Criminal, Traffic & Corporate Regulatory
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An indictment is simply a written charge presented to the Supreme Court or District Court. Indictable charges are initially brought in the Magistrates Court where there is usually a preliminary hearing, referred to as committal proceedings. At the committal proceedings, the Magistrate will decide whether the defendant has a case to answer on the charge and, if so, will send the case out of the Magistrates Court jurisdiction to a higher court, being either the District Court or the Supreme Court, depending on the seriousness or complexity of the charge.
Once the Magistrate commits the matter for trial the charge is reduced to writing in a document called an Indictment. The Indictment must be presented by the Director of Public Prosecutions to a judge in the appropriate higher court within six months, although the court may grant an extension of that time in some circumstances. If the Indictment is not presented within six months then the defendant may apply to have the charges dismissed.
Very serious charges such as murder are committed for trial in the Supreme Court.
Committal proceedings are preliminary hearings conducted in the Magistrates Court to determine whether a defendant has a case to answer on a particular charge. That is determined by a magistrate considering the written police statements of the witnesses, subject to any cross examination of those witnesses. These proceedings are a crucial failsafe procedure intended to stop defendants being sent to trial where there is no proper basis to the charge.
What is an Arraignment?
An arraignment is a formal process in which a criminal charge is read out in court in the presence of the defendant to inform the defendant of precisely what charge they are facing, and to call upon the defendant to plead to that charge. If the defendant pleads not guilty to the charge at the arraignment they can still change their plea later. However, once a plea of guilty is entered on arraignment it is much more difficult to reverse such a plea. There are some circumstances where a Court may permit a guilty plea to be withdrawn and substituted, but those circumstances are quite rare.
In Queensland, in most circumstances there is a presumption in favour of bail, which can be granted either by the police or by a court. In a limited category of offences, for example where the defendant is charged with murder, or an indictable offence allegedly committed while defendant was on bail for another offence, or where they have allegedly used a firearm in committing the offence, the presumption in favour of bail is displaced, so the defendant must show cause why their detention in custody is not justified. However, it is relatively rare for bail to be refused altogether, and it usually happens only in the most serious cases.
With a murder charge, a police officer or Magistrate cannot grant bail, and the defendant can only bring an application for bail before a Supreme Court judge.
Getting bail will ultimately depend on a number of factors, including the seriousness of the charge, the strength of the prosecution case, and the personal circumstances and criminal history of the defendant.
If bail is refused then the defendant is held in custody until the charges are dealt with by the court, or until the defendant can get bail. A defendant who has been refused bail can still apply again for bail, but they may need to show a change in material circumstances to justify the grant of bail.
Appealing a Sentence or Conviction
One may appeal any sentence or conviction. However, when appealing a sentence imposed rather than the conviction itself, a defendant needs to first seek leave from the court to appeal. In any case strict time limits apply, so it is important to act promptly. Sentences of imprisonment are routinely appealed, often with some degree of success.
What is the ‘One Punch’ law?
What is an indictment?
What is an arraignment?
What are committal proceedings?
How long will it take for my charges to come to trial?
If I am sent to jail, can I appeal?
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