Facing the court - a guide for activists

Before court

Facing the court can be a time and resource-consuming exercise. Cases particularly if you are pleading not guilty can drag on for considerable amounts of time. It is vital for you and the campaign to have a long-term commitment to this process.

Charge sheets

Charges for summary offences cannot be laid more than 12 months after the event (section 26(4) Magistrates' Court Act 1989 (Vic) ).

Information sheets are usually attached to the charge sheet, for example saying that under the Magistrates Court Act 1989 (Vic), you can ask for a copy of any material they intend to use to prosecute you with. By writing and asking, you may receive copies of any video footage or still photos, or access to viewing them.

Visit a court

Jurisdiction

Many activists find themselves facing the court in a different state or territory from where they live. This can mean travelling great distance for a court appearance which may be adjourned on the day.

Showing up

You should be in court for every hearing. Although sometimes you can arrange to have a lawyer appear for you at a hearing, it is almost always better to be there in person. Statistics show this regarding the changes of success and the penalty imposed.

Your presence shows the court (and the media) that you care about the case and that you are ready to fight. Also, being there ensures that you will have input into decisions and negotiations that come up in court.

If you have a trial, you have to be in court for every day of it. If you miss a scheduled hearing, the judge could issue a warrant. If you have an outstanding warrant for failing to appear in court, and get into any kind of trouble (e.g. your car gets pulled over), you'll probably be arrested.

Judges may accept extreme excuses for missing a hearing, like funerals or medical emergencies. Conflicts with school or work are not acceptable excuses. Medical certificates are no longer deemed adequate; a letter from a hospital confirming hospitalisation will suffice.

The mention date

If you are charged with a less serious offence (summary offences) or certain indictable (serious) offences which are capable of being heard in the Magistrates' Court, the first court date will be a mention.

If you are on bail, you must attend court on each day that your matter is listed, even if it is only to be adjourned to a later date. If you are on summons, your lawyer may arrange for you not to have to attend court on days where your matter is to be adjourned.

If you or your lawyer has obtained the brief of evidence prior to the mention hearing and it is clear that the charges which have been laid against you are supported by the evidence, your matter may be able to be dealt with on that day as a plea of guilty. This is where the defence lawyer will make a plea in mitigation, putting before the magistrate any matters on your behalf, seeking to mitigate the harshness of any sentence to be imposed.

Your case can be adjourned for a contest mention, at which arguments can be tested and the magistrate may indicate what the likely outcome will be. This may convince you to plead guilty, or convince the prosecutor to drop the charges. The ruling is not binding and a not-guilty plea will be heard at a later date, in a full trial with witnesses. All charges where a please of not guilty is entered will first go through a contest mention.

On sentencing, a magistrate will take a number of factors into consideration, including your personal circumstances, the circumstances of the offending, any prior court appearances, references and the impact on any victim. The magistrate may also take into account a plea of guilty as evidence of remorse and this will attract a discount on sentencing.

However, it is often the case that the police will have laid a number of charges which are unsustainable, or which are duplicitous. (This is sometimes known as a "hamburger with the lot".)

For example, in the situation of a demonstration where property was damaged and some physical violence occurred, the police may lay a range of charges including intentionally causing injury, recklessly causing injury, assault, criminal damage, hinder police, refuse to obey a police direction, resist arrest; intentionally causing injury, recklessly causing injury and assault will be alternative charges relating to the one incident.

If you or your lawyer feels that some charges are unsustainable or duplicitous, your matter may be adjourned for a contest mention hearing. At this hearing, negotiations are entered into with the police informant, the police prosecutor and the defence. If the prosecution agrees to withdraw some charges and the matter can be resolved, it may proceed on that day as a plea of guilty before the magistrate. See Pleading guilty or not guilty?

If an agreement cannot be reached, the matter is taken into the court and usually the defence lawyer will indicate to the magistrate the issues that are in dispute. In some instances, the magistrate will provide a sentence indication advice as to the penalty which would be imposed if a plea of guilty was entered into before that magistrate.

