In NSW, drug possession charges as well as charges
pertaining to self-administration of a drug start and finish in the Local
Court. It should be noted however that the more serious charges (which include ‘cultivate’,
‘import drug’ charges, ‘supply prohibited drug’ & ‘manufacture’ etc) may be
dealt with in the District Court NSW as these offences which are much more serious,
and it should also be noted that they carry a significant term of imprisonment.
But the question is, what happens when a person enters a
plea of NOT guilty to a drug charge in the Local Court?
The first mention
A person who has been charged with a drug offence and wishes
to enter a plea of NOT guilty will have to enter that plea when the matter is
mentioned in court. Once a plea of NOT guilty is entered then the matter will
be adjourned for the police to prepare the brief of evidence and serve it on
the defendant. The brief of evidence (as discussed in other articles on our
website) contains all the evidence which the police will be seeking to rely on
the hearing to find the defendant guilty of the offence.
NOTE: The police must
serve the full brief of evidence no later than 14 days prior to the Local Court
Hearing.
The second mention
After the plea of not guilty is entered and the defendant
has received the brief of evidence from the police, at the second mention the
Registrar will usually assign a hearing date if the defendant wishes to
maintain his/her plea of not guilty. A Court Listing advice must be completed by
the defendant so that the Court can assign the matter a future hearing date
with an accurate time estimate and the court listing advice also allows the
court to be informed of how many witnesses are going to be called for both the
defence as well as the prosecution.
The Hearing
The prosecution at the hearing bears the onus of proving
that the defendant is guilty beyond a reasonable doubt. If the magistrate has
any reasonable doubt, then the charge(s) must be dismissed. For the Magistrate
to make his or her decision as to whether a defendant is guilty or not guilty
the court must hear the prosecution case and later hear the defence case.
The prosecution will start by presenting their case and
calling the prosecution witnesses and asking them questions. The defence lawyer
will be entitled to cross examine the prosecution witnesses. Once the defence
lawyer has finished cross examining the prosecution witnesses then the
prosecutor can re-examine the prosecution witnesses and thereby clarifying any
answers in the re-examination. Once the prosecution has presented their case,
the prosecution will close their case and then it will be the defence’s turn to
present their case.
What is a ‘Prima Facie Case’?
Prior to the defence opening their case the magistrate must make a decision as to whether taking the prosecution’s case (at
its absolute highest) whether the defendant could be lawfully convicted of the
offence(s). The defence lawyer (that is prior to presenting the defence case opening)
can make submissions to the Magistrate as to why the defendant could not be
lawfully convicted based on the nature of the evidence heard in court (so far).
If the Magistrate accepts this, the case against the defendant will be
dismissed without any need to hear from the defence.
The Defence Case
However, if the court decides that there is a prima facie
case against the defendant, the hearing will then progress as normal, and the
court will proceed to hear the defence case. Once the defence case has opened
the defence lawyer will ask the defendant questions and this will be the
defendant’s evidence in chief. Once the defendant has given their evidence in
chief, the prosecutor will be able to cross examine the defendant. The same
process applies to any other defence witnesses who do give evidence as they
will give their evidence in chief and the prosecutor
will have the opportunity to cross examine each defence witness after they have
given their evidence in chief.
Closing Submissions
Once all the evidence has been heard, the prosecution will
then proceed to make submissions as to why the defendant should be found guilty
of the offence. On the other hand, the defence lawyer will then have the opportunity to make submissions as to why the
defendant should be found not guilty of the offence.
Judgment
The Magistrate will then make their decision based on the
nature of the evidence and submissions. The magistrate can adjourn the matter
for judgment (if this happens then the defendant will have to come to court on
a later date for the judgment) or the magistrate can give their decision on the
day.
If the defendant is found NOT guilty of the offence(s) then
the defendant will be acquitted of the charge and in some instances the
defendant can make a costs application to claim his/her legal fees (it should
be noted however that this is very rare and it does
not always happen at the end of every acquittal).
If the defendant is found guilty of the offence, then the
matter will proceed to sentence.
Why Choose Nicopoulos Sabbagh
Lawyers to represent you?
Nicopoulos Sabbagh Lawyers is the
leading Law firm in Criminal Law matters as our office has dealt with the most
complex matters and our office appears in all Jurisdictions in Criminal Law. No
matter is too complex for the team so be sure to book your first Free
Consultation today!
It is very important that you
speak with a lawyer so that you can get the appropriate legal advice which you
require prior to going to court.
Our team of experienced
solicitors are there for you and can help you answer all your questions, so be
sure to contact Nicopoulos
Sabbagh Lawyers.
*This article
correctly reflects the Laws of NSW as at 8th
May 2023.
*Please note that this page or any other pages on our
website (including any other social media platforms for Nicopoulos
Sabbagh Lawyers) are not to be considered as a substitute for legal advice or
even other professional advice. It should also be noted that accessing of this
information from this website does not
create a client-lawyer relationship.