If you are charged with a Criminal or Traffic offence, National Criminal Lawyers are experts in explaining all the options which are available to you at law. National Criminal Lawyers are the only Criminal Law Firms in Sydney that offer four options whereas other firms only advertise three.
Option 1: Negotiation With Police
If you have a case wherein negotiating with the Police or Director of Public Prosecutions (DPP) could be favourable, National Criminal Lawyers ™ can assist. Sometimes this is referred to as “plea bargaining” although this is more of an Americanised term. In Australia, lawyers tend to call this process “making negotiations” and/or “making representations”.
Making negotiations/representations is a long, meticulous and scrupulous process which should only be undertaken by expert senior lawyers. In particular, your lawyer must point out in clear and logical form a number of technical submissions but do so in a way which does not give your case/defence away. For example, when negotiating your legal team needs to point out;
- Whether or not the admissible evidence available is capable of establishing each element of the offence;
- Whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law;
- Whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest;
- The triviality of the alleged offence;
- Any obsolescence or obscurity of the law;
- That the prosecution case if it continues would be perceived as counter-productive; for example, by:
- bringing the law into disrepute or
- because it is a waste of Court, police, witness and defence time and money;
- Whether or not any resulting conviction would be regarded as unsafe and unsatisfactory and thus be subject to an appeal to a higher court; and/or
- The possibility/probability of a costs order being made against the prosecution if their case proceeds and ultimately fails.
Alternatively, your Criminal lawyers may wish to make representations that the charges are incorrect and should be reduced. Again, this is a specialised process wherein a whole other set of factors will need to be raised for the attention of the prosecutors, for example;
- Whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive;
- The youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the alleged offender, a witness or a victim;
- the alleged offender’s antecedents and background, including culture and language ability;
- whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;
- the attitude of a victim or in some cases a material witness to a prosecution; and
- any other mitigating circumstances.
Again, all the above matters need to be raised in a way which does not damage your case. Only the best Criminal Defence Lawyers Sydney should be engaged during this process as if it is carried out incorrectly it can be adverse to your interests.
If you wish to consider the negotiations process which may result in withdrawal or reduction of the charge/s please contact our firm and make a confidential booking with one of our expert senior lawyers. The first consultation is free.
Option 2: Plead Not Guilty
If you decide to plead not guilty you will need to prepare to go to a defended hearing. A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers. In particular on the day of the hearing, the prosecutor, who represents the state, will outline the police case and present evidence; this usually takes the form of calling witnesses. The defendant or their lawyer can question the witnesses about their evidence; this is called cross-examination.
The defendant or their lawyer can then outline the defence case and call their own witnesses and the prosecutor can question or cross-examine the defence witnesses.
The prosecutor and the defence then address the court and the magistrate decides based on the evidence. If the defendant is found not guilty of the offence, he or she is discharged and is free to leave. If the defendant is found guilty, the magistrate decides on the penalty. In serious matters the magistrate may ask for a pre-sentence report before deciding on the sentence.
National Criminal Lawyers have defended thousands of people at defended hearings and can advise you on what the police must prove beyond reasonable doubt. You may choose this option if the prosecution cannot establish the elements of the offence you have been charged with or you have a Defence-at-Law.
Option 3: Pleading Guilty To The Elements But Not The Facts
It is little known that in Australia we have a unique and different set of laws to that of other common law jurisdictions (such as England, Canada and New Zealand). How this works well for you is if the police fact sheet is not correct, and the prosecution will not negotiate, you can seek advice as to whether you may dispute the facts at a special “disputed facts” hearing. For example, the prosecution in an assault charge may allege three punches were thrown when you as the defendant say only one was. If the dispute cannot be resolved through negotiations, then you may be able to have the issue decided at a “disputed facts hearing”. If the case requires a disputed facts hearing then the matter will be set down to when the witnesses can come to court to give evidence on the disputed areas. The hearing is then conducted in the same way as a defended hearing/trial except that the court no longer has to decide if you (the defendant) is guilty (you having admitted this even on your own version of what happened) but rather assess as to what happened this being a decision as to the “facts of the case”. One of the ways to dispute the facts is to argue that there are certain “mistruths” or “relevant facts missing” from the Police fact sheet. Moreover, any aggravating factor in the police fact sheet we can argue should be removed. Refer to our dedicated page on the “De-Simone Principal”.
Our Best Criminal lawyers, Sydney have conducted hundreds of disputed facts hearings and have used this as a basis of reducing any harsh penalties the NSW Courts would ordinarily apply.
Option 4: Plea of Guilty To The Elements And To The Facts
Where a guilty plea is entered, the sentencing court in NSW must ascertain the facts of the case before it can pass sentence.
If the Accused has pleaded guilty, the Magistrate will usually be given the facts set out in the police fact sheet. Once the court has established the facts of the case, the Magistrate considers any prior offences. The prosecution may also put other relevant matters to the Court.
The Accused or their lawyers must be provided with the opportunity to respond and have any other relevant matters considered. The Accused, or his or her lawyer, then has an opportunity to address the court about any matters relevant to sentencing. These are called “submissions in mitigation of penalty”. The Court will then read any other documents such as pre-sentence (now known as “Sentencing Assessment Reports”) and other documents, such as letters of apology, references and or any rehabilitative documents or summaries of programs completed. A psychological reports or medical report can also be used in sentences. The Court will then hand down sentence. Currently the sentencing options available to the Court are as follows:
- Full time Imprisonment;
- New ICO (ICO) with a home detention condition available;
- New Community Correction Order (CCO);
- Fine; and/or
- New Conditional release Order (CRO)
For more information on penalties please visit our Penalties page.
If you agree that you have committed the offence and the police are able to prove so than sometimes it is best to plead guilty at an early opportunity to receive the maximum discount. The early guilty plea shows the Court that you have remorse and contrition for your actions.
Sentencing proceedings are very complex. As it is your liberty and/or livelihood which is being dealt with, we recommend you engage the Best Criminal Lawyers in Sydney. Contact National Criminal Lawyers now to discuss your options. The first consultation is FREE.