If you want to plead not guilty and contest the charges (which is your right), the matter will then be adjourned for a contested hearing. This hearing is held before a magistrate only. All witnesses are called and cross-examined. The magistrate is the judge of the facts and the law.

If the magistrate is not persuaded of guilt beyond reasonable doubt the charges will be dismissed.

It is possible to apply for costs against Victoria Police once charges are dismissed. Whether costs are granted depends on a number of factors, including the way in which the defence case was run. The police prosecution may ask for costs to be awarded against you as well if you are found guilty of the charges.

If the magistrate finds you guilty of some or all of the charges, a plea in mitigation of sentencing will be made. One can appeal a decision of a magistrate if the appeal is lodged within 28 days. The matter can then be heard in the County Court.

If you are charged with a more serious indictable offence, your matter will be in what is referred to as the committal stream and will ultimately have to be dealt with either by trial or plea of guilty in either the County Court or the Supreme Court.

If your matter is in the committal stream, it is very important that you receive legal advice as soon as possible. See Approaching the court.

To get a lawyer or not

Understanding your legal rights and liabilities and the court process can be complicated and intimidating for activists without working knowledge of the legal system. If you are confident about representing yourself in court and have a clear understanding of relevant laws, you might consider not seeking representation at all from a lawyer.

Most activists, like other people in the community, would prefer to have legal advice and representation from qualified legal practitioners. The hardest thing to work out is who is going to give you the best legal advice.

Finding a lawyer that understands why you do what you do is important but can be very difficult. Many activists have found that lawyers may not understand the framework in which they operate and why they were arrested. Some lawyers may see their role as simply doing everything they can to get a finding of not guilty. It is important to feel that you can communicate with your lawyer and convey all relevant information.

Don't let yourself be bullied by lawyers. Lawyers must act on your instructions, so be clear about what it is you want a lawyer to do for you by getting all the relevant information and making informed choices. Lawyers can be sacked at any time during the proceedings.

Make sure you talk to other people in activist networks to find out what lawyers activists have used in the past and found useful.

Remember that different lawyers have different areas of specialty. Some lawyers may be great in criminal proceedings but not familiar with the law in relation to civil matters. Some lawyers specialise in administrative or family law and may not be of any help in your case.

How do you choose your lawyer?

There are three questions you might ask yourself when deciding which lawyer is the best to assist you with your legal problem:

1. 1) Does the lawyer have expertise in the relevant area criminal lawyer, civil or compensation lawyer, constitutional lawyer?
   
   If you have been charged with a crime, you should seek representation from a lawyer who practises criminal law.
   
   If you have been injured during a demonstration or in some other circumstance, you should seek assistance from an expert personal injury lawyer who can advise you on your rights to compensation.
   
   If you wish to challenge a decision by a government body or authority, or obtain documents under Freedom of Information legislation you may need an administrative and public interest lawyer.
   
   If you are unsure about how to select the right lawyer for your legal problem, consider contacting the Law Institute of Victoria or visiting a community legal centre for advice and assistance and referral.
   
2. Does the lawyer have a commitment and empathy for the social causes you are involved in?
   
   Attending court can be a stressful experience. This is even more so when if you intend to make public statements about important political and social issues during a criminal or civil hearing.
   
   It is important to find a lawyer who understands that you may make decisions not based on whether you will be convicted or not, nor on how much compensation you might achieve, but on the long term impact your case may have on the pursuit of social justice.
   
   Speaking to other activists and reviewing media articles on past cases might help you find the right lawyer to represent you.
   
3. What legal fees will I be billed by the lawyer?

Cost of lawyers

Don't spend any money on lawyers until you've checked whether you can: represent yourself , get legal aid , get help from a community legal centre , or obtain other free or cheap advice. However, don't expect friendly lawyers to do substantial work for you free of charge.

Inform yourself very clearly about what costs are likely. The Law Institute of Victoria says lawyers should give their clients early and accurate estimates of likely costs. Many people, in distress with a legal problem, rush to a lawyer for help, then discover later that they have a bill for many thousands of dollars.

Lawyers are generally very expensive: barristers, for instance, may charge from $500 to $3000 per day; solicitors may charge several hundred dollars per day. Your court case could run over several days, so check all your options before committing yourself to an agreement with a lawyer.

