Representations
In a criminal case, being charged by police does not mean the matter must proceed all the way to a Defended Hearing or Jury Trial. In many cases, a lawyer can submit Representations to the police or prosecution early in the matter — asking for all or some of the charges to be withdrawn, for a more serious charge to be downgraded to a lesser offence, or for the police case summary (Police Facts) provided to the court to be amended.
The point of Representations is not to ‘plead for leniency’, but to identify the problems in the prosecution case — grounded in the law, the evidence and prosecution policy — and to explain why there is not enough basis to keep prosecuting, or why the matter should be dealt with in a lighter and more accurate way. For the client, successful Representations can mean the matter does not need to go to a formal hearing, and may even avoid a criminal record, reduce legal costs and shorten the life of the case.
For matters suited to Representations, the sooner the evidence review is completed and discussions are held with the prosecution, the better the chance of resolving the matter before it reaches a formal hearing. Many lawyers are unfamiliar with this process and may wait months until the hearing date to apply for an adjournment before making representations to the prosecution. Even if the same outcome is reached in the end, the client may by then have carried a longer period of litigation stress, court appearances, and the ongoing impact of the case on their work and life.
What Are Representations?
Representations are usually a formal legal document written by a defence lawyer to the police prosecutor, the prosecuting authority or another prosecuting body. Their purpose is to ask the prosecution to look again at the charges and case material already laid.
Representations can commonly seek the following outcomes:
- the withdrawal of all charges;
- the withdrawal of some of the charges;
- downgrading a more serious charge to a lesser offence;
- consolidating multiple duplicated or overlapping charges;
- amending the police case summary (Police Facts) to remove exaggerated, inferential or unsupported statements;
- reaching a more reasonable resolution before the matter proceeds to a formal hearing.
For example, a charge of Assault Occasioning Actual Bodily Harm may in some cases be downgraded to Common Assault; a charge of Drug Supply, where the evidence is insufficient, may be downgraded to Drug Possession. Changes like these directly affect the seriousness of the matter, the defence strategies available, and the ultimate sentencing risk.
Why the Charges Laid at the Start Are Not Always the Final Charges
In many criminal cases, police tend to lay more serious or more numerous charges when a prosecution first begins. The charges laid at the outset have not necessarily undergone a thorough analysis of the evidence, nor do they always accurately reflect the criminal conduct that can ultimately be proved.
Before pressing ahead with a matter, the prosecution must still consider a basic question: whether the available evidence is sufficient to support each charge and to meet the criminal standard of proof, Beyond Reasonable Doubt. If the evidence cannot establish a particular element of the offence, or if the evidence itself contains clear contradictions, procedural defects or admissibility problems, the prosecution has good reason to reconsider whether to continue the prosecution.
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When Are Representations Usually Made?
Representations can be made at an early stage of a matter; they do not have to wait months, or until just before a formal Defended Hearing. As soon as a lawyer has enough material to judge that there are arguable issues in the prosecution case, making early Representations to the prosecution can be considered.
In less serious matters, Representations can sometimes be made around the first, or first few, court appearances. In more complex matters, a lawyer usually needs to obtain further evidence first before deciding whether it is appropriate to lodge more complete Representations.
Situations where Representations are commonly worth considering include:
- the police charges are too heavy, and the actual facts are closer to a lesser offence;
- a single course of conduct has been split into several duplicated or overlapping charges;
- the police case summary contains exaggerated, subjective or unsupported descriptions;
- key witness statements contain contradictions or credibility problems;
- there may be problems with the search, arrest, stop or evidence-gathering procedures;
- the prosecution would struggle to prove a particular element of the offence;
- the facts are minor or technical, or the offending was not intentional;
- the client clearly intends to plead guilty, but first needs some charges withdrawn or the case summary amended.
What an Effective Set of Representations Usually Contains
An effective set of Representations is usually not simply a matter of writing ‘I would like the charges withdrawn’; it needs a clear structure and specific grounds.
First, the lawyer sets out the current charges and the outcome sought.
For example, whether the request is to withdraw all charges, to withdraw certain of them, or to downgrade the existing charges to a lesser offence.
Second, the lawyer briefly summarises the facts alleged by police.
This step does not accept the police version; it defines the basis of the current dispute so each point can be analysed in turn.
Third, the lawyer analyses the problems in the prosecution evidence.
This usually covers which elements of the offence the prosecution must prove, whether the current evidence is sufficient to prove those elements, whether there are contradictions between pieces of evidence, whether the procedures were lawful, and whether any legal defences are available.
Fourth, the lawyer builds the argument by reference to prosecution policy and police guidelines.
Criminal prosecution is not a mechanical process of pushing every matter to a hearing. The prosecution generally has to consider whether there is sufficient, reliable and admissible evidence, whether there are Reasonable Prospects of Conviction, and whether continuing the prosecution is in the public interest.
Fifth, the lawyer clearly restates the request at the end.
Representations must ultimately come down to a concrete outcome — for example, asking for charges to be withdrawn, reduced or consolidated, or for the police facts to be amended.
