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WN Legal Podcast Ep 6: Self Represented Litigants in Criminal Matters

Disclaimer: This blog is not meant to be legal advice specifically for your case or your scenario. Podcast is purely a discussion in respect to informing the public of what to do when you are facing certain circumstances.

Discussion in this episode will cover self represented litigants, specially in criminal matters. So what happens when you’ve been charged by the police? Have you already been investigated? You need to understand the process before proceeding on your own, without a lawyer.

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How do you know you’ve been investigated?

The time between the alleged offending and police investigation can vary from the night after, to (sometimes) 40 years later. However, typically it’s within the first two weeks to the first month that you’ll get a call from the police. Depending on the severity of the case, the time frame may be shorter or longer.

Let’s explore the process.

If it’s a simple assault usually they’ll leave a card by your doorstep. But if it’s drugs of a marketable quantity you’ll usually be arrested on your premise under Section 24 of The Misuse of Drugs Act.

“They would usually have a video on and they would be going through your stuff. They will be asking you, “Is this yours? Is this yours? And is this yours?” Whenever they ask you all these questions any admissions you make will be used against you because that video will be used on court. And the Magistrate, or the Judge, or the panel of juries will be looking at them. So, if you’re in those set of circumstances you’re in a bit of a pickle because if you say “No comment” they can draw … Well, according to the law they can’t draw negative inferences, but at the end of the day the video is there to capture where the item is.”

Then comes your first court appearance. Before you do so, you should seek legal advice. The court is there to determine whether or not you’re guilty or not guilty. What happens in that court changes everything. Before you more forward you need to understand the facts of your case.

You may not have access to police gathered evidence, DNA, and statements. That’s the disadvantage. When you go to court the Criminal Procedure Act dictates that there are ways in which you can then obtain your evidence that’s against you. Or, decide what you want to do. What do you want to plead? Guilty or not guilty?

Misconceptions

The issue with self represented litigants is that they don’t understand the facts. Self defence and provocation is the misguided case that commonly comes up.

A lot of the times when my clients, or prospective clients come to my office, they go, “Hey, Khew I punched someone but the guy provoked me. He pushed me first.” Well, I would sit them down and the whole first initial consultation with them is to discuss what “chapter two” [Chapter 2 of the Criminal Code] defences are. I would discuss with them the defence of self-defense and provocation, and how do they affect the case because it’s not as simple as he’s pushed me, he said something bad to me. For example, provocation according to the Act, you need to have lost your passion to cool because of an act of insult, or assault. So, someone has to push you non-stop and really push your buttons to the point where the Court can be persuaded that indeed you were provoked. You lost your passion to cool. When I say passion to cool for provocation, for instance, it’s not, “Oh, you’ve been in the room for five minutes then you go out there and you punch someone. It has to be almost instantaneous.”

Sometimes the factual matrix of your case is just not tenable to be prosecuted. The facts weren’t tenable.

How to proceed

It’s best that you speak to a lawyer before you enter a court a plea guilty or not guilty. For self represented litigants that’s your immediate ultimatum. It’s up to you what you wish to do with those charges. Magistrates will afford you multiple opportunities to seek legal advice.

There are options apart from pleading guilty, or not guilty, to a set of charges. A lawyer can advise you through this process.

We can decide and provide you with advice on a preliminary basis what you wish to do. If your matter is summary, which is not a ‘crime’. Google the charge and find the relevant act. It may be the Criminal Code, or it may be another set of legislation. Google the specific section. If the relevant section says that you have “committed an offence,” then it’s summary. If it says that you have committed a “crime” then it is indictable.”

  • If it says it’s an offence you can plead not guilty and ask for disclosure.
  • In summary offences you need to plead not guilty to get disclosure materials, such as DNA materials. They should provide you with evidence that they [Police Prosecution]  believe can prove beyond reasonable doubt that you have committed the alleged offending.

Understand your options, and determine your best course of action.

Seek legal advice

Depending on the severity of your case and the certainty of discontinuing the charges, a lawyer is your best option.

However if your only option is to self represent, remember to consider these three things:

  • Look at the facts – remain objective
  • Is the law applicable?
  • What defenses do you have?

Remember going to court isn’t a DIY scenario. There will be an opposing counsel. They’re dealing with facts and the rules of evidence. They will decide whether you’re guilty or not guilty. Do not proceed as a self represented litigant unless it’s a simple charge. Meet with a lawyer discuss your case to be certain you’re getting the best outcome for yourself.

Consult WN Legal

If you’re thinking about representing yourself in a case, we recommend consulting the WN Legal team for advice. See the WN Legal website for more information.

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