Commonly asked questions about serious offences

Serious offences include but are not limited to:

  • Murder
  • Manslaughter
  • Serious drug offences
  • Violent offences
  • Serious sexual offences
  • Robbery

Possible defences to criminal charges include but are not limited to:

  • Self defence
  • Duress
  • Necessity
  • Intoxication (this may have a bearing on the offender’s intent)
  • Honest and reasonable mistake
  • Automatism
  • Mental illness

If you have been charged with a serious indictable offence, then the issue of where your case will be heard is of paramount importance. This is because lower maximum penalties apply in the Local Court, which is lowest level court in NSW. A lawyer can be of great assistance in negotiating with the police or prosecution, to give your case a better chance of proceeding in the Local Court.

However, some serious offences are “strictly indictable”, meaning that they are considered too serious to be dealt with in the Local Court. Strictly indictable charges can only be dealt with in the Supreme or District Court.

Deciding how you will plead is the most important decision you will make. Pleading guilty means that you accept responsibility for the offence charged, and a penalty will be imposed by a court, which reflects the seriousness of the offence and your personal circumstances. Once you plead guilty it is very difficult to retract. If you plead not guilty, there will be a hearing in court, where a magistrate, judge or jury will determine your guilt or innocence.

Remember that there is a presumption of innocence, so if you believe you did not commit the crime, or that the charge is excessive, a “not guilty” plea will mean that the prosecution has to work to prove your guilt. It is extremely important to seek legal advice before you plead, as you may not be aware that a lesser charge is more appropriate for the offence you committed, or that there is a defence you can offer for committing the offence.

An early plea of guilty may have advantages, such as:

  • You receive a lesser sentence
  • You don’t have to endure court for so long and the matter is dealt with quickly
  • You may save money in legal costs

But it may also mean that:

  • You cannot appeal the conviction
  • You will pass up the chance of being acquitted
  • You end up with a criminal record

If you plead not guilty to a criminal charge, and your guilt or innocence is to be determined in the District Court or Supreme Court, then a trial will be held, typically before a judge and jury. If any of the evidence is in dispute, pre-trial argument will usually be heard by the judge before the jury is selected. Once a jury is selected, lawyers for the prosecution and defence will have an opportunity to introduce the case. After that, the prosecution must present its evidence.

In our criminal justice system, it is a fundamental principle that the accuser must prove its case. In other words, you are not guilty of any offence unless and until the prosecution presents evidence which is sufficient to prove the offence, beyond any reasonable doubt.

A defendant is not obliged to present any evidence to answer a criminal charge against himself or herself. However, in practice, if a defence is available to you, then evidence of this defence would then be presented, on your behalf, to strengthen the case for acquittal.

Once the prosecution and defence have presented their evidence, the jury is asked to “deliberate” (discuss the case in private) and reach a verdict. If you are found guilty and sentenced to imprisonment you can appeal. It is rare for bail to be granted once you have received a prison sentence (this only happens in exceptional circumstances.)

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