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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Defended Hearings (NSW)


In New South Wales, when an adult is charged with a summary offence, the matter is finalised in the Local Court. If the accused pleads guilty, they are then sentenced by a magistrate. If they plead not guilty, the matter is adjourned for a defended hearing. A defended hearing is a trial in front of a magistrate who hears evidence and submissions from prosecution and defence and then decides whether the offence has been proven beyond a reasonable doubt.

When a person is charged with indictable offences, they must go through a different process. Indictable offences are finalised in the Supreme Court or District Court in New South Wales.

The rules governing defended hearings are set out in the Criminal Procedure Act 1986 and in the Evidence Act 1995.

Pleading not guilty

When a person wants to contest charges in the Local Court, they must formally enter a not guilty plea. A person may plead not guilty because they have a legal defence to the charge available to them (for example, they committed an assault but were acting in self-defence) or when they are relying on a factual defence (such as an alibi). A person may also decide to plead guilty simply to ‘put the prosecution to proof’. It is then up to the prosecution to establish beyond a reasonable doubt that they committed the offence.

Bail or remand

When a matter is set down for a defended hearing, the accused will generally either be granted bail until the hearing date or held on remand. When an accused is granted bail, they must attend court on the date they are bailed to and they may also have to abide by other conditions. Failure to appear at court will generally result in the court issuing a warrant for their arrest.

If the matter is very minor, the accused may not be put on bail but instead summonsed to appear at court on the hearing date.

Brief of evidence

The prosecution must provide the defence with a brief of evidence. This is all the evidence the prosecution is seeking to rely on to prove the charge/s. This may include witness statements, CCTV footage, police interviews and expert evidence such as DNA analysis. The defendant should review the brief of evidence closely when preparing their defence.

After reviewing the brief of evidence, the defence may want to raise issues around the admissibility of particular items of evidence. For example, if the accused was interviewed without being informed of their right to silence it may be possible to have it excluded from evidence.

If the defence is seeking to have some evidence excluded, it may be able to achieve this by negotiating with the prosecution. If this is unsuccessful, it will be necessary to hold a voir dire before the hearing.

Preliminary conferences

If the accused has legal representation, the court may order that the parties hold a preliminary conference to see if they can agree about the evidence to be admitted in the hearing.

The defended hearing

At defended hearings, both parties may call evidence. The prosecution generally calls police witnesses first, followed by the complainant and then any other witnesses.

Both parties will have the opportunity to subject the other party’s witnesses to cross-examination. A party may cross-examine a witness in any way they see fit, so long as the questioning does not contravene the Evidence Act.

It is up to the accused to decide whether he or she will give evidence.

After each party has closed its case, the court will hear submissions from the prosecution and defence, which generally includes a summary of the evidence and some legal argument.

The magistrate will then deliver their decision. This may occur on the spot or the court may adjourn until a later date for the magistrate to consider the decision and prepare written reasons. 

Defended hearings are usually conducted in open court, which means that members of the public, including the media, may be present.

Appeals

If either party thinks that a Local Court decision is unfair or that the magistrate has made an error of law, they can appeal against the decision to the District Court. An appeal can be against the Local Court’s verdict, the sentence imposed, or both. If a party wishes to lodge an appeal, it must file the appeal within 28 days of the decision.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal. 

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