The Law Handbook 2024

Chapter 2.3: Representing yourself in court 85 9 You have the right to consider appealing the magistrate’s sentence if you don’t agree with it or you think it is too harsh. Seek legal advice about this; there are strict time limits for lodging an appeal. If you are at risk of imprisonment, the magistrate will ask whether you have had legal advice, and advise you of your right to do so, before sentencing you. If the magistrate is not convinced that you have had adequate legal advice, they might pause or adjourn the case to give you a chance to do this. Pleading ‘not guilty’ to a criminal charge If the case does not ‘resolve’ – which means you disagree with the police’s version of what happened and could not reach an agreement during the summary case conference – the court will likely adjourn your case to a ‘contest mention’. A contest mention is a brief hearing where parties must say which issues are disputed, which prosecution witnesses need to attend a hearing to be cross-examined, and any other things that need to be done to prepare the evidence for a ‘contested hearing’. At a contested hearing, a magistrate hears all the evidence and decides whether the charges have been proven beyond reasonable doubt. Once your case is booked into a contest mention, you should request a full brief under section 39 of the CP Act at the earliest opportunity. The full brief includes the evidence (e.g. documents, images and recordings) that the police prosecutor will rely on to prove the charge against you in court. A full brief is more detailed than a preliminary brief. Having this detailed brief is essential if you are going to contest the charge as you need to plan how you will challenge the evidence, which witnesses you will cross-examine, what questions you will ask the witnesses, and whether you need to call your own witnesses. You can request a full brief from the informant via email. Make sure you save all your correspondence with the informant, in case any issues arise in relation to slow or incomplete disclosure of evidence. It is strongly advised that you seek further legal advice at this point – on the merit and likely outcome of your case, as well as on strategy and court procedures. In a criminal matter, there are many opportunities to try again to negotiate with the other party. You can also change your plea at different points in the process, although there are limitations and potential adverse implications involved in this. If you contest a matter and are found guilty, the penalty imposed on you could be more severe than if you had pleaded ‘guilty’ at an earlier point in the process. This is because the law says that if you plead guilty from the start, you must get a less severe penalty than you would if you contested the case and were found guilty. Representing yourself in a civil case While you may want to represent yourself in a civil case before a court or tribunal – or you may not have another option – there are important issues to consider. Legal costs of the other party In civil cases heard in courts and some tribunals, the losing party is likely to be ordered to pay the legal costs of the successful party. In some situations (especially in the Magistrates’ Court), these legal costs can be much more than the amount involved in the dispute. Therefore, before deciding to pursue a case in court, you should try to get objective legal advice on the strength or ‘merit’ of your case – that is, how likely you are to be successful in getting an outcome that benefits you. Pay close attention to any legal advice that you receive as you may be refused free legal assistance because the lawyer advising you believes your case has no merit (i.e. you are likely to lose the case). VCAT: Costs VCAT generally does not award costs except in the specific circumstances outlined in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (s 109). The circumstances where costs will be awarded by VCAT tend to involve a party causing delays unreasonably or conducting the case in an unfair or inappropriate way. AAT: Costs The Social Services and Child Support Division of the Administrative Appeals Tribunal ( AAT ) is a cost-