Why Amending the Police Facts Matters
In guilty-plea matters, the court usually refers to the police case summary (Police Facts) when sentencing. If that summary contains exaggerated, one-sided or unsupported statements, the client may be placed at a clear disadvantage at sentencing, even where they have admitted the offence.
Through Representations, a lawyer can ask for the Police Facts to be amended — for example, to remove subjective, evaluative wording such as ‘deliberate’, ‘extremely dangerous’ or ‘complete disregard for public safety’, or to add important context that has been left out, such as that the client cooperated with police, caused no harm, that the conduct was brief, that they stopped of their own accord, or that they expressed remorse afterwards.
Such amendments are not about ‘inventing facts’; they seek to make the final version of the facts put before the court more accurate, more fair and consistent with the evidence. When it comes to seeking a lighter penalty, avoiding a conviction record or reducing collateral consequences, amending the Police Facts can sometimes be decisive.
What Can Happen After Successful Representations
If the prosecution accepts the Representations, several outcomes are possible.
The best-case scenario is that all charges are withdrawn and the matter does not proceed. For the client, this usually means there is no need to go to a Defended Hearing and no need to keep carrying the risk of a later hearing.
Another common outcome is that some charges are withdrawn, leaving fewer or less serious charges and greatly easing the defence burden that follows. This can happen in traffic, assault, drug, fraud and AVO breach matters, among others.
A further outcome is that the charges remain but the Police Facts are amended. This matters a great deal for a later guilty plea and sentence, because the version of events the court finally sees is closer to the objective evidence rather than the police’s initial, harsher account.
Where the evidence is very strong, or the matter involves serious violence, grievous bodily harm, serious drug offences, sexual offences or high-risk domestic violence factors, the prosecution may not readily withdraw the charges. But even where not all charges can be withdrawn, Representations may still help the client narrow the issues, reduce the number of charges, correct adverse facts, or lay a better foundation for a later guilty plea and sentence.
How NS Legal Assists with Representations
NS Legal can help clients review the police material, assess whether the matter is suited to Representations, and put targeted written submissions to the police or prosecution based on the evidence, the elements of the offence and prosecution policy.
Our work typically includes:
- reviewing the Court Attendance Notice, Police Facts and Brief of Evidence;
- assessing whether the police can prove the elements of each charge;
- analysing whether there are procedural issues, evidentiary issues or available defences;
- evaluating whether there is scope to withdraw, downgrade or consolidate charges;
- seeking the removal or amendment of Police Facts that are inaccurate, unfair or unsupported by evidence;
- communicating with the police or prosecution to resolve the matter before a formal hearing.
If you have already received a Court Attendance Notice, or believe the police charges are too heavy or the case summary is inaccurate, we recommend contacting the NS Legal team as early as possible. The sooner the material is reviewed, the better the chance of a more favourable outcome before the matter reaches a formal hearing.
If you are preparing to plead guilty but are concerned that the Police Facts are overstated or inaccurate, you can also contact the NS Legal team to review the case summary first, and then decide whether to ask the prosecution for amendments.
Already received a Court Attendance Notice, or think the charges are too heavy?
Frequently Asked Questions
Are Representations only needed if you are pleading not guilty?
No. Representations can be used both in not-guilty matters and in matters where the client intends to plead guilty. Where the client is pleading not guilty, Representations can seek to have charges withdrawn or reduced. Where the client is preparing to plead guilty, Representations can also seek to have surplus charges withdrawn, to amend the Police Facts, or to adjust the basis of the matter to a more accurate and favourable version.
I have already been charged by police — can I still ask for the charges to be withdrawn?
Yes. Being charged does not mean the prosecution cannot withdraw the charges. As long as the matter is still on foot, the prosecution can reassess it against the evidence, the public interest and prosecution policy. The key is whether specific, clear and legally grounded reasons can be put forward.
How far can the Police Facts be changed?
The Police Facts cannot be changed into something false, but you can ask to remove inferences, exaggeration or evaluative language that is not supported by evidence, and to add important context that has been left out but is supported by evidence. The aim is to make the version of the facts the court sees more accurate and fair.
If the Representations are unsuccessful, will they affect the later hearing?
Generally, Representations are part of the overall case strategy. Whether they affect a later hearing depends on how they are drafted. Good Representations should avoid unnecessarily admitting adverse facts and should not close off room for a later defence. For this reason, serious criminal matters should usually be drafted only after a lawyer has reviewed the evidence.
When is the best time to make Representations?
Usually after the lawyer has enough evidence to identify the weaknesses in the prosecution case. Lodging too early may mean there is not enough material; lodging too late may miss the chance to resolve the matter early. The right timing depends on the type of matter, whether the evidence has been disclosed, the hearing date, and the arrangements for communicating with the prosecution.
Can I write the Representations myself?
In less serious matters, a client can attempt to make a written request to the police or prosecution themselves. But where the matter involves more serious charges, may leave a criminal record, or may affect a visa, professional registration, a work permit or future travel, it is advisable to have a criminal lawyer review the matter first. A lawyer is usually better placed to assess what the prosecution must prove, where the evidence is weak, and how to frame the request most persuasively.
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