Last updated 12 August 2016
The defendant at a first appearance has several options.
Enter no plea
A defendant may choose to seek an adjournment for legal advice or to obtain the QP9 and consider their position. If a magistrate grants the adjournment, the defendant will be required to return to the same court on the next date. A period of two to three weeks would generally be considered a suitable amount of time to obtain legal advice. A longer period may be granted in special circumstances but this cannot be presumed.
Every person charged with an offence is entitled to put the prosecution to proof. If a defendant wishes to see all of the evidence collated by police in respect of a charge, either to decide what plea should be entered or to determine the scope of culpability for an offence that is accepted, the matter may be set down for a hearing without a plea being entered so that a full brief of evidence can be compiled and provided by the prosecution (see further below). Particularly in respect of a serious offence, the defendant has the right to a preliminary committal hearing in the Magistrates Court before proceeding to trial or sentence in a superior court.
A guilty plea may be entered at any stage of the proceedings from the first appearance until a final determination of guilt or innocence. A formal plea is again asked of a defendant upon committal to a superior court. However, once a guilty plea is entered, it is very difficult to withdraw it.
Plead not guilty
If the charge is to be heard summarily, the matter will be adjourned for trial before a magistrate. This is called a summary hearing. A summary callover will be held two weeks after the matter is set down for a summary hearing, to enable the defence and prosecution to advise the result of case conferencing. Case conferencing is a formal negotiation process between the prosecution and defence aimed at the early resolution of proceedings. A full brief of evidence must be made available within five weeks of the summary callover, and at least two weeks before the summary trial. A brief of evidence will generally comprise signed written statements of all witnesses to be called and any exhibits referred to. Examples of common exhibits include photographs and tape recordings. If lawyers are engaged, a defendant need not appear at the review mention and need only appear at the summary hearing. If not legally represented, appearance at every mention and at the hearing is required.
If the charge is to proceed on indictment, the matter will be adjourned for a committal callover at which time the matter will either be set down for a committal mention or a full hand-up committal hearing date, by which time the brief of evidence should be provided to the defence within the time frame set by the Practice Direction No. 13 of 2010. At times, the prosecution will seek a further adjournment to complete the brief. It is also open to the defence to seek an adjournment if there has been insufficient time since the provision of the brief to peruse the materials. However, strict guidelines for the conduct of proceedings have been set by the courts, and it should never be assumed that such adjournments will be granted.
Once the evidence has been provided, a defendant may list the matter for a committal hearing. The defence is not permitted to cross-examine witnesses as of right. If a defendant or his lawyers wish to cross-examine a witness and the prosecution does not consent, then an application needs to be brought before a magistrate. A magistrate can only allow cross-examination if satisfied there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. The process ensures that questions are put about issues of particular relevance that will be specified in the magistrate’s orders (ss 83A(5AA), 110B Justices Act 1886 (Qld) (Justices Act)).
Once the police brief of evidence is received, a defendant may not wish to contest the charge, but instead consent to the matter going directly to a superior court. This is called consenting to a full hand-up committal for either trial or sentence on the charge.
If the charge is to be heard summarily, the magistrate can hear the sentence immediately. Alternatively, if there is a basis for it, an adjourned sentence date or time can be sought. Usually the matter proceeds immediately.
If the charge is to proceed on indictment and must be heard in a higher court, and the defendant wishes to accept liability for the conduct without requiring police to produce all of the evidence they have, this can be indicated by advising the court that the defendant wishes to consent to the presentation of an ex officio indictment. The Crown (the name given to the Office of the Director of Public Prosecutions, whose lawyers prosecute indictable offences) has the power to present the charge directly in the District or Supreme court without antecedent committal proceedings in the Magistrates Court. A defendant who consents to this procedure saves the court, the investigative and prosecutorial agencies and therefore the public the more extensive costs of alternative proceedings. Upon sentence, the savings to the system and the timeliness of a plea of guilty entered at the first opportunity are factors that show acceptance of responsibility and a willingness to facilitate the course of justice (Cameron v The Queen (2002) 209 CLR 339) which may mitigate any penalty to be imposed (s 13 Penalties and Sentences Act 1992 Qld)).
Apply for bail
If a defendant has not already entered into a bail undertaking with police (i.e. they have appeared in answer to a summons or notice to appear or have been held in custody), an application for bail may be made at the first appearance (save for in respect of offences that carry life imprisonment such as murder, in which case only the Supreme Court has power to grant bail).
Bail on the defendant’s signing of an undertaking to appear on the next court date is commonly granted in those circumstances. Sometimes conditions will be attached to the grant of bail, for example reporting to a police station on particular days or the provision of a surety or cash deposit. The undertaking to be signed is kept with the registry staff. A defendant must sign the undertaking at the registry before leaving the court (for further information see the Bail chapter).
Non-appearance at court
When a summons is issued to initiate court action, a defendant need not appear personally if a lawyer is instructed to appear instead. If there is no appearance at all on the defendant’s behalf, the magistrate may proceed to hear the case ex parte (i.e. in the defendant’s absence) (s 142 Justices Act).
If there is no appearance in response to the notice to appear, again a court can proceed ex parte or a warrant may be issued to have the defendant brought before the court (s 389 Police Powers and Responsibilities Act 2000 Qld) (PPR Act)). Similarly, if a person does not appear in accordance with a bail undertaking, then a warrant may be issued (ss 28, 28A Bail Act 1980 (Qld), s 367 PPR Act).