Section 10 Order
Pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may impose a s10 bond whereby all charges against the Defendant are dismissed. A section 10 Bond is often given conditionally on a Defendant entering into a Good Behaviour Bond.

Bond
A court may rule that a Defendant enter into a good behaviour bond. Such a bond cannot exceed the period of five (5) years and the conditions of the Bond must provide a degree of certainty, and must not be unreasonable. In cases where Defendant’s enter into a Bond they often also receive a fine.

Fine
The Court may require you to pay a sum of money. Fines are generally calculated with reference to ‘penalty units’ with one unit being equal to $110.00. When making an order for the payment of a fine, the court may take the financial circumstances of a defendant into account.

Deferred Sentence
In circumstances where the court has found a defendant guilty of an offence, it is within the courts discretion to defer passing sentence in respect of the matter. This often occurs in order to enable the defendant time to be assessed for, or enter into rehabilitation. A court can defer passing sentence for a period of up to twelve (12) months from the conviction date.

Community Service Orders
A court may at its discretion order that a defendant perform suitable work within the community for a period of up to 500 hours. The court will only adopt this course in circumstances where the defendant has been found by the Community Offender Service to be a suitable person for the purposes of this order.

The date, time & location of your first court date is set out in your Court Attendance Notice (CAN). If you are unsure of the particulars of your court date, you can contact the relevant registry, or visit the court website.

At the first court date also known as ‘a mention’ you are required to advise the court as to whether you intend to plead guilty or not guilty. In certain circumstances, where you are unable to attend court on the specified day, you may be able to have your matter adjourned to a later date. You can seek an adjournment by contacting the relevant Court’s Registry.

If you choose to enter a guilty plea, it may be possible for your matter to be dealt with on the same day. Should you advise that court that you intend to plead not guilty, the court officer will adjourn the matter which gives the parties time to discuss and negotiate the contentious points of the case before the matter proceeds.

If you have retained the services of a lawyer, they will attend the mention with you. A lawyer can also advise you in respect of the particulars of your offence, and help you make the decision of whether to plead guilty or not guilty to an offence.

For serious criminal matters heard in the District Court, the Criminal Case Conferencing Trial Act 2009 sets out that an accused party that enters a guilty plea before being committed for trial may receive a 25% discount on their sentence, while a party that pleads guilty after the matter has been committed for trial may receive up to a 12.5% discount on their sentence.

Clearly, the timing of the plea greatly affects the discount that may be available. A court officer may also take into account the number and severity of charges, as well as the defendant’s fitness to plead when determining whether or not to impose a lesser sentence.

It is important to note that, generally, entering a plea of guilty does not automatically entitle a party to a discounted sentence.
Further, you should not enter a guilty plea unless you have had the time to assess your matter properly. It is important to review the police ‘statement of facts’ in order to satisfy yourself that there are no inaccuracies and or errors of fact. It is advisable for any defendant to obtain proper legal advice before entering a guilty plea.

A legal practitioner can advise you of the particulars of an offence, and help you understand whether you are guilty of the charge that has been made against you. A lawyer may also advise you of any defence that is available to the charge.

The changes set out above outline above are perhaps troubling. Even in circumstances where the Weissensteiner Direction has been described as a failure by the Defendant to explain, rather than a failure to give evidence, one cannot help but wonder whether directions of this nature can be reconciled with the presumption of innocence principle.

It is clear however, that an innocent party may suffer calamitously from any limitation placed on a person’s right to silence.

The stand out issue with the subsequently named ‘Weissensteiner Direction’ is that is significantly undermines the presumption of innocence within our Legal System.

The presumption of innocence dictates that a person is believed to be innocent such a time that the Prosecution is able to prove his guilt to the requisite standard of proof, which is beyond reasonable doubt.

Undoubtedly because of this, the High Court imposed several limitations on the Weissensteiner principle. Specifically, a negative inference cannot be drawn from a defendant’s decision to stay silent. A jury can only draw an inference of guilt which is made available by the Prosecutions facts, facts that are given some additional credibility by the defendant’s unwillingness to provide evidence to the contrary.

Further, the High Court found that a jury must be made aware of the fact that a Weissensteiner Direction made by a judge can be ignored.
It is perhaps unsurprising that the High Court found that the Weissensteiner Direction can only be made in rare cases. It is therefore still the position at Common Law that a defendant’s silence alone is not enough in most circumstances to establish guilt.

Mr Bayeral & Ms Jack had departed Australia with Mr Weissensteiner on a private boat. The couple where never seen again. Mr Weissensteiner was not initially a suspect, and his subsequent arrest was made on circumstantial grounds.

As a result of Legislative amendments, and the High Court’s findings in Weissensteiner v R a Defendant’s right to silence has become even less absolute.