Frequently Asked Questions
Please click on the question(s) below that interest you.
1. What is the process for representation on a Summary Charge?
Once you instruct us we will obtain your charge sheets and will obtain a copy of the prosecution brief from the police. Once received, the brief will be analysed and we will advise on the course of action that should be pursued.
Your first appearance in the Magistrates’ Court is called a mention date. The purpose of the mention date is to determine whether you will be pleading guilty or not guilty. The matter can only proceed that day if you plead guilty to the charges.
If charges need to be negotiated then the matter will need to be adjourned to a contest mention. This is a negotiation stage. Many cases resolve at this point however that is not possible in all cases and the matter may need to be further adjourned to a contested hearing. It is at this stage that witnesses are called and cross examined.
If you are not happy with the outcome in the Magistrates' Court an appeal can be lodged and the matter will then be heard in the County Court. You should note that in lodging an appeal there is always a risk that your penalty can be increased, although this does not happen often.
2. How are Indictable Offences managed?
Serious indictable offences commence in the Magistrates' Court. The first appearance is a filing hearing. At that point dates will be set for the service of the hand up brief and the next date you are to attend court. The hand up brief contains all witness statements, forensic evidence and a transcription of your record of interview. The next stage is the committal mention. At that point the court will be advised on whether you are pleading guilty or not guilty.
If you are pleading guilty, you will then be committed for trial to the County or Supreme Courts. If you are pleading not guilty, your matter will be adjourned to a contested committal. At a contested committal, witnesses are called and cross examined. If a Magistrate determines that there is enough evidence that a jury could convict then the matter will proceed to the County or Supreme Court (depending on what the charges are).
If there is not sufficient evidence you may be discharged at the conclusion of the committal.
3. What happens if I am committed for Trial?
If you are committed for trial the following appearance will be required:
A case conference is heard before a County Court judge to identify the issues involved in the case.
A directions hearing is held to sort out preliminary matters such as anticipated length of trial, what witnesses are required and to check that funding is in place for the trial. The prosecution will provide a copy of their trial opening and the defence will detail it's case.
Either a plea date will be set or a trial date will be set.
If you are pleading not guilty, a trial will be conducted before a jury of 12 people. Their role is to determine whether you are guilty or not guilty.
An appeal can be lodged at the conclusion of a plea or a trial. The appeal can be against conviction or sentence or both. The appeal will be heard in the Supreme Court, in the Court of Appeal.
4. What is an Accredited Specialist?
An Accredited Specialist is a solicitor who has successfully completed a rigorous assessment program set by the Law Institute of Victoria. This includes a written examination and other tests to demonstrate that the solicitor has a sound, practical approach to the area of speciality.
Stary Norton Halphen Lawyers has six Accredited Criminal Law Specialists.
5. What is the difference between a Solicitor and a Barrister?
Solicitors generally prepare a case and a barrister usually argues the case in court. However, there are solicitors who do both - such as our firm.
As an advocacy based practice, Stary Norton Halphen Lawyers is thus able to both prepare case and advocate. We in conjunction with our clients determine whether we argue the matter in court or appoint a Barrister to do so.
6. How do I know how much my case will cost?
We will tell you in writing after discussing your options with you in detail.
7. If I am arrested or if the Police want to interview me what do I do?
Contact a lawyer immediately. The police must advise you that you have the right to contact a lawyer. Do not answer any questions apart from your name and address until you have spoken to a lawyer.
8. Does making a "No Comment record of Interview" imply that you are guilty and have something to hide?
No. No adverse inference can be drawn from silence. You have a right not to answer questions. The police will tell you that you are not obliged to answer their questions.
9. The police want to come on to my property and search – should I let them?
Only if they have a warrant.
10. Is it up to the police whether I am released from custody?
Only in the short term. Any person arrested must be released or brought before a court to determine whether they should be released on bail. While the police can oppose bail, it is ultimately a decision for a court to make after hearing the whole application.
11. Is it true that you can only apply for bail once?
Usually yes you can only apply for bail once. If it is refused there are restrictions as regards when you can make a further bail application. You must show new facts and circumstances.
12. Will my case be heard in the Magistrates’ Court or County Court?
That depends on whether you are charged with a summary offence, an indictable offence or an indictable offence triable summarily. Summary offences can only be heard in the Magistrates’ Court and can be heard in your absence. Indictable offences can only be heard in the County or Supreme Courts before a jury. Indictable offences triable summarily can be heard in the Magistrates’ Court but only if you consent to them being heard.
13. If I win my case can I claim my legal costs?
Yes you can in the Magistrates’ Court but this is at the discretion of the Magistrate.
Costs cannot be recovered in the County Court or the Supreme Court.