Page updated on: Friday April 23, 2010
The Duty Lawyer will first ask for the case to be remanded to allow you to get legal advice. Usually this will be for two weeks. You will need to instruct a lawyer, speak to a Community Law Centre or apply for legal aid.
Charges are divided in to three classifications. The way you proceed if you are pleading not guilty depends on how the charge is classified.
A summary offence is generally any minor offence which carries a penalty of up to three months’ imprisonment. This includes most offences punishable solely by a fine and infringement offences. All charges under the Summary Offences Act are summary offences.
Summary offences are dealt with by a Judge (or Justice of the Peace) alone. There is no jury.
When you plead not guilty to a summary offence, you will be remanded for approximately four weeks for a status hearing in the District Court.
You can represent yourself at the status hearing (or bring a “McKenzie Friend” who may be allowed to sit with you and assist you), although it is often more advisable to instruct a lawyer.
Indictable offences are serious crimes, generally with a maximum penalty of greater than 3 months' imprisonment. Indictable means that you have the right to a jury trial.
There are two types of indictable offence:
Electable offences are indictable offences which may also be tried summarily – i.e. you can elect whether you want to be heard by a Judge alone or by a Judge and jury. Most offences are electable offences. The Crown or the Police can choose whether to lay the charge summarily or indictably. If they have not specified, you get to choose whether you want to be heard by a Judge or a jury.
Offences are usually purely indictable if they carry a maximum penalty of more than 10 years’ imprisonment. They may be heard in the District Court or the High Court. The Judge decides on a sentence once the jury has determined a guilty verdict.
Your lawyer or the Duty Lawyer will advise you if the offence is indictable. If you are being charged with an indictable offence there is a different process after the first appearance. This resource does not deal with those situations and if you have been charged with an indictable offence or are appearing in the High Court, you need to instruct a lawyer or apply for legal aid as soon as possible.