The first thirty days after being charged.

A criminal charge starts a clock the accused person is not aware is running. Bail conditions have to be lived with. Police investigations continue. The brief is being prepared on the other side. A lawyer has to be chosen and engaged. Legal Aid applications, if relevant, have to be lodged early enough to be assessed by the first listing. The first court date arrives quickly. This note sets out what actually has to happen in the first thirty days after a charge so that the matter is in the best possible position at the first listing in the Local Court.

Day 1 to day 3. Bail and the immediate environment.

The first three days are about the bail position and the immediate physical environment around the accused. If the accused has been released on conditional bail, the conditions need to be read carefully and lived with strictly. The conditions typically include reporting to a nominated police station on specified days, a curfew at a nominated residence, non-contact with the complainant and any other named persons, exclusion from named places, and surrender of passport for serious offences. A breach of a single condition in the first week can produce a section 50 detention application by the prosecutor and a return to custody pending the matter. The separate note on bail conditions is the working guide to the conditions themselves.

If the accused is in custody on a refused bail or on a show-cause matter, the first three days are about a release application. The Local Court will hear a release application at any listing; if the accused is in custody after the charge, the lawyer's first job is to prepare a release application supported by accommodation, employment, surety and any other material that addresses the unacceptable-risk test.

The third element of the first three days is the police interview position. If the police have asked the accused to come in for an interview, the answer in almost every case is no. The separate note on the right to silence sets out the section 89 and section 89A framework. The same note explains the doorstep playbook for officers turning up at the residence.

Day 4 to day 10. Choosing a lawyer.

The next week is about lawyer selection. The decisions in the matter from this point onward are made on legal advice; the wrong lawyer at the start of the matter is a problem that compounds across the proceedings.

The orthodox path is to speak with two or three criminal defence lawyers in the relevant area of practice. Ask about their experience with the specific kind of matter. Ask about their fees and their fee structure (flat-fee, brief-of-evidence-based, hourly). Ask whether they will be the lawyer doing the work or whether the work will be handed to a junior. Ask about their availability for the next twelve months. Ask about senior counsel for any matter that is going to be on indictment. Make the decision on the strength of the lawyer's actual answers, not on the lawyer's confidence about the outcome.

The accompanying note on lawyer guarantees explains why a lawyer who offers an outcome assurance at the first conference is the wrong lawyer. The right lawyer offers a range, names the dependencies, and explains the work that has to be done.

Day 4 to day 10 (parallel). Legal Aid, if relevant.

For an accused person who meets the means test, Legal Aid representation is available. The application is lodged at any Legal Aid NSW office or online through the LA NSW portal. The grant of aid is conditional on the matter satisfying the merits test (a likely good arguable defence, or a substantive sentencing issue) and the means test (income and assets below the prescribed thresholds). The decision on the grant takes around ten business days; an early application means the grant is in place by the first listing.

For matters that are likely to be defended or that are on indictment, Legal Aid will usually fund senior counsel representation. The senior counsel allocation is made by Legal Aid in consultation with the assigned solicitor; the accused does not pick the senior counsel directly through the LA grant.

Day 11 to day 20. The brief and the first conference.

Once a lawyer is engaged, the next milestone is the brief of evidence. For a Local Court matter where a plea of not guilty has been indicated or anticipated, the brief is served by the prosecution in accordance with the timetable in the Local Court Criminal Practice Note 1 (Crim 1). The brief includes the witness statements, the photographic material, the closed-circuit footage, the police facts, the body-worn-video, any expert reports, the criminal history, and any other material the prosecution intends to rely on.

The lawyer reads the brief and forms a view of the case. The first conference between lawyer and client after the brief lands is the most consequential conversation in the matter. The brief, the elements of the offence, the defences (legal and factual), the realistic range of outcomes, the timing decisions (plea or hearing, plea timing for the discount), the subjective case, and the prospect of negotiation with the prosecution are all worked through in the conference.

Where the matter is to be committed to the District Court on a Table 1 election or as a strictly indictable matter, the brief follows the committal timetable. The same logic applies: the brief is read, the conference is held, the position is set.

Day 11 to day 20 (parallel). The subjective case begins.

The subjective case is the part of the sentencing brief that addresses the offender's personal circumstances, character, background, and the steps taken since the charge. It includes character references, employment material, medical and psychological reports, evidence of treatment or counselling, family material, and any restitution or apology where the matter warrants it.

The subjective case is built over the months between the charge and the sentence, not in the week before. The work that starts in the first thirty days is the foundation: identifying the right referees and briefing them; engaging a psychologist or psychiatrist where the matter justifies one; starting any rehabilitation or counselling that is relevant; collecting employment and family material. The earlier the subjective case begins, the stronger it is at sentence.

Day 21 to day 30. The first listing.

The first listing in the Local Court for a summary matter, and the first mention for an indictable matter, falls somewhere between day 21 and day 49 depending on the bail position and the local list. The separate note on the Local Court mention sets out what happens at the listing itself.

The decisions that have to be made at the first listing are timing decisions, not final decisions. For a plea of not guilty, the court will set a brief-service timetable and adjourn the matter for the brief to be served. For a plea of guilty, the court can sentence on the day in straightforward matters; for matters that warrant a subjective case, the matter is adjourned to allow the case to be built. For an indictable matter, the magistrate will set a committal timetable, which the matter then follows through the brief-service, charge-certification, case-conference and committal stages.

The first listing is also the moment at which bail can be varied if it needs to be. The lawyer raises any variation (residential address, employment exception to curfew, supervised contact with children, return of a passport for employment travel) at the first listing where the variation is supported on the evidence. Section 51 of the Bail Act 2013 (NSW) is the variation provision.

What good preparation in the first thirty days produces.

The matter at the end of the first thirty days, in the orthodox case, looks like this. Bail conditions are stable. The lawyer is engaged and briefed. Legal Aid is in place if relevant. The brief has been requested or received. The first conference has happened. The realistic range of outcomes is on the table. The subjective case is in motion. The timing decisions for the next three months have been made. The accused is sleeping at night because the matter has been organised, even though it has not been resolved.

The matter at the end of the first thirty days where preparation has not happened looks like this. Bail conditions have been breached or are at risk of being breached. The accused has been to an ERISP without legal representation. A lawyer has been engaged late and is still reading in. Legal Aid is not yet in place. The brief has been served but not properly considered. Decisions have been made on instinct rather than on advice. The matter is harder than it needs to be at every subsequent stage.

One last note.

The first thirty days is not the substance of the defence. The substance is in the next six to twelve months. But the first thirty days sets the conditions under which that work is done. Bail stable; lawyer engaged; brief in motion; subjective case begun; timing decisions made. That is what the first thirty days is for.

This note is general information about the criminal process in NSW and is not legal advice for any particular case. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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