Criminal Magistrates Court
This comprehensive step-by-step guide covers all aspects of criminal practice and procedure for summary and indictable offences in the Magistrates Court, with supplementary guides specific to traffic offences and Domestic Violence Orders.
The guides provide easy to understand coverage of the procedural aspects of criminal law matters, from arrest and charge through to hearing and/or sentencing, including avenues for appeal and costs applications. Written by experienced practitioners, these guides provide practical tips for lawyers new to this area of work and a detailed overview to assist all practitioners, especially those supervising younger lawyers.
Recent updates to this publication can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Commentaries ”
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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, is ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading NSW civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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“ A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the specific court when issuing a subpoena: see the links to court websites in Power to issue a subpoena above or Further information below. Generally, subpoenas require personal service, unless they are directed to police or other public officers. ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to the issuing party or their lawyer. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ Queensland Courts Queensland Government ”
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“ Criminal - Traffic Commonwealth Offences ”
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“ All criminal offences regardless of their seriousness start in the Magistrates Court. Simple offences proceed to completion in the Magistrates Court. More serious indictable offences commence in the Magistrates Court but will usually be transferred to higher courts. This commentary deals with ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ The client is at the police station having just been arrested. To be able to assist the client it is important to be familiar with, or at least able to refer to chapters 14, 15, 16, 17 and 18 of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’), which cover a wide range of relevant ... ”
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“ To answer questions or not to answer questions … Some practitioners strongly believe that it is best not to get instructions on the allegations before knowing what the police case against your client is. This is a useful rule of thumb because, of course, the client has the right to silence and no ... ”
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“ See s 617 of the Police Powers and Responsibilities Act and Schedule 9, Part 6, Division 2 of the Police Powers and Responsibilities Regulation 2012, commonly known as the ‘responsibilities code’. If identification is an issue, the police may ask the client if they wish to participate in an ... ”
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“ Instructions Even for the simplest of pleas, be sure to take full instructions from the client. ”
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“ Instructions Even for the simplest of pleas, be sure to take full instructions from the client. ”
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“ The Legal Profession Act 2007 (Qld) obliges firms to enter into costs agreements with clients and criminal matters are no different. The client should sign a costs agreement, like any other matter and place advance funding into the firm’s trust account, even if the retainer is a fixed fee. Getting ... ”
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“ Bail applications are governed by the Bail Act 1980 (Qld). If the charges are not that serious or if the client has no criminal history the police may charge the client and then release them to appear in court. This may be either by notice to appear or via an undertaking as to bail with or without ... ”
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“ If your client is not given bail at the watch house, they will be remanded in custody and taken to court as soon as reasonably practicable. Depending on the size of the courthouse, the custody matters will be dealt with in their own court. In the smaller centres, the custody matters will be dealt ... ”
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“ Part 3 of the Bail Act 1980 One of the matters that will need to be taken into account in preparing for a bail application is the question of a surety. Sureties are often granted by magistrates where there is some doubt as to whether the accused will appear. It is important to note that any ... ”
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“ To determine how the client’s matter will proceed it is necessary to determine whether it is a summary offence or an indictable offence. Regulatory and summary offences are dealt with in the Magistrates Court. See s 19 of the Justices Act 1886 (Qld). Summary offences, also known as simple ... ”
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“ The QP9 should contain the client’s criminal history, a factual summary of the details of the offence/s, and the legislation under which the client has been charged. Whilst the client may wish to plead guilty to the offence as charged, the QP9 may not represent the client’s instructions. In this ... ”
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“ Mark the submission ‘without prejudice’. Set out the submission using numbers to allow easy reference in later discussions regarding the matter. ”
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“ At the first return date you can always get a short adjournment, of up to about three weeks, if required to enable any requested specified statements or copies of exhibits to be prepared, copied and delivered and for a second or adjourned conference to be held. Make sure your client has not ... ”
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“ Practice Direction 7 of 2020 deals with online applications for the listing of all criminal matters by legal representatives. All adjournments, sentence dates, interim hearings such as bail or subpoena objections and final hearing dates may be applied for online if by consent. Otherwise, Practice ... ”
