process there are a number of things that may occur which may avoid the need for the matter proceeding to trial:
- A change of plea by the accused to guilty because the evidence against them is overwhelming;
- A downgrading or amendment of the charges following plea negotiations between the defence and the prosecution;
- The ODPP discontinue the charge because the prosecution case lacks strength or because it is in the public interest.
Where the charges are downgraded or amendments are made as a result of negotiations between the ODPP and the defence, the accused person will enter a plea of guilty to the remaining charges which will then either be committed to the District Court or Supreme Court for sentencing, or if the charges can be determined in the Magistrates Court, the matter proceeds to sentence in the Magistrates Court.
If negotiations between the defence and the ODPP reach an impasse and the accused person maintains a plea of not guilty, the matter is then committed on a plea of not guilty to the District or Supreme Court for trial.
Once the matter is committed to the District or Supreme Court it proceeds to a Trial Listing Hearing. Prior to this time the ODPP are required to file an indictment and provide the defence with an updated indexed and paginated brief of evidence.
At the Trial Listing Hearing the ODPP and the defence will indicate to court the estimated length of the trial. The court will also require the parties to advise whether there are any legal matters which require a directions’ hearing for the court’s ruling prior to trial. If not, the matter is then listed for a trial before a judge and jury.
Need Legal Advice?
Andrew offers a range of criminal law services and he can guide you through your legal matter whilst working towards the best outcome for your case.
Call Now: (08) 9278 2575
This post is informative onl. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.