Trial Process

There are many offences which are unable to be finalised in the Local Court, and need to be referred to the District or Supreme Court for determination.

If your case is committed to a higher court and you continue to plead not guilty, it will proceed to a trial before a jury or a judge-alone – unless your lawyer is able to persuade the DPP to withdraw the charges.

The following is a basic guide to the main steps in a District or Supreme Court trial.

Arrest charge and committal

Arrest

You can be arrested by a police officer who ‘reasonably’ suspects that you have committed (or are about to commit) a summary or indictable offence. Arrest occurs when:

It is an offence to physically resist police, after arrest. You also need to attend court if you are served with a ‘court attendance notice’.

Charge

Police will prepare a formal charge at the police station and read it out to you if they decide to formally charge you with an offence. Anything you say at this time can be recorded and used as evidence in court, but you do not have to comment.

You have the right to apply for bail once you have been charged.

Committal

If you have been charged with an indictable offence, a Local Court date may be set down for a Magistrate to decide whether there is enough evidence for your case to go to the District or Supreme Court. This process is called a ‘committal hearing’.

You do not need to enter a plea at the committal hearing. However, if you plead ‘not guilty’ and the Magistrate decides there is sufficient evidence for a jury to convict you, your case will be sent to trial – that is, ‘committed to stand trial’. If you plead ‘guilty’, your matter will go to sentencing in the District or Supreme Court, which is called ‘committed for sentencing’.

The Director of Public Prosecutions will prepare a document that lists each charge being brought against you if you are ‘committed to stand trial’. This document is called an ‘indictment’.

There can be several charges on the indictment and each charge is called a ‘count’. The indictment is then sent to the District or Supreme Court, which will have the matter listed for trial.

Bill of indictment

A Bill of indictment is a formal document that the prosecution files with a court to commence a ‘trial on indictment’. This document presents a short description of the charges faced by an accused. All offences, except summary offences, are able to be tried ‘on indictment’.

Not all indictable offences are dealt with on indictment. Some are dealt with summarily. This is normally a choice afforded to both the prosecution and defence, as to whether an indictable offence is tried summarily or on indictment.

In most Australian jurisdictions, indictments are generally only filed after ‘committal proceedings‘. These proceedings are a form of preliminary hearing, where a magistrate decides whether or not there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

The accused is discharged if the magistrate is not of that opinion. However, if the magistrate is of that opinion, he or she commits the accused to trial. The prosecution then files an indictment, and the pre-trial and trial procedures commence. Trials on indictment occur in the NSW District or Supreme Courts.

Case management provisions

The key objective of case management is to reduce delay and costs so that there are:

The overarching purpose of case management is to facilitate the just resolution of disputes according to law as inexpensively, quickly and efficiently as possible.

A Judge can order for a mediation to be held in a matter as part of the case management of the matter. In most situations, all the parties agree to this.

A mediation is normally conducted by one of the Federal Court Judicial Registrars and involves all parties meeting in a conference room to discuss ways of settling the case. It results in a speedy resolution of a dispute at minimum cost to the parties.

Trial by jury

There are plenty of offences which are unable to be finalised in the Local Court, and must be referred to a higher court for determination. These are strictly indictable cases.

Many other offences call for either the defence or Office of the Director of Public Prosecutions (or ‘DPP’) to decide whether they will be referred to a higher court. These are Table 1 indictable offences.

Some other offences where only the DPP can decide whether to commit to a higher court. These are called Table 2 indictable offences.

If your case is committed to a higher court and you continue to plead not guilty, it will proceed to a judge-alone trial or trial before a jury; unless your lawyer is able to persuade the DPP to withdraw the charges.

Judge alone trial

Applying for a trial by judge alone can be made in circumstances where the complexity or length of the trial would be unreasonably burdensome.

Applications for a trial by judge alone are also made in circumstances where there is an overwhelming amount of attention and media coverage prior to the trial. This is because there are concerns as to whether a jury can remain impartial and unbiased when determining whether the accused is guilty or not guilty.

Arraignment of accused

The first step in the trial process is called ‘arraignment’.

This is where the Judge’s Associate reads aloud to the accused each count on the indictment. After reading each count, the Judge’s Associate asks the accused: ‘how do you plead, guilty or not guilty’.

The Accused then responds with either ‘guilty’ or ‘not guilty’.

During the ‘arraignment’, there is a large number of people in the public area of the Courtroom. This is the group of people from which the jury panel will be chosen.

If you are to be arraigned, you need to stand when your name is called and remain standing until you have entered pleas to all the charges.

