If you're an accused person

If the State brings a criminal action against you, you are called the accused (in the Supreme Court) or the defendant (in the Magistrates Court).

A criminal action (as opposed to a civil action):

  • is brought by the State against an individual
  • seeks punishment (by imprisonment or some other penalty) for a person's misconduct.

Go to the website of the Legal Aid Commission for more information.

What happens when I'm charged?

Once the police charge you with an offence, criminal action against you begins.

Offences

Offences are generally either:

  • simple or ‘summary’ offences, or
  • crimes or ‘indictable’ offences.

Indictable offences are more serious than summary offences. They’re generally dealt with in the Supreme Court.

If you need help understanding your charge, please talk to your lawyer or someone from Legal Aid.

Complaints

The police will record your offence on a ‘complaint’. This document contains:

  • your name and address
  • the offence you are charged with
  • a brief summary of the details of the alleged offence.

First court appearance

Once you are charged with an offence and if the police do not grant bail, the police bring you before a Magistrate as soon as possible. At this first appearance, you have a right to:

  • have your matter adjourned (postponed) to another date, to decide whether you’ll plead guilty or not guilty and to seek legal advice if you wish to
  • plead to the charge at that first appearance.

At this point, the Magistrate can either remand you in custody (that is, place you in gaol) or on bail.

How does bail work?

The Magistrate or an authorised police officer can grant you bail.

Bail allows you to stay out of custody until you return to court on the charges you are accused of.

Bail orders:

  • will detail the date you must appear in court
  • may include conditions that you must comply with. If you don’t, further charges may be brought against you.

If you’re refused bail and remanded in custody by a magistrate, you may apply to the Supreme Court to grant you bail. If this is refused, you must remain in custody until your next court appearance.

Please refer to the Bail Act 1994.

Who or what is surety (for bail)?

A surety is a person who agrees to pay money if a defendant:

  • fails to comply with the conditions of bail. It may be all or only some of the conditions; check the bail document carefully
  • fails to appear in court as required.

If you act as a surety for someone, you’re willing to be responsible for making sure they comply with their order for bail. Otherwise, you can be required to:

  • pay the court immediately (some or all of the money), or
  • provide an undertaking to pay if ordered.

As the surety, you are required to be in court each time the defendant is bailed to appear.

In detail

If the defendant fails to comply with their bail conditions or appear in court, the police or prosecutor will apply for ‘forfeiture’ of the money specified in the bail document.

A copy of this application will be served on you.

The Magistrate may order you to pay some or all of the money.

How the amount to pay is decided

Whether or not you are ordered to pay all or just some of the money depends on factors such as:

  • proof by the police or prosecutor that the defendant has breached bail
  • the extent (if any) that you are at fault for the defendant breaching bail
  • how soon the breach was reported to the police, and how helpful you’ve been in locating the defendant
  • if the defendant is still at large (if they have fled)
  • your ability to pay
  • if you were present at the court hearing, even if the defendant wasn’t.

Arresting the defendant

If you reasonably believe that the defendant has (or is about to) breach their bail, you may arrest the defendant and bring them before the court as soon as practicable.

If you can’t bring the defendant to court yourself, ask the police for help. You’ll need to show them your surety papers.

Once the defendant is arrested and taken to court, the Magistrate may:

  • restore the order for bail, or
  • revoke the bail and order the offender be remanded in custody, or
  • revoke the bail and make a fresh order for bail.

If the bail order was originally made in the Supreme Court, the Magistrate may remand the defendant in custody, to appear before a Supreme Court judge within 7 days.

Being released from being a surety

If you no longer wish to be a surety for someone, you must apply to the court. The defendant must be present at the hearing of your request.

Getting your money refunded

Unless the Magistrate has ordered otherwise, once the defendant’s matters have been finalised (the sentence imposed or the charges dismissed), any money you’ve paid as surety can be refunded. The money will be paid by cheque or directly deposited to your back account.

Apply to the Court by providing the detail listed in the Surety Refund document (docx, 13.3 KB).

What happens with summary offences

If you have pleaded guilty to a summary offence, the Magistrate may either:

  • sentence you immediately, or
  • adjourn (postpone) the matter to another date for sentence

If you’ve pleaded not guilty to a summary offence, the Magistrate will adjourn the matter to another date for hearing. In some circumstances the Magistrate may adjourn the matter to another date for a ‘contest mention’.

Contest mentions

contest mention hearing
a hearing in which parties can try to reach agreement on some matters before a full criminal hearing is held

At a contest mention, the Magistrate considers more evidence so:

  • there’s a better understanding of your case
  • you can get an idea about what sort of sentence is likely if you’re found guilty.

Do I have to use a lawyer?

You can speak for yourself in court without a solicitor, lawyer or other legal professional.

Read our information on representing yourself in court.

If you want a lawyer but can’t afford one, you can apply to the Legal Aid Commission for legal representation.

You can’t ask someone who is not a lawyer to represent you: you must either do it yourself or get the services of a lawyer.

Can I get free legal advice?

On court sitting days, Legal Aid solicitors are usually present and can help if you don’t have a lawyer. Ask the court's security guards to point you to them.

You can find more information on the Legal Aid Commission of Tasmania website.

What is the hearing process?

What the prosecutor will do

The prosecutor will start, and:

  • will call witnesses to testify against you. You may cross-examine them
  • may produce physical or written evidence to support their case against you.

Once all the prosecutor’s witnesses and evidence are finished with, their case is closed.

What you may do

After the prosecutor is finished, you may:

  • give evidence, and/or
  • call your own witnesses.

Both you and your witnesses may be cross-examined by the prosecutor.

Once all your witnesses and evidence are finished with, your case is then closed.

As an accused person, you’re presumed to be innocent until proven guilty. Therefore you don’t have to give or call additional evidence in order to prove your innocence. It’s up to the prosecutor to prove that you’ve committed the offences alleged. If they don’t do this to the Magistrate’s satisfaction, then you’ll be discharged.

The verdict

If the verdict is guilty, the Magistrate may sentence you then and there, or may adjourn your matter to a later date for sentencing.

If you are convicted of a serious offence in the Magistrates Court, the court must impose a compensation levy under the Victims of Crime Compensation Act 1994.

If the verdict is not guilty you are free to go.

Can I appeal a decision?

You may appeal decisions in the Magistrate’s Court to the Supreme Court.

You may appeal the decisions of a single Judge of the Supreme Court to the Court of Criminal Appeal.

You may appeal the decisions of the Court of Criminal Appeal to the High Court of Australia.

No appeals are possible from the High Court.