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“ If the client wishes to plead guilty, obtain written instructions to that effect from them before proceeding. These instructions should be signed and should include the advice given , confirmation that the client is agreeing to plead guilty to the facts as alleged by the prosecution, that they ... ”
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“ Advise the client about obtaining character references. References must be specific to the offence, addressed to the presiding magistrate at the relevant court and not too long. Provide the Court reference information sheet to the client. ”
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“ A willingness to make recompense to the victim of an offence is an indication of the client’s contrition and remorse. Practitioners should address this issue with the client before the sentence hearing. In the event of the offence having caused some injury, loss or damage, ensure that the issue of ... ”
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“ Practitioners should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report (PSR), or a court ordered psychiatric assessment. If it is likely and an adjournment – usually six weeks for a full background report – will therefore be required, alert the ... ”
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“ Section 12 of the Penalties and Sentences Act sets out what the court takes into account when considering whether to record a conviction or not. Section 9 of the Penalties and Sentences Act sets out the relevant considerations for the court when imposing a sentence. These should provide the ... ”
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“ The procedure in the conduct of a plea is normally as follows: Arrive at court well before the listed hearing time – check online beforehand, and check the list to find out which court room your client’s matter is listed in. ”
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“ Proof of evidence A full statement should be obtained from the client as to all of the circumstances surrounding their case and the evidence that they propose to give. Explain to the client that this is not for the court nor the prosecution, it will only be seen by the client and their lawyers, but ... ”
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“ See s 110B (3) of the Justices Act 1886 (Qld). The Chief Magistrate outlined the procedure and the law relating to the application in Police v DWB [2011] QMC 4 at [4]-[19]. ”
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“ The matter is mentioned by the defence or police prosecutions or the DPP and it is indicated that the matter is ready to proceed. The prosecution tells the magistrate the charges upon which committal is sought. ”
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“ The Penalties and Sentences Act 1992 contains all the sentencing options for adults in all courts in Queensland. Sentencing options really can be divided into three categories those being non-custodial, intermediate and custodial. See the Commonwealth Offences Guide when dealing with Commonwealth ... ”
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“ It is sometimes appropriate to do written submissions on sentence. For some types of offences – for example sexual offences – discussion of the offending behaviour, the client’s circumstances and background and other material to assist the court in its sentencing exercise can be set out in ... ”
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“ An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s GP and any attending specialist – subject, to the client’s ability to pay for such reports. A report from ... ”
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“ A counsellor’s or psychological report is often helpful in putting relevant matters to the court. In serious matters it is often appropriate to obtain a report on the client from a psychologist or psychiatrist as it will flesh out details of the client’s history and psychological circumstances ... ”
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“ Bonds A bond or recognisance is a promise entered into and recorded before a court. There are three kinds of bonds under the Penalties and Sentences Act 1992 (Qld): ”
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“ Suspended sentences are often referred to or thought of as non-custodial sentences however, they are in fact sentences of imprisonment that have been suspended either wholly or partially. This means that the offender will only serve some, if any, time in prison. Any breach of a suspended sentence ... ”
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“ Part 8A of the Penalties and Sentences Act 1992 deals with specific drug and alcohol treatment orders for certain offenders whose criminal behaviour is linked to their severe drug or alcohol use. A treatment order may only be made for an offender if the offender has a severe substance use disorder ... ”
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“ Generally speaking, imprisonment is only ordered as a last resort. That is, the court must be satisfied that there were no appropriate alternative sentences. See s 9(12) of the Penalties and Sentences Act 1992 (Qld). This does not apply to all offences – for example, certain violent offences, ... ”
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“ Your role and your retainer end neither at the moment you sit down after making your submissions on sentence, nor when the bench passes sentence upon the client. The outcome needs to be explained to the client – most lay people can sit in court and listen to a judicial officer give a short ex ... ”
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“ Interstate convictions can be taken into account by the court on sentence, but they do not generally appear on the QLD criminal history that the police tender to the court and they do not have to be voluntarily disclosed. You must however tell the court of any interstate convictions if you are ... ”
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“ Appeals from decisions of the Magistrates Court can be made to the District Court under the Justices Act 1886 (Qld). There is an appeal right to the District Court by any person who has been convicted or sentenced in the Magistrates Court. See s 222 of the Justices Act 1886 (Qld). As appeal is a ... ”
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“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”
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