The Law Handbook 2024

124 SECTION 3: Fines, infringements and criminal law are unable to find a lawyer to represent you before the rehearing. You can apply for bail pending a rehearing and to ‘stay’ (stop) the imprisonment order until the rehearing is determined. If your rehearing application is successful, the court may cancel the imprisonment order and exercise any of its powers under section 165 of the FR Act. If your rehearing application is not successful, the court must confirm the original order and may issue a warrant and lift any stay on an instalment order. If you fail to attend a rehearing and your matter is struck out, you can make another application for a rehearing under section 167(4) of the FR Act. You are required to obtain leave from the Magistrates’ Court to reapply for a rehearing. If you are sentenced to an imprisonment in lieu order and breach this order, the court can issue an imprisonment warrant without holding a further hearing and you can be imprisoned. If this happens, it is important to urgently get legal advice and consider your options to apply to the court to recall and cancel the imprisonment warrant (under section 58 of the Magistrates’ Court Act) and to vary your imprisonment in lieu order or to ask the court for a rehearing. Appearing in the Magistrates’ Court You (and your lawyer, if you have one) should arrive at the court at least 20 minutes before the hearing time. You or your lawyer need to announce your ‘appearance’ in person with the bench clerk in the court where the matter is listed to be heard. This means approaching the magistrate’s bench clerk before the magistrate enters the court and telling them your name, so the magistrate knows you are present and ready for your matter to be heard. It is important for you to be present at the hearing, even if you have a lawyer. Generally, this is your only opportunity to argue your case before a magistrate. If you do not appear, the court is more likely to rule against you and to impose a harsher sentence, as you are not present to tell the court about your personal and other circumstances. Also, some sentences (e.g. an adjournment on an undertaking of good behaviour) require you to consent to the order, so if you want these more lenient sentencing options to be available to you, you need to attend court. If you have an enforcement warrant hearing and are on bail, it is very important for you to attend court. If you were arrested by the sheriff under an enforcement warrant for infringement offences and have been released on bail by signing an ‘undertaking of bail’, you must go to court for your hearing otherwise you can be charged with a breach of bail. When you come to court, you should bring with you supporting material about your personal and other circumstances. When you come to court, it is also helpful if a case worker or social worker is able to attend the hearing and speak to your circumstances (including special circumstances grounds), as this sends a strong message to the court that you are being supported and that you are addressing the underlying causes of the alleged offending. The worker’s presence also enables the court to clarify any questions or gaps that might appear in the worker’s report. When the associate calls your matter, you or your lawyer will proceed to the bar table and, if you have a lawyer, they will announce that they are appearing for you. For open court hearings, the magistrate will generally ask the enforcement agency prosecutor for an outline of the alleged offences and will ask whether you plead guilty or not guilty. If you plead not guilty, the matter will be adjourned to a contest date for further hearing. If you plead guilty, the magistrate will ask for sentencing submissions, which gives you or your lawyer an opportunity to explain your circumstances and suggest a penalty for the magistrate to consider. For enforcement warrant hearings, the magistrate may ask for submissions about s 165 of the FR Act which gives you or your lawyer an opportunity to explain your circumstances and suggest a penalty for the magistrate to consider. Your supporting material is often critical in these matters. The type of material you may rely on includes psychological reports, medical reports, character references, police reports in the case of family violence and budgets showing limited income or supporting letters showing caring responsibilities. The court may adjourn the matter for you to obtain supporting material. You can also request an adjournment to obtain supporting material if you think you will be able to get it. Alternatively,