Hearings and trials

This section describes the basic processes of:

  • hearings;
  • committals; and
  • trials.

It also looks at some tactics that may be useful in each. If you are preparing for a hearing or trial, make sure you also read Preparation, and Evidence.

Hearings

A hearing is the determination of a charge before a magistrate. A committal hearing is a preliminary hearing, before a magistrate, to see whether a more serious charge should go to a higher court (for example, the District or Supreme Courts). When a contested matter does go to a higher court for a trial, it is usually heard before a judge and jury. In some cases you can now opt for a judge-alone trial (no jury). A judge-alone trial might be worth considering in a case that carries a great deal of prejudice.

The basic process for hearings, committals and trials is similar. This process is explained in this section. The following sections on committals and trials also explain how these processes differ, and give some advice on tactics.

A person facing a charge in the Local or Children's Courts is called a 'defendant'; while a person facing a charge in a higher court is called an 'accused'. One of the benefits of representing yourself is that you are more likely to be called 'Ms/Mr [name]' – a more human label.

A hearing before a magistrate is sometimes called a summary hearing, because it is decided straight away, or 'summarily'.

In a summary hearing you might not receive any advance warning of witnesses or evidence to be called. However, you are entitled, well before the hearing, to a statement of alleged 'facts' on which the prosecution is basing its case. This statement should let you know what you must answer. From this information you can consider which parts of the prosecution case you should investigate, as well as whether you wish to call any witnesses. If the prosecution case in court departs radically from the statement of 'facts' that you have been given, you are entitled to ask for an adjournment, to further investigate these new 'facts'.

In any case, ask for a copy of the prosecution's 'brief' (that is, the statements of the prosecution witnesses) as early as possible, even if it is not complete. There's always the chance that you may get some more information that will help your case preparation.

If you have been charged with another person or persons, the prosecution may apply for the matter to be heard together in a joint hearing. If you wish to object to this, you must argue that having the charges heard jointly would unfairly prejudice the chances of a fair hearing for one of the defendants.

It is, however, difficult to get an adjournment once a hearing date has been set. At one of the mention dates before the hearing a magistrate will ask for an estimate, from both sides, of how long the matter may take. Then some hours or days are set aside in the court lists. Once this has been done, magistrates are reluctant to 'vacate' or change a set hearing time unless there are very strong reasons.

For contested matters (that is, where there is a plea of not guilty), the basic processes for hearings and trials is much the same. This is outlined below.

The central issue in a criminal hearing or trial is always whether or not the prosecution has proved its case beyond reasonable doubt. No person has to prove her or his innocence. The law presumes a person, before and during trial and after acquittal, to be innocent. This principle is not always respected by police and the media, but it is the law and it is a fundamental common law right. If a person is found not guilty, she or he is free to leave the court.

Committals

For more serious charges, a committal (or preliminary) hearing is held in the Local Court to decide whether or not the prosecution has a case to go to trial in a higher court. This is a place to test the prosecution evidence, but generally not to go all out to discredit it. This would be a wasted effort as most matters do proceed to trial.

When you are facing a serious charge, the prosecutor must give you a list of prosecution witnesses and copies of their statements at some stage prior to the committal proceedings. This is called the prosecution's 'brief' of evidence. After reading these statements, you have to decide which persons you want to question. You must then give the prosecution notice of whom you wish to question or cross-examine, so they can be called as witnesses. If you don't want to question any of them, there will simply be a 'paper committal', where the magistrate decides on the basis of the written statements whether you have a 'case to answer', and so whether the matter should go to trial.

If you are charged with an offence involving violence, there is a prohibition on the cross-examination of any alleged victim in committal proceedings, unless there are 'special reasons'. This may influence your decision over whether to elect for a 'paper committal'. If you have no conflict with the evidence of the police but only with that of the victim, for example, you may consider a paper committal. If you want to contest police evidence, however, you can make use of the opportunity to cross-examine them at the committal. To be able to cross-examine other witnesses you may be asked to provide substantial reasons.

Committal proceedings may be useful opportunities to gain information about the state of prosecution evidence, and to make it difficult for prosecution witnesses to change their stories. If a witness swears to one story at the committal and later tries to change that story at trial, you will be able to draw this inconsistency to the attention of the jury. However, don't expect to 'beat' a charge at the committal stage. The magistrate only has to decide that there is a case to answer, not that it is a good case.

On the odd occasion where the prosecution cannot prove an element of its charge, you will be discharged at the committal stage. For example, in a drug case the prosecution may not be able to show continuous possession, that is, they cannot prove that the drugs subsequently analysed were the same substance found on you. In another example, if you have extremely strong evidence that you were in a different place when the charged crime was committed, you may choose to call this evidence. However, unless you are certain you will beat the charge, only give defence evidence at a committal as a last resort.

