How To Have Charges Dropped Before A Defended Hearing or Jury Trial

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How To Have Charges Dropped Before A Defended Hearing or Jury Trial

Going to court for criminal charges is an intimidating prospect, so it’s not surprising that many people who are accused of criminal offences seek to have charges brought against them withdrawn before the case reaches a defended hearing in the Local Court or a jury or judge-alone trial in the District or Supreme Court.

Here are a number of ways by which criminal proceedings can be discontinued before the charges are adjudicated by a magistrate, judge or jury – or not initiated at all.

Police cautions and warnings

For some individuals suspected of committing a crime, there may be an option to have the matter resolved very early on in the form of a formal police caution or warning.

Young people may be eligible to receive a formal caution for most summary offences, also known as a ‘youth caution‘. Generally, the conditions for a youth caution require that the young person admit the offence and meet certain key suitability requirements.

Individuals found in possession of small quantity of cannabis may also be eligible for the NSW Cannabis Cautioning Scheme.

The Cannabis Cautioning Scheme allows adult offenders in NSW detected for minor cannabis offences to receive a formal caution rather than be charged with an offence.  NSW Police can issue a formal caution if they encounter a person:

  • Using cannabis; 
  • In possession of less than 15 grams of cannabis; or 
  • In possession of cannabis related equipment (such as a bong or pipe).

The person will need to admit to the offence to receive a caution. A person can only be cautioned twice and cannot be cautioned at all if they have prior convictions for drug offences, offences of violence or sexual assault.

A formal caution will include contact telephone numbers for the Alcohol and Drug Information Service. If a person receives a second caution, they are required to contact this service..

There are moves to expand this scheme to all illicit drug categories in NSW.

Diversionary programs

There are a number of diversion programs operating in New South Wales, some of which  avoid the need to attend court entirely, and others are directed by courts during the early stages of the proceedings.

Under the Young Offenders Act 1997 (NSW), people under the age of 18 years who have committed minor offences may be eligible to be diverted to a youth justice conference.

This conference is a formal discussion between youth justice officials, the young person and anyone impacted by their offending, and can be done as an alternative to a court hearing.

If a drug-related matter has proceeded to court, a person may be eligible to participate in the Magistrates Early Referral Into Treatment program (MERIT).

The MERIT program allows eligible persons with drug-related problems to enter into treatment and rehabilitation programs before their next court hearing.

Recommendation into the program can come from police, lawyers or a Magistrate.

Once a person has been recommended for the program, a Magistrate will assess their suitability and make a decision whether to formally endorse participation in the program. 

A person is eligible for the MERIT program if they:

  • Consent to the program;
  • Are an adult;
  • Have an alcohol or other drug related problem;
  • Have been released on bail or do not require bail;
  • Are not charged with an offence that will be dealt with by the District Court or a sexual offence; and
  • Live or have a connection with an area which offers the MERIT program.

Formal legal representations

Outside of formal caution, warning and diversion schemes – a criminal matter may also be dropped prior to a court date if police and/or prosecutors are convinced that charges should be withdrawn.

This is usually done through the use of formal legal representations being made to police and/or prosecutors. A representation is just a formal letter outlining why charges should be dropped.

Generally, representations will be made regarding:

  • Key deficiencies in the prosecution’s case;
  • The availability of exculpatory evidence;
  • Any mistakes or violations of law by police and/or prosecutors related to the proceeding;
  • The existence of formal legal defences or excuses regarding the charges.

Although you do not necessarily need a criminal lawyer to make representations, an experienced criminal lawyer will often be able to detect problems in the police case straight-away and draft the strongest possible document.

Anticipating court over a criminal matter?

If you would like advice on the prospects of entering a diversionary program or having charges withdrawn during the early stages of criminal proceedings, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.

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Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

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