Choices at Law

CRIMINAL CHOICES-AT-LAW OPTIONS

If you are charged with a Criminal or Traffic offence Rep-Revive Criminal Lawyers® are experts in advising you all the choices at law which are available to you. In fact, we are so exceptional in this field that we can usually offer either four or five choices to consider whereas our competitors only advertise three.

Choice 1:

NEGOTIATION WITH POLICE

If you have a case wherein negotiating with the police or Director of Public Prosecution is likely to be advantageous Rep-Revive Criminal Lawyers® can support, you. Often referred to in America as “plea bargaining” in Australia lawyers tend to call this process “making representations” and/or “making negotiations”. Making representations is a unique and difficult drawn-out process which should only be undertaken only by expert experienced lawyers. Your lawyer must point out in prudent and concise form to the crown several methodological suggestions via written submissions but do so in a way which does not give your case/defence away. In particular, 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
• The possibility/probability of a costs order being made against the prosecution if their case proceeds and ultimately fails.

Alternatively, your lawyers may wish to make representations that the charges are incorrect and/or should be dropped or 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;
• any other mitigating circumstances;

All the above matters need to be raised in a way which does not damage your case. Only skilful experienced lawyers should be trusted during this process as if it is carried out incorrectly it can be adverse to your interest.

Rep-Revive Criminal Lawyers® have experience in having written numerous of representations to the prosecution and can advise you on your prospects of success in this process.

Choice 2:

PLEAD NOT GUILTY

If you decide to plead not guilty you will need to prepare to go to a trial or a defended hearing. 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 then question the witnesses about their evidence; this is called cross-examination. The defendant or their lawyer will 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 or judge/jury 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 or judge may ask for a pre-sentence report before deciding on the sentence.

Rep-Revive Criminal Lawyers® have defended countless hearings and trials and can advise you on your prospects of success in this process.

Choice 3:

PLEADING GUILTY TO THE ELEMENTS BUT NOT TO 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 a damage property charge may allege you damaged four of the complainant’s windows wherein you only damaged one. 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, an if there is an incorrect aggravating factor in the police fact sheet we can argue should be removed (pursuant to the De-Simone principle at law).

Rep-Revive Criminal Lawyers® have conducted countless disputed facts hearings and can advise you on what the police must prove beyond a reasonable doubt.

Choice 4:

PLEADING GUILTY TO THE ELEMENTS AND TO THE FACTS

Where a guilty plea is entered the sentencing court must ascertain the facts of the case before it can pass sentence. If the defendant has pleaded guilty the Magistrate or Judge 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 or Judge considers any prior offences. The prosecution may also put other relevant matters to the court. The defendant or their lawyers must be provided with the opportunity to respond and have any other relevant matters considered. The defendant, 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 the penalty. The Court will then read any other documents such as pre-sentence and other reports, letters of apology, references and or any rehabilitative documents or summaries of programs completed/psychological reports and then the Court will hand down sentence. Currently, the sentencing Choices available to the Court are as follows:

• Full-time Imprisonment;
• A Intensive Corrections Order (ICO) with a home detention condition available;
• A Community Correction Order (CCO);
• A Fine; and/or
• A Conditional Release Order (CRO); 
• A Section 10A.

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 an experienced lawyer such as the lawyers Rep-Revive Criminal Lawyers® can offer. Contact Rep-Revive Criminal Lawyers® now to discuss your Choices. The first consultation is free.

Choice 5:

DIVERSION OUT OF THE CRIMINAL JUSTICE SYSTEM

If a person has mental illness or condition, there are several arguments which can be raised which may divert that person out of the criminal justice system. Some of these arguments can be made in the Local Court jurisdiction (i.e. via sections 14 or 33 of the Mental Health Forensic Procedure Act 1990 (MHFPA)) whereas some are made in the higher courts (Supreme and District).

What is an s14?
Section 14 is a way for the Local Court to divert people with certain intellectual disability, other developmental disabilities and mental disorders away from the Court system. If an application under section 14 is successful, then no conviction will be recorded as there is no finding that the charge(s) have been proven. S14 usually require a treatment order to be put in place normally for the period of 12 months.

What is an s33?
Where “it appears to the Magistrate that the defendant is a mentally ill person”: The magistrate may: (a) order that the defendant be taken to, and detained in, a mental health facility for assessment: s 33(1)(a). If after notification on the advice of the medical officer, the police decide not to apprehend the person AND then 6 months passes the charge faced is be deemed to be dismissed.

What is a special mental health verdict?
When it comes to the District and Supreme Courts where a person raises Mental illness the Court conducts a “special hearing” known as an “unfitness proceeding”. If successful in this proceeding a special verdict of not guilty by reason of mental illness may be returned. Alternatively, a special verdict may also be returned pursuant to s 38 MHFP Act if the jury finds that the person was mentally ill at the time the person committed the offence. If any of the above applications in the District or Supreme Courts is successful, then no conviction will be recorded against the client as there is no finding that the charge(s) have been proven.

Mental health proceedings are very complex however if you engage an experienced law firm such as Rep-Revive Criminal Lawyers® we can advise you on what you need to do to prepare and what information the court will need to know to improve your chances of success. Contact Rep-Revive Criminal Lawyers® now to discuss your choices. The first consultation is free.