Jury empanelment

The next stage is to select a jury. This is done in the following manner:

Judges opening to the crown and defence opening

The Judge then invites the Prosecutor to give an overall outline of what is being alleged against the Accused.

No witnesses are called at this stage and no documents are handed up to the Judge as evidence.

The Judge will then ask the criminal defence lawyer if they would like to outline the defence case.

The criminal defence lawyer will usually only give a very general opening or no opening at all, so that it does not pin the defence down to a specific version of events.

Presentation of prosecution cases

Next, the Prosecution witnesses are called to the witness stand one at a time.

They can include police officers, civilian witnesses, customs officers, expert witnesses etc.

(i) Examination in chief

Each Prosecution witness will be questioned by the Prosecutor after being ‘sworn in’.

There are rules of evidence that criminal defence lawyers need to follow when asking questions.

One is that when questioning your own witness, you cannot ask ‘leading questions’, which are questions that suggest or contain a particular answer.

(ii) Cross-examination

After the Prosecutor has finished questioning a witness, the criminal defence lawyer has the opportunity to ask questions to that witness.

At this stage, leading questions are allowed.

A criminal defence lawyer can reveal any inconsistencies or untruths in the witness’s evidence in the cross examination stage. At this stage, the defence lawyer can also suggest what the Accused’s defence will be (‘put its case’).

If the criminal defence lawyer wants to rely on those facts as a defence to the charges, it must ‘put its case’ at some stage during the trial. 

(iii) Re-examination

If new facts are raised during ‘cross examination’, the opposing party can ask questions about those facts only.

New facts are those that did not arise during the ‘examination in chief’ of the specific witness.

Closing of prosecution case

The Prosecution will declare its case against the Accused as concluded after the questioning has finished.

Defence case

Then, the lawyer will decide which, if any, of their witnesses will be called to the witness stand.

The Accused (optional)

It is not required that the Accused gives evidence as a witness.

The lawyer needs to decide whether to call the Accused to the witness stand.

In making that decision, a number of things will be considered including:

If the Accused chooses to give evidence, they will face the same procedure as other witnesses: examination in chief, cross examination and re-examination.

Other witnesses (optional)

The remaining Defence witnesses are then called to the witness stand one at a time, and questioned following the same procedure: examination in chief, cross-examination, then re-examination.

Closing addresses

Once the Defence witnesses have finished, the Prosecution will give their ‘closing statement’ to the jury.

That ‘statement’ can involve the Prosecutor outlining the ‘elements of the offence’. The Prosecution needs to prove each and every one of the ‘elements’ beyond reasonable doubt.

The Prosecutor will then try to convince the jury that the evidence in the trial proves the guilt of the Accused ‘beyond reasonable doubt’.

Once the Prosecutor has finished, the criminal defence lawyer is invited to give its ‘closing statement’. The lawyer’s role is to convince the jury that the Accused may not have committed the crime. This is done by:

Trial judges summing up

Next, is the judge’s ‘summing up’ stage where the judge summarises the issues, arguments and evidence in the case.

In ‘summing up’, the judge may say what he or she thinks the case comes down to, summarise the lawyers’ main arguments, and outline the central points of each significant witness’s evidence.

Retirement and deliberation

Once the Judge has finished, the jury is asked to retire to consider its ‘verdict’. This means they are left to decide whether the Accused is ‘guilty’ or ‘not guilty.

In jury trials, the jury is the judge of the facts and the Judge is the judge of the law.

Therefore, although it must accept the Judge’s ‘directions’ about the law, the jury is essentially responsible for determining the ‘verdict’, and will do this based on what it judges are the facts.

The law allows ‘majority verdicts’ whereby all except one juror can agree on a verdict.

Return of verdict

The Court will reconvene once a verdict is reached.

The jury foreperson will then stand, after which the Judge’s Associate will read the charges one at a time, asking the foreperson every time: ‘how do you find the Accused, ‘guilty’ or ‘not guilty’’.

The foreperson then gives the verdict, after which the Judge’s Associate will say: ‘so says your foreperson, so say you all’.

Once all of the verdicts are given, the Judge will thank and discharge the jury.

Local Court hearing

Most criminal law cases first enter the New South Wales Court System through the Local Court.

The following is a basic guide to what occurs in a Local Court hearing.

First, the Accused needs to find out where their matter will be heard and check which Courtroom it will be heard in.

All the matters for the day will be listed on sheets in the Court foyer. The list will state the Courtroom and the number for the matter which the accused would need to make note of.