At the same time, there are many lawyers who will offer free or pro-bono advice at first, then let you decide later whether you will hire them for more substantial work, such as days in court. Don't abuse the help of those lawyers who offer advice freely by expecting them to work for many hours or days free of charge. We need to support those lawyers who support activists and community groups.

If you can't afford to pay

There are over 40 community legal centres located in suburbs all across the State. They often have drop-in legal advice services where you can obtain legal advice free of charge.

Legal aid

If you are unemployed or a student, you may be entitled to legal aid. Legal aid is very difficult to get these days, as all governments have made cuts to their legal aid budgets. Priority is given to family and criminal law matters. Matters are strictly merit and means tested.

The vast majority of charges which arise from political demonstrations are summary (i.e. minor) offences, where it is unlikely that people charged will go to jail, especially if they have no (or very few) previous criminal charges. If you are pleading not guilty, under Victoria Legal Aid guidelines, you can only get legal aid for your legal representation if your likely fine is $750 or a more serious penalty and Victoria Legal Aid believes there is a reasonable likelihood of you being found not guilty on the most serious charge.

If you are pleading guilty, you must be at risk of receiving a penalty of at least a lengthy (200 hours plus) community-based order, intensive correction order, suspended sentence or imprisonment. This can often be argued, as magistrates can vary on the penalty imposed.

Sometimes, even if you don't qualify for legal aid under these guidelines, you can argue that your case has special circumstances, because it involves important public policy questions (eg. police abuse and misconduct in making arrests may be such special circumstances). There are also special circumstances guidelines which allow legal aid to be given to people unable to represent themselves because of mental impairment, intellectual disability, youth, or language or literacy problems. These circumstances usually require documentation to support the application.

Nevertheless, always check your entitlement and apply for legal aid through a lawyer. Legal aid can also extend to the funding (at a relatively low level) of private solicitors to act on your behalf. Legal aid need not mean no choice of lawyer, nor need it mean poor representation. Many salaried or low-charging lawyers are more dedicated than, and just as competent as, the high-flyers.

 If you are Aboriginal, the local Aboriginal Legal Service is an option that may be open to you. There are also community legal centres around Australia, which are well worth approaching for legal advice. There is no fee for service at these centres; it's just a question of how much of their time they can provide, given their other work commitments. Some lawyers will give free legal advice to political or social groups or causes they support. Inform yourself through your organisation about what advice is available. Remember that solicitors and barristers act on your behalf, but are legally considered to have a basic loyalty or duty to the court. They are officers of the Supreme Court of the state in which they are registered. So you cannot say to a lawyer, for instance in an assault case: I hit the person, but can you get me off? The lawyer's duty not to mislead the court will then mean that they cannot present facts contrary to what you have admitted to them in private.

The lawyer is ethically bound not to report what you've said or give evidence against you, but at the same time they will not be able to mislead the court. If you have admitted the charge to your lawyer they can support you in a plea of not guilty, but without contesting the facts that you've admitted. The lawyer could also plead for a reduced penalty, or stop acting for you and refer you to another lawyer, if you insist on pleading not guilty.

Duty lawyers

Most courts have lawyers on duty who can provide free, basic support for people who have not had the chance to see a lawyer before court.

Duty lawyers are people employed by Victoria Legal Aid who provide advice and support to people charged with a criminal offence and appear for them if necessary in bail applications and adjournment applications. They can also undertake pleas in mitigation if you are pleading guilty. Generally, they cannot conduct more complex defended cases.

It is not a good idea to rely on the help of duty lawyers as they are often busy and your case may not be a priority. It is a good idea to ring the Registrar beforehand to see if duty lawyers are available at the court you are attending.

Inform yourself

If you have a lawyer, listen to their advice, but also inform yourself about every step of the legal process you are in. Don't leave the decisions to your lawyer.

You are finally responsible for the presentation of your case in court. Don't surrender the control of your case.

In Australia there are no really effective mechanisms by which lawyers are held accountable for presenting an inadequate case on your behalf. If your lawyer fails to prepare or properly present your case, only you will suffer. So stay informed.

