Many accused persons and their family members find the court process in a criminal case confusing. It also tends to last much longer than they had expected. This article attempts to outline in a simple manner the court process for any criminal charge.
Arrest & Charge
The initial process just before being charged involves the police arresting you, either forcefully or by appointment. The police after arresting you will usually attempt to interview you. The police have the power to detain you to interview you, but the only information you have to provide by law is:
- Your name;
- Your date of birth; &
- Your address.
After being interviewed, if there is sufficient evidence against you the police will prefer charges against you. This involves the filing of a “prosecution notice” in the Magistrates Court, and then a number of appearances in court until your charges are finally resolved.
What happens next depends on whether you are granted bail, or refused bail by the police.
If police refuse your bail, you will remain in the police lock-up until you appear in court at the next reasonable opportunity. If you are in the Perth metropolitan area, you will at some point be transferred to the “Perth Watch House”. This is a large police lock-up at the Perth Police Station.
If you are in a regional lock-up you will remain there until taken before the court.
The police can give you bail from the police station to your first appearance in the Magistrates Court. In this case, they will provide you with bail papers outlining the terms of your bail, and the date for your first appearance in the Magistrates Court. You must comply with police bail or you will be arrested and end up in the lock-up.
First appearance in Magistrates Court: on police bail
At your first appearance, the Magistrate will read the charges to you and ask if you understand them. You will not usually be required to enter a plea at this stage, and the court usually allows a number of adjournments of several weeks’ duration to enable you to obtain legal advice.
First appearance in Magistrates Court: bail refused
If your bail was refused by police, you may apply for bail at your first appearance. Note however that if bail is refused, you generally have to show a failure to present your case for bail; or changed circumstances; to have it reconsidered. We do not recommend you apply for bail without proper legal representation.
Either first appearance in the Magistrates Court is called a “mention” hearing. Subsequent adjournments are also called “mentions” until you progress a matter towards trial with a plea of not guilty. Every single criminal charge in Western Australia commences in the Magistrates Court, whether it is trespass or murder.
Plea of guilty in Magistrates Court
If you plead guilty in the Magistrates Court, your case will either:
- Proceed to sentencing in the Magistrates Court or District Court, depending on the type and seriousness of the charge; or
- Proceed to sentencing in the Supreme Court, if it is a charge of murder or associated offences such as manslaughter.
If your charge is simple and the penalty your are facing is not serious, your sentencing may proceed straight away.
In more complex cases, reports must be ordered to assist the court with sentencing but also to provide you with more sentencing options. These include pre-sentence, psychological and psychiatric reports.
Your sentencing may also be adjourned if you require materials such as references to support an application for a spent conviction; or if there are disputes about the facts of the offence.
Plea of not guilty in Magistrates Court
If you plead not guilty in the Magistrates Court, the process depends on whether it is a charge that must be dealt with in the Magistrates Court; or a District or Supreme Court charge.
Magistrates court charge process: plea of not guilty in Magistrates Court
In the Magistrates Court, there will usually be at least one pre-trial hearing of short duration which enables the court to list a trial. This is called a trial allocation hearing. At this hearing the court will confirm if you are ready to list a trial, and provide trial dates.
The trial allocation hearing can be several months after you are first charged.
Your trial will then be listed several months after the trial allocation hearing. For example cases being listed at trial allocation hearings in September 2021 are not getting trial dates until February – March 2022.
In simple cases involving trials shorter than a day, there is no requirement for a trial allocation hearing and your case can just be listed for trial at the earlier mention hearing.
At your trial, all relevant evidence will be called and the Magistrate will make a finding that you are guilty or not guilty of the charge.
If you are not guilty, the Magistrate may make an order for costs. If you are guilty, the Magistrate may proceed to sentencing immediately or in some cases may adjourn to obtain further materials for sentencing.
District or Supreme Court charge process: plea of not guilty in Magistrates Court
If your charge is one that must be dealt with in the District Court or Supreme Court, it will still proceed through the Magistrates Court for a number of pre-trial hearings before being “committed” (sent) to the District or Supreme Court.
The pre-trial hearings are as follows:
Magistrates Court appearances
- Police committal mention: 10 weeks after the mention date on which you requested your case proceed to trial. This is listed in the court in which you were charged, Ie Fremantle or Rockingham. At this hearing, the court confirms the police have provided you with full disclosure of all of the evidence they have against you. If it hasn’t, the court will adjourn to a further police committal mention hearing until disclosure is provided; &
- Disclosure/committal hearing: 6 weeks after the police committal mention, if full disclosure has been provided. This hearing is always in Perth Magistrates Court, regardless of whether you were charged in another metropolitan court such as Midland or Joondalup. The DPP then takes over the prosecution from the police. There are usually several disclosure/committal hearings to work out pre-trial matters such as disclosure of evidence; the appropriate charges; and other matters.
At the conclusion of the disclosure/committal hearing process, if the case is ready for committal, the court will “commit” (send) your charges to the District or Supreme Court, depending on the type of charge.
The Magistrates Court process from being charged to your trial can take anywhere from 6-12 months to conclude, but sometimes it will be longer or shorter than this depending on the particular case.
District Court appearances
In the District Court, there is usually at least one, but sometimes several further pre-trial hearings:
- Trial listing hearing: This is your first appearance in the District Court. The court will confirm the DPP has filed the required court documents, and that your matter is otherwise ready to be listed for trial. The court aims to list a trial on the first appearance, but this is not always possible. This hearing is usually 8-10 weeks after the disclosure/committal hearing at which you were committed for trial;
- Directions hearing: This hearing will canvas important pre-trial issues such as admissibility of evidence and separate trials. The types of issues which might require a directions hearing are varied and numerous; &
- Pre-recording of evidence: In a sexual offence case, the “complainant” (person who makes the allegation) may have their evidence pre-recorded well in advance of the hearing, usually when they are a young child.
The next hearing will be your trial, which will be heard before a Judge and jury. The trial is usually listed about one year after the trial listing hearing. If you are acquitted, you will be released but are not entitled to any costs. If you are convicted, again your sentencing may occur immediately but will often be adjourned to provide the court with further materials relevant to sentencing.
The District Court process, from your first appearance in the Magistrates Court, can take up to two years to finalize.
Supreme Court appearances
The Supreme Court process is similar to the District Court process, but involves a “first appearance” hearing, then usually several status conferences. There is also “voluntary criminal case conferencing” in the Supreme Court, which involves lawyers attempting to resolve issues at a special pre-trial hearing.
The time to trial in the Supreme Court is usually less than in the District Court. Otherwise, the process of trial and sentencing / acquittal is the same in the Supreme Court and District Court.