The Accused would also need to get advice from a lawyer. If they haven’t seen a lawyer, they need to look for the ‘legal aid duty lawyer’ who will be in a designated room within the Courthouse.

The Accused would then need to wait until their case is called. Once the matter is called, each person must walk to the front of the Court and bow to the magistrate as they enter and leave the Courtroom. The Accused must sit behind their lawyer, just in front of the public area. If the Accused does not have a lawyer, the Court Officer will direct them to a position in the Court.

The Accused will be asked a series of questions by the Magistrate, including:

The Magistrate needs to be addressed as ‘Your Honour’ by each person in the Courtroom, at all times.

Once the Accused is ready to proceed, the Magistrate will read out the charges against them, and ask them to plead ‘guilty’ or ‘not guilty.’

District Court hearing

The District Court is the state’s intermediate court. It sits above the Magistrates Court and below the Supreme Court. It deals with serious criminal matters, civil matters and appeals from lower courts.

Private solicitors can not prosecute trials in the NSW District Court. The NSW Office of the Director of Public Prosecutions is the government agency and prosecuting service responsible for prosecuting serious criminal offences in the New South Wales District Court.

In any NSW District Court proceeding, a person has the right to be assisted by an individual known generally as a “McKenzie friend”. A McKenzie friend is someone who supports the accused throughout the proceeding but is not a legal representative and can not speak in court on the accused’s behalf. The McKenzie friend can assist by taking notes and offering advice.

Most District Court proceedings are heard in open court, which means that the public is free to sit in court and watch the proceedings at any stage in the process. However, there are statutory provisions restricting the publication of evidence in some cases.

Supreme Court hearing

The Supreme Court is the superior court and hears the most serious cases. Trials like these are heard by a judge and may be decided by a jury.

This Court has both appellate and trial jurisdictions. The appellate courts are the Court of Appeal and the Court of Criminal Appeal. The trial work of the criminal and civil jurisdictions is divided between the Common Law Division and the Equity Division.

Court of Appeal

The Court of Appeal hears applications for leave to appeal and appeals from single judges of the Supreme Court and from other NSW courts and tribunals. It has both appellate and supervisory jurisdiction in respect of all other courts.

The Court of Appeal generally consists of three judges of appeal. If the Judges do not agree, the majority view prevails.

Occasionally, a five-judge bench will convene if there is a conflict between two earlier decisions of the Court, or where a party seeks to challenge a legal principle set in a previous decision of the Court of Appeal.

Appeals against decisions of the Court of Appeal are made to the High Court of Australia in matters of general or public importance. However, before the appeal can progress, the applicant needs to obtain the High Court’s leave to proceed.

Court of Criminal Appeal

The Court of Criminal Appeal is NSW’s highest court for criminal matters. Someone who has been convicted or who pleaded guilty and been sentenced by a Supreme Court or District Court judge, can appeal to the Court of Criminal Appeal.

Appeals are normally heard by three judges, although five judges may sit when significant legal issues need to be considered. If the judges do not agree, the majority view prevails.

There are several grounds for appeal, including a challenge to a conviction involving a question of law. This court can also grant leave to appeal in matters involving questions of fact or mixed questions of fact and law. It may also grant leave to appeal in cases where the severity or adequacy of the sentence is challenged.

An applicant must first obtain special permission from the High Court to appeal to the High Court from the Court of Criminal Appeal.

Sentencing

A judge or magistrate needs to consider many factors in deciding on the appropriate sentence for an offence. There is no single correct sentence for a particular crime because the circumstances of each offence and each offender influences the duration, severity and nature of the sentence that is appropriate.

Proportionality Of Sentence

The court needs to order a sentence that is fair considering the intensity of the offence and the circumstances of the offender. This is the principle of proportionality.

Method To Decide Sentence

The court follows the following steps for sentencing:

  1. The “objective seriousness” of the offence is first determined. In doing so, the judge takes into account the facts of the offence, the maximum penalty that can be ordered for such offence, and any aggravating factors.
  2. Next, the judge takes into account the personal circumstances of the offender where relevant. These are subjective factors and include things like the age of the offender, if they have a prior criminal record and what step they have taken to take responsibility for their actions and avoid reoffending.

The judge will also attempt to treat cases which are similar in a similar way. Courts can look at previous decisions to identify whether there is a pattern for sentencing that offence.

Aggravating And Mitigating Factors

An aggravating factor can increase the sentence a person receives, and mitigating factors reduce it. However, the importance of each factor and whether it influences the sentence will vary according to the nature of the crime and circumstances around it. 

Aggravating and mitigating factors are set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).