Pleading Not Guilty in Tasmania
In Tasmania, when a person is charged with criminal offences, the matter is either dealt with in the summary jurisdiction (Magistrates Court or Children’s Court) or on indictment (in the Supreme Court). When a person pleads not guilty to offences in the Magistrates Court or Children’s Court, the matter will go through a number of procedural steps before being finalised by way of a contested hearing. At the contested hearing, the prosecution will try to prove the person guilty beyond a reasonable doubt. This article outlines the court processes and issues to consider when pleading not guilty in the summary jurisdiction in Tasmania.
Brief of evidence
If an accused person indicates that they intend to plead not guilty in Tasmania, the prosecution will have to serve a copy of the brief of evidence on the defence. The brief of evidence is a summary of all the evidence that the prosecution is planning to rely on at the hearing. This may include witness statements, DNA evidence, CCTV footage, expert evidence, child forensic interviews (CFIs) and an electronic record of the interview (EROI) if the accused took part in an interview with the police. It may also include medical evidence, particularly where there are physical injuries alleged to be the result of violence.
The accused should review the brief of evidence carefully with their lawyer. If it appears that the prosecution case is strong, it may be advisable to change their plea to guilty at this point. The court gives a sentencing discount to defendants who plead guilty to acknowledge that they have admitted the offending and saved the court the time and expense of running a contested hearing. If a person is likely to be found guilty, it is advisable to plead guilty to take advantage of this discount.
If it appears that the prosecution case is weak or that there is a legal defence that has a good prospect of succeeding, the defence should continue to the next procedural stage.
Once the brief of evidence has been served on the defence, the parties must attend a contest mention.
At the contest mention, the prosecution must indicate whether there is any evidence still to be disclosed to the defence, how long the hearing is likely to take and any orders it is likely to seek. The defence must indicate how the accused will plead, the issues that are in dispute, whether the accused intends to rely on an alibi, how long it estimates the hearing will take and any order it is likely to seek.
The court may make orders that one or both parties must disclose information to the other. It may then set a date for the contested hearing, or, if there are further issues to be resolved, set a date for a further contest mention.
The day of the hearing
On the day of the hearing, the accused must enter their plea. The prosecution will then call evidence and the defence will have the opportunity to cross-examine each of the prosecution’s witnesses. The prosecution will then make submissions and close its case.
The defence will then have the opportunity to call witnesses. The accused may give evidence if he or she chooses to do so. The prosecution will have the opportunity to cross-examine each of the defence witnesses. The defence will then make submissions and close its case.
The magistrate will then deliver a judgment. This may occur immediately, or the matter may be adjourned to a later date for the decision to be handed down. If the accused is found guilty, the magistrate will decide on the appropriate sentence. A range of sentencing orders are available depending on the nature of the offending, including fines, good behaviour bonds and terms of imprisonment.
When should a person plead not guilty?
There are a number of situations where it is advisable for a person to plead not guilty to charges.
Firstly, a person should plead not guilty if they did not commit the offence.
Secondly, a person should plead not guilty if they committed the physical acts alleged, but have a valid legal defence – for example, they hit someone in self-defence.
Thirdly, a person should generally plead not guilty if it is likely the prosecution cannot prove all the elements of the offence or cannot prove that the accused was the person who committed it. This may be because there were no eyewitnesses or because there are inconsistencies between different witness accounts. It may also be because some of the evidence was obtained improperly and can be excluded.
Voir dires and pleading not guilty in Tasmania
If a person is pleading not guilty to offences and there is an item of evidence in the prosecution case that may have been improperly obtained, they should consider challenging the admissibility of this evidence in a voir dire. A voir dire is a pre-trial proceeding held to determine whether an item of evidence should be admitted during a trial or contested hearing.
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