There's also usually little point in a dramatic attack on a prosecution witness at a committal. You should make it clear to a witness if you are saying she or he is not telling the truth, but save your 'big guns' for the jury. If you have any surprises, keep them in reserve for the trial. It's usually best, tactically, not to reveal all details of your defence at the committal. Also there's usually not much to be gained by calling defence witnesses – they can wait for the trial.

Use a committal to discover things about the prosecution evidence. Use subpoenas to get access to police records (see Preparation), and plan to question witnesses to draw out information. You can also make objections to evidence you consider to be inadmissible (see Evidence).

Generally, you should expect to be committed for trial. However, there is a point, at the end of the prosecution evidence, where the magistrate has to decide two things. You can make submissions about both of these to her or him:

  • Is the evidence capable of satisfying a jury beyond reasonable doubt? and
  • Would a jury be likely to convict you?

The first question is considered at the end of the prosecution evidence. The second is considered after the defence case: this may include any defence evidence.

The magistrate can commit you for trial for any indictable offence disclosed by the evidence. That is, the original charge could be dismissed but you could be committed for trial on an alternative charge, if the evidence discloses that this is appropriate. It is also open for the magistrate to convict you of a summary offence. If the magistrate decides to go this way, you may have to present defence evidence, or argue for an adjournment. Be prepared! You may be offered the choice of a summary trial towards or at the very end of a committal.

Note also that it is possible to change a not guilty plea to guilty at any stage. For example, after hearing the prosecution case, you may decide (after seeking advice) that it would be better to plead guilty. In this case, the magistrate may deal with the matter summarily, or may commit you for sentence to a higher court. However, remember there is also some time after the committal to change your plea. Don't rush into such an important decision.

In some circumstances, the Attorney General or the Director of Public Prosecutions (DPP) may issue an ex-officio indictment, where you proceed to trial without the benefit of a committal. This may be done, for example, if you abscond on bail and a committal hearing involving a co-accused has gone ahead anyway. The Attorney General or DPP can also issue such an indictment even after a magistrate has found there is 'no case' to answer.

Trials

Trials for the great bulk of serious or 'indictable' offences (such as robberies, serious assaults, most drug charges and serious driving charges) are heard in the District Court ('County', in Victoria). However, the most serious charges (such as murder, sexual assault of very young children and some major drug charges) are heard by the Supreme Court.

Trials in the higher courts are usually heard by a judge and jury, although accused persons in some circumstances (with agreement by both prosecution and defence) can now elect to have the matter heard by a judge alone. Judges are generally more likely to convict than juries. However, in a case where there may be a lot of prejudice, there may be some defence advantage in a single judge trial.

In a jury trial, there are really 13 'judges': one judge of law (that is, the judge, who decides on matters of law or legal principle) and 12 judges of facts (the jury, who look at the evidence). The jury, subject to legal directions, will make the ultimate decision as to whether you are guilty or not guilty.

Appeals from jury decisions are usually restricted to complaints about the procedure that was followed, or the judge's directions in law. An appeal court does not usually review all the facts of a case, once a jury has decided. The positive side to this is that an acquittal by a jury is final. The negative side is that an appeal court rarely reviews all the evidence used by a jury to convict.

Trials differ from hearings in these main respects:

  • A jury is empanelled, and you may have the right to 'challenge' the acceptance of some of these jurors before they are sworn in. This is usually done superficially, on the appearance of the juror. You can challenge three jurors, without reason, but more if the prosecution agrees. The prosecution can also 'challenge' jurors.
  • During a trial, a judge may be asked to rule on points of law (that is, whether evidence is relevant, or should be excluded on any grounds). Evidence may then be called in the absence of the jury (a 'voir dire') so the judge can decide whether or not the jury should hear it.
  • At the end of the prosecution and defence evidence, both sides may address the jury, arguing what they should make of the evidence.
  • At the end of the prosecution and defence cases, the judge sums up the relevant law and the evidence, and then directs the jury to retire to consider their verdict.
  • In federal cases, jury verdicts must be unanimous; however, in many States a majority jury decision is now allowed.
  • If after six hours or more (although there is no fixed time limit) the jury cannot come to a decision, the judge may direct that the jury be discharged and a new trial ordered.

If you are on bail prior to your trial it will usually be extended during the trial, although some conditions may be imposed by the trial judge so that you don't come into contact with the jury. Sometimes, at the end of a serious trial, bail is withdrawn while the jury is considering its verdict.