Arraignment refers to the court hearing where a defendant is formally charged with a criminal law offence and is asked to enter a plea of guilty or not guilty. It is one of the first formal steps in the higher court criminal trial process and marks a critical transition from pre-trial preparations to the actual trial or sentencing.
What the Criminal Procedure Act 1986 Says About Arraignment
Section 152 of the Criminal Procedure Act 1986 (NSW) deals with arraignment on a charge of a previous conviction in NSW. Under Section 152, if a person is charged with an offence and has been previously convicted of an offence, the prosecutor may give notice of their intention to rely on that previous conviction to increase the penalty for the new offence.
This notice is referred to as a “recidivist declaration”. The notice must be given in writing to the defendant or their legal representative. At the arraignment, the judge or the judge’s associate will read the charges against the defendant and inform them that they are being charged as a repeat offender. The defendant will then be asked to enter a plea of guilty or not guilty.
When Does an Arraignment Take Place?
Arraignment only occurs for indictable matters and does not occur in the Local Court. It takes place once a matter has been committed from a Local Court to either the District Court or the Supreme Court in each jurisdiction.
It is worth noting that arraignments are often part of a “short matters” list, meaning multiple cases may be scheduled on the same day. This can lead to waiting times, so defendants should be prepared to spend some time at the courthouse. You will be advised of your arraignment date and which courthouse you need to attend well ahead of time, so it is advisable to understand the charges you are facing and decide on your plea before attending.
What Happens During an Arraignment?
The arraignment is a formal step that follows investigation and initial charges in the criminal justice process. It is typically a brief process — the accused does not present any evidence or argue their defence. Generally, there are no witnesses called to give evidence at an arraignment, as it is not a trial.
The following events typically occur during an arraignment:
- Charges are read aloud: The charges are read by the Judge or the Judge’s Associate. Each charge is read aloud to the accused, who is asked to enter a formal plea to each one.
- A formal plea is entered: Entering a plea is something the accused must do personally during the arraignment. If the accused refuses to enter a plea or “stands mute,” the court has the power to enter a plea of not guilty on their behalf, which carries the same legal effect as if the accused had entered the plea themselves.
- Bail is addressed: The judge may address bail conditions if the defendant is not in custody, or review existing bail conditions during the arraignment.
- Rights are explained: The defendant has the right to be informed of the nature and cause of the charges in a language they understand. The judge will also advise the defendant of their right to legal representation, their right to remain silent, and their right to a fair trial.
- Next steps are confirmed: If the defendant enters a plea of not guilty, the judge will schedule a trial date and discuss other matters such as pre-trial hearings or evidence admissibility.
A judge cannot provide legal advice as to whether you should plead guilty or not guilty. It is therefore essential to consult a criminal lawyer before your arraignment date.
Arraignment Pleas: Guilty or Not Guilty
The plea stage is arguably the most consequential moment of the arraignment. During arraignment, the accused is required to enter a plea of guilty or not guilty to each charge read.
If the accused pleads not guilty: A trial date will normally be set. The case proceeds to trial, where the prosecution bears the burden of proving guilt beyond a reasonable doubt. The presumption of innocence means that the accused is presumed innocent until proven guilty according to law.
If the accused pleads guilty: The matter will be either adjourned for sentence following any remaining trial matters, or otherwise listed for a sentence. There will be no trial on those charges, and the judge will consider factors such as the severity of the offence, the accused’s criminal history, and any mitigating circumstances.
It is also possible for the accused to plead not guilty to a charge in the indictment but plead guilty to an alternative offence not in the indictment. If the court does not accept the plea to the alternative count, the accused will need to face a jury to answer for the primary charge.
Where Does an Arraignment Take Place?
In Australia, arraignments take place in the District Court or Supreme Court in each jurisdiction. The specific court depends on the nature of the offence. Arraignment does not occur in the Local Court — it applies only to indictable offences that have been committed to a higher court.
The defendant will typically be required to attend court in person, although in some cases they may be able to attend via Audio Visual Link (AVL). This may apply if they are in custody or are unable to attend court in person for a valid reason.
Consider Bailey Smith, who is charged with stealing a car. Her matter is committed to the District Court, and she attends for her arraignment. The judge’s associate reads out the charge against her. Bailey is asked how she pleads and responds, “not guilty.” The judge schedules a trial date, addresses bail conditions, and explains the upcoming process. Bailey is released on bail and required to attend court on the trial date, where the prosecution will present evidence and Bailey will have the opportunity to defend herself. The specific procedures may vary depending on the jurisdiction and the nature of the offence.
