This is the third edition of a book designed for people who wish to defend a charge in court. The book is particularly for those who want to represent themselves; but it is also for those who are represented by a lawyer and who want to better understand court processes.
In this third edition I have revised the book to keep up with rapid and constant changes in the various laws and have widened its scope beyond New South Wales. However, the approach here is to introduce principles of law, rather than detailed law. The book takes examples from New South Wales and Victorian law and practice, to illustrate these principles. It is a type of signpost guide, which alerts to first principles, then encourages research of detail.
The book provides a wide range of information about court procedure, trials and sentencing. It will be of interest to those who find themselves in the strange and often intimidating environment of the courtroom.
Lawyers' fees are often very high and legal aid in criminal cases is reserved for those facing the most serious charges and/or those with little or no income. Even then, legal aid might only be provided for a trial, and not for preliminary hearings in the Local and Children's Courts. The result is that many people are forced to represent themselves without the assistance of a trained lawyer.
While there is an internationally accepted right 'where the interests of justice so require' to legal assistance (International Covenant on Civil and Political Rights (1966) Article 14 (3)(d)), this has been interpreted in Australian law as being limited only to serious cases and in the trial stage only (Dietrich v R (1992) 177 CLR 292). The Dietrich case also requires a person to make a 'reasonable' attempt to secure representation. The courts decide what is 'reasonable'.
There are some valuable general references to the law in New South Wales, Victoria and other States. However, there is very little information on court procedure and next to nothing on how to 'do it yourself'.
This book has been written in the belief that, when facing a charge in court you are best served by finding out for yourself what's going on. Even if you are represented, it is in your interests to inform yourself about the proceedings. If charged and convicted, you are the one who has to live with the consequences. Inform yourself! Don't just rely on a lawyer!
This is not to say that it may not be extremely valuable, at times, to be represented by an experienced lawyer. In the section called Lawyers I discuss the issues you should consider when deciding whether to hire a lawyer or to represent yourself. I also look at some of the things you will need to deal with if you do decide to hire a lawyer, such as:
- lawyers and money;
- your relationship with a lawyer; and
- what to tell and not to tell your lawyer.
Court process need not be intimidating. It is possible to represent yourself in court, and to do it well. You may not become a Rumpole of the Bailey but you should be aware that there are some benefits to self-representation.
Familiarity with court procedure need not take a long time. Law students learn very little of court procedure at university and need to attend court to familiarise themselves. Police prosecutors undertake brief courses to learn the basics. It is not beyond most of us to do the same.
This book is not designed to be a manual containing all possible information, but rather a guide book with signposts to further information and assistance. While court procedure remains relatively constant, many details of the law, and often important details, change fairly regularly. Make sure you check all the important details of the law as they relate to your case before you go to court.
In this book I have tried to set out the basics of:
- arrest and questioning
- bail - release pending trial
- lawyers and self-representation
- court procedure
- hearings and trials
- how to research and prepare for a criminal case
I have also included the following information:
Confronting the legal system can be a difficult and stressful experience. I hope this book makes it less so.