Being charged by police with a criminal offence is stressful. Your greatest concern may be how a conviction on your criminal record will affect your personal and professional life especially if you belong to a professional association which mandates that you are of good character. This includes people in the medical, legal, teaching and financial industries.
In this article, I offer strategies to prevent a criminal conviction being recorded against you in the Magistrates' Court.
Hire the Right Lawyer
The most fundamental suggestion is engaging the correct solicitor for the job. If you must attend the Magistrates' Court to answer a criminal charge, engage a solicitor who specialises in criminal defence work. Moreover, hire a criminal defence solicitor who frequently appears in the Magistrates' Court. You wouldn't engage a criminal defence solicitor to handle a complex business purchase transaction.
The Magistrates' Court has a particular way of operating and unlike criminal cases heard in the County or Supreme Courts, enormous amounts of court and prosecutorial resources are not allocated to every single case in the Magistrates' Court. Cases in the Magistrates' Court are dealt with expeditiously because of the volume of matters listed. Therefore, an experienced criminal defence solicitor will efficiently navigate your case through the court process knowing which issues to raise and which not to raise.
Furthermore, criminal charges progressing through the Magistrates' Court are dynamic and can change complexion at short notice. Accordingly, you need a solicitor who is agile and can properly advise you on how to handle the change in position.
Withdrawal of Charges
An experienced criminal defence solicitor will analyse the police brief of evidence and identify flaws in the police case which may result in your charge being withdrawn by prosecutors. Finding deficiencies in the police brief early is crucial because this will guide the strategy your defence will take.
For example, there might be witnesses who police have not spoken to or obtained statements from. An experienced and proactive criminal defence solicitor will make these enquiries and obtain statements from them if they assist your defence.
Diversion
If the police case has prospects of success, you may be eligible to participate on the Criminal Justice Diversion Program (commonly referred to as 'Diversion'). Diversion is a sentencing option available to first time offenders who are charged with relatively minor offences. There are two pre-conditions of Diversion -
you must be prepared to accept responsibility for the conduct alleged, and
police/prosecutors must recommend you for Diversion by serving on you/your solicitor a Diversion notice. A Magistrate will not grant you Diversion without support police/prosecutors.
In no particular order, the benefits of Diversion are -
you walk away from court with an unblemished criminal record,
it is typically an expedient way to finalise your case saving you legal costs, time and the trauma of attending court,
it is less combative and traumatic than a contested hearing which is adversarial,
it gives you more control over your case because you are able to provide material and make submissions to the court which you wouldn't be able to during a contested hearing.
Making Submissions Addressing the Recording of a Conviction
Under section 8 of the Sentencing Act 1991, a sentencing Magistrate has discretion to not record a conviction against you on a plea of guilty. In considering whether or not to exercise this discretion, the Magistrate must turn their mind to the following considerations -
the nature of your offending, and
your character and past history, and
the impact a conviction will have your economic and social well-being.
Therefore, you should decide early on if you intend to plead guilty to your charges as this will determine the strategy you adopt. If you intend to plead guilty, you should undertake relevant courses and counselling and gather supporting material such as character references to give the Magistrate an insight into your character.
Final Thoughts
I am a firm believer that properly preparing your criminal case is fundamental to a favourable outcome. You should not leave anything to chance because criminal offences have far-reaching consequences on your social and professional life. Sadly, I speak to many clients who regret a finding of guilt or conviction from their past because they did not give their case the attention it deserved.
Feel free to call me on 0431 915 148 or email me at tyson@chamberslawyers.com.au if you have been charged with a criminal offence.