Categories of Criminal Offences
Defendants should understand which category of criminal offence applies to their situation, particularly when deciding whether to plead guilty during an arraignment. Here are the four categories of criminal offences in Australia.
1. Summary Offences
Summary offences are minor criminal offences generally heard in a local or magistrates’ court. Examples include:
- Traffic offences, such as speeding or running a red light
- Public order offences, such as disorderly conduct or offensive language
- Minor property offences, such as shoplifting or vandalism
- Minor drug offences, such as possession of a small quantity of drugs
2. Table 2 Offences
Table 2 offences refer to certain indictable offences listed in Schedule 2 of the Criminal Procedure Act. They include:
- Burglary
- Stealing
- Possession or supply of prohibited drugs
- Dangerous driving
3. Table 1 Offences
Table 1 offences are among the most serious indictable offences, listed in Schedule 1 of the Criminal Procedure Act. They include:
- Murder
- Manslaughter
- Sexual assault
- Armed robbery
4. Strictly Indictable Offences
Strictly indictable offences must be heard in a higher court, such as the District or Supreme Court, and carry the most severe penalties. Examples include:
- Murder and other serious violent offences
- Drug trafficking and other serious drug offences
- Serious sexual offences, such as rape and sexual assault
- Fraud and other serious white-collar crimes
Self-Representation at Arraignment
It is possible for an accused person to opt for self-representation at arraignment, but it is not advisable. If you are self-represented, the judge is obliged to explain the trial process to you before the jury is empanelled. However, it is important to note that the accused has no right to be assisted by a person known as a “McKenzie friend” during arraignment proceedings.
A McKenzie friend is a person — typically a non-lawyer — who accompanies a self-represented litigant to assist them informally. The absence of this right makes self-representation at arraignment particularly risky. A legal practitioner will explain the various protocols and regulations of the court to ease the process and protect the accused’s interests at every stage. Legal representation is highly advisable when facing criminal charges, even if you intend to plead guilty.
Why You Need a Criminal Lawyer at Arraignment Procedures
Arraignment procedures should be taken seriously. The decisions made at arraignment — particularly around plea — will shape the entire trajectory of the case. The arraignment serves as a critical bridge between pre-trial preparations and the actual trial or sentencing, and a misstep at this stage can have lasting consequences.
Our team at JB Solicitors is experienced in defending clients who wish to plead not guilty in court. We can also help defendants who want to pursue a lighter penalty when pleading guilty to a criminal offence. Contact an experienced criminal lawyer today.
Frequently Asked Questions About Arraignment in Australia
What does arraignment mean in Australia?
Arraignment is the process when a person accused of an offence is read the charges against them and asked to formally enter a plea of either guilty or not guilty to each matter charged. It takes place in the District Court or the Supreme Court for indictable offences.
Does arraignment happen in the Local Court?
No. Arraignment only occurs for indictable matters in the District or Supreme Court. It does not take place in the Local Court.
What happens if I plead not guilty at arraignment?
If you plead not guilty at arraignment, a trial date will normally be set. The prosecution must then prove your guilt beyond a reasonable doubt at trial, and the presumption of innocence applies throughout.
What happens if I plead guilty at arraignment?
If you plead guilty to any of the charges at arraignment, the matter will be either adjourned for sentencing at a later date or listed for a sentence. There will be no trial on those charges.
Do I have to personally enter my plea at arraignment?
Yes. Entering a plea is something the accused must do personally during the arraignment. A lawyer cannot enter the plea on your behalf.
What if I refuse to enter a plea at arraignment?
If the accused refuses to enter a plea or “stands mute,” the court has the power to enter a plea of not guilty on their behalf. This has the same legal effect as if the accused had entered the plea themselves.
Can I get legal advice from the judge at arraignment?
No. A judge cannot provide legal advice as to whether you should plead guilty or not guilty. It is essential to consult a criminal lawyer before your arraignment date.
What is a McKenzie friend, and can I bring one to an arraignment?
A McKenzie friend is a person who accompanies a self-represented litigant to assist them informally in court. The accused has no right to be assisted by a McKenzie friend during arraignment proceedings, which is one of the key reasons legal representation is strongly recommended.
