Don’t Panic, You Have Options

Being charged with a criminal offence in NSW can feel overwhelming. But pleading not guilty is your legal right – and the Local Court process is designed to ensure fairness. Whether you’ve been charged with a DV matter , fraud, a sexual assault charge, drug charges, theft or another offence, understanding what happens after you plead not guilty is crucial.

In New South Wales (NSW), the difference between an indictable offence and a strictly indictable offence lies in the seriousness of the offence, the Court in which it is heard, and how it progresses through the criminal justice system. Below is a detailed comparison.

Indictable Offence (General Category)

Definition:

An indictable offence is a more serious offence that is generally triable by a Magistrate in the Local Court

Examples include:

1. Assault occasioning actual bodily harm
2. Drug supply
3. Sexual touching

Key Features of indictable offences:

1. Some indictable offences are referred to as ‘table offences’, meaning they can be dealt with summarily (in the Local Court) if both parties agree and the offence is not too serious.
2. Table 1 Offences can be dealt with summarily unless either party elects for a jury trial.
3. Table 2 Offences can be dealt with summarily unless the defence objects.

For more information please visit the Criminal Procedu re Act 1986 (NSW), Schedule 1

Strictly Indictable Offence

Definition:

A strictly indictable offence is the most serious type of indictable offence. These must be dealt with in the District or Supreme Court, and cannot be heard in the Local Court under any circumstances.

Examples of a strictly indictable offence include:

1. Murder
2. Manslaughter
3. Aggravated sexual assault
4. Kidnapping
5. Large-scale commercial drug supply

This article only deals with indictable offences which are dealt within the Local Court.

Step 1: First Appearance – Mention Date

Your first Court date is called a “mention”. This is not a trial – it’s an administrative step. At this point, you will either:

1. Plead guilty (and the matter may proceed to sentencing) ; or
2. Plead not guilty (and the Court sets a timetable for evidence and future mentions/hearings); and/or
3. If you’re unsure, the Court may adjourn the matter so you can get legal advice.

Step 2: Entering a Plea of Not Guilty

If you tell the Court you wish to plead not guilty, the Court will:

1. Record your plea.
2. Set a date for the prosecution to serve the Brief of Evidence; and
3. List the matter for a “reply mention” a few weeks later.

Step 3: The Brief of Evidence

The Brief of Evidence is a critical document. It’s a collection of all the prosecution materials, including, but not necessarily limited to:

1. Police facts and statements;
2. Witness statements;
3. CCTV, photos or forensic reports; and/or
4. Interview recordings

The prosecution or police must serve this on the accused or their legal representative as ordered by the Court.

Step 4: Review and Legal Advice

Once your lawyer receives the brief, they will:

1. Carefully assess the strength of the prosecution case;
2. Advise you on possible defences or legal issues;
3. Identify if any evidence can be excluded or challenged; and/or
4. Help you decide whether to maintain your not guilty plea

This is also when negotiations with police (called “representations”) might occur, which can sometimes result in charges being dropped, downgraded or an agreement as to the factual matrix.

Step 5: Reply Mention – Ready for Hearing?

At the reply mention, the Court will ask:

1. Has the brief been served?
2. Are there any legal issues to raise?
3. Is the accused ready for hearing?

If ready, the Court will set a hearing date and will request a listing advice which a document that gives notice to the Court and the prosecution as to which witnesses will be required for examination and a time to be allocated for the hearing.

If not, further directions may be made by the Court.

Step 6: Hearing in the Local Court

On the hearing date:

1. The prosecution presents its case first, calling witnesses.
2. Your lawyer cross-examines the witnesses.
3. You may call evidence, including giving your own version or calling witnesses.
4. The magistrate considers all the evidence and decides whether you are guilty or not to the required threshold of beyond reasonable doubt.

If you’re found not guilty, you are acquitted and the case is dismissed.

If you’re found guilty, the Court will proceed to sentencing on that day or in a day in the future.

If you are not satisfied with the result of sentencing, or you believe an error occurred during the hearing, you may appeal both the sentence and the conviction. This must be done within 28 days of the sentence.

Step 7: What If the Matter Is Too Serious for Local Court?

Some offences start in the Local Court but are considered strictly indictable offences, meaning they must be transferred to the District of Supreme Courts at some point (e.g. sexual assault, armed robbery). In these cases, the process involves committal proceedings. For more information on the committal process please click here.

Why Legal Representation Matters

Pleading not guilty isn’t about “denying everything” – it’s about asserting your legal rights.

Often, the law isn’t black and white. There may be issues of mistaken identity, consent, illegal search and seizure, or simply not enough evidence for the prosecution to prove its case beyond reasonable doubt.

Having an experienced criminal defence lawyer in Sydney is essential to:

1. Protect your rights;
2. Build a strategic defence;
3. Cross-examine witnesses effectively; and/or
4. Negotiate outcomes

Key Takeaways: The Not Guilty Journey

If you or someone you know has been charged with a criminal offence in NSW and is considering pleading not guilty, don’t face it alone. At National Criminal Lawyers®, our award-winning team, led by Michael Moussa, offers strong, strategic advocacy backed by years of experience. Call 1800 CRIM LAW today for a free consultation.