Furthermore, there is generally no appeal from your lawyer not properly presenting your case to a court. An appeal court will generally say that they are not interested in any differences you had with your lawyer, and that you should have sorted them out. The bottom line to this is a hard reality: if you are unhappy with the way your lawyer presents your case during a hearing or trial, and if you cannot resolve your differences, your only option is to sack them (to withdraw instructions) and conduct the case yourself. If you prepare for this, at least you will remember your responsibility for your own case.

If you have communication problems with a legal aid lawyer, you can complain to a more senior legal aid lawyer. Stay informed of, and involved in, all the major decisions of your case. Listen to advice, but remember that the decisions are ultimately yours.

Complaints about lawyers

If you become unhappy with the representation being provided to you by a lawyer, you can make a complaint to the Legal Ombudsman or the lawyer's relevant professional association.

Legal Ombudsman

Level 10, 461 Bourke Street
MELBOURNE VIC 3000 (03) 9642 0655 (Melbourne metropolitan)
1800 357 772 (Victoria toll free)
legalomb@vicnet.net.au

Law Institute of Victoria

470 Bourke Street
Melbourne
Victoria 3000.
Tel:(03) 9607 9311
Fax:(03) 9602 5270

Self- representation

Consider self-representation in these circumstances:

• if you feel confident with court procedure,

• if there is to be a credibility battle between yourself and police, and

• if you've informed yourself of all the legal elements of the charges.
  

You may consider self-representation for several reasons:

• if you are not eligible for legal aid, yet cannot afford a lawyer;

• if you wish to directly confront witnesses who are not telling the truth, and

• if you wish to speak strongly and directly to the tribunal of fact (magistrate, judge or jury).
  

For self-representation, you should have three things:

• the confidence to speak in open court, and to argue firmly and clearly against the opposing party;

• the time to fully prepare your case, arrange the collection of statements and research the relevant law (issues of principle concerning the charge and possible defences), and

• the ability to analyse and grasp clearly the elements of the charge, and the significance of the evidence. You should be able to stand back from the emotion of the matter, and assess the strengths and weaknesses of both sides, as if it were a sporting contest. Then you can take some advice and decide what tactics to employ.
  

While you need to prepare and plan your case, there can be some advantages. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence or making a statement yourself. When questioning a witness about events in which you were involved, you are in control of the issues raised, and you can raise argumentative suggestions, which are not possible if and when you give evidence.

In effect, you give evidence twice when you are self-represented. It also does no harm to be able to speak directly to and with the tribunal (magistrate, judge or jury), rather than be regarded as a third party variously called the defendant (in magistrates' courts) or the accused (in a jury trial).

More and more people are forced into self-representation, because of the severely limited public funds for legal aid. So it pays to prepare for the possibility of self-representation.

You must be prepared to do your homework, both by investigating the evidence and by studying the legal issues involved. Having support to do this is important.

In Victoria the courts now have the power to order the Legal Aid Commission to fund your case if they believe it's necessary in the interest of justice. It is important, however, that you have done everything possible to arrange for your representation prior to going to court.

Public statements and contempt

Contempt law is against any public comment on an issue that is before the courts and is to be decided by the courts. Notice though that the issue to be decided is often a narrow one (did a person commit a particular offence), and this does not prevent public discussion of the background or wider context of the events concerned.

So, for instance, the charging of a demonstrator at an environmental action does not prevent others from criticising police operations at that demonstration, nor from talking about what the action was all about. Many lawyers advise against public comment that in any way relates to a court case.

It is not based on a fair interpretation of contempt law, nor on a proper consideration of the right to freedom of expression. Police, courts and conservative lawyers often attempt to block political expression by the threat of contempt action. This is mostly bluff.

Magistrates have no real power of contempt outside their own courtrooms, and contempt actions have generally only been laid after public comments very close to a jury trial. People are not prosecuted for proclaiming their innocence of a charge, which is their right.

As always, seek specific legal advice if you are considering making public comment that may be a contempt, as it can carry the penalty of imprisonment.

Your support network

See also: Activist strategies in court