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This article was written by Cara Maynard - Associate – Sydney

Before joining the team at Armstrong Legal, Cara worked as a DNA expert preparing and giving DNA evidence in criminal trials. In this role she liaised with police, DPP and defence practitioner regarding a variety of matters including DNA transfer, deposition and recovery. Cara has reviewed and interpreted thousands of DNA profiles that were reported as intelligence to the NSW...

Criminal Trials (NSW)


In New South Wales, when an individual pleads not guilty to a matter that is to be finalised in the District or Supreme Courts, the matter will proceed by way of a trial. This article outlines the processes involved in criminal trials in NSW.

The role of the prosecutor in criminal trials

The Office of the Department of Public Prosecutions (ODPP) handles all prosecutions for criminal offences in the District Court and above. The role of the prosecutor, who represents the Crown in criminal trials, is to prove beyond a reasonable doubt that the accused committed the offence. The prosecution has the burden of proving every essential fact/element that makes up the offence/s charged.

The defendant or accused has no obligation whatsoever to prove any fact or issue that is in dispute. There is also no obligation for the defendant to call any evidence or prove anything.

Judge and jury in criminal trials

Criminal trials are run either before a judge and jury, or before a judge alone. Most trials in NSW for state offences are before a jury. In order to proceed by judge alone, an application must be made by either the prosecution or defence.

In circumstances where an application is made for a judge alone trial, the legislation stipulates the following:

  1. The order will be made if both the prosecution and defence agree;
  2. Where the defence does not agree to a prosecution application for trial by judge alone, the court must not make an order;
  3. Where the prosecution does not agree to a defence application for judge alone, the court may make an order if it is considered to be in the interests of justice;
  4. If the trial will involve factual issues that require the application of objective community standard (for example reasonableness or negligence), the court may refuse to make an order for trial by judge alone;
  5. The court must not make a judge alone order unless it is satisfied that the accused has sought and obtained legal advice in relation to the effect of judge alone order; and
  6. The court may make an order if it is of the opinion that—
    1. There is a substantial risk of interference with any jury or jurors; and
    2. The risk of such offences occurring is unable to be reasonably mitigated by other means.

However, if you have been charged with a federal offence then your case must be heard before a jury. For example, criminal trials for offences contrary to the Criminal Code Act 1995 (Cth), must be decided by a jury.

Where a trial is to proceed before a jury, 12 jurors will be selected. In some cases, a judge may decide that additional jurors should be selected to ensure there will be sufficient jurors remaining when the jury is required to consider its verdict. The judge may order up to three additional jurors be selected.

Opening address in criminal trials

Opening addresses are made at the beginning of criminal trials after the jury has been empanelled. The judge will ask the prosecution to present its opening address and inform the jury that the address is to help them understand the evidence that is to follow.

An opening address by the prosecution will typically outline the charges and the evidence the prosecutor intends to present in the trial. The defence can similarly make an address.

The purpose of opening addresses is to provide the jury with an understanding of the evidence that will be given throughout the trial.

Prosecution case

Witnesses called by the prosecution will give evidence in criminal trials about what they saw, heard or otherwise perceived. The prosecutor may also introduce other evidence such as photographs, documents, CCTV footage and medical reports through witnesses.

Following a witnesses’ evidence for the prosecution, they can be cross-examined by the defence. Cross-examination is one way for defence to test the reliability, truthfulness or credibility of a witness, and also put the defence case, as relevant, to the witness. The defence can also introduce other evidence such as photographs, documents, CCTV footage and medical reports through witnesses.

The prosecution then has the opportunity to re-examine its witness, if there are any matters that require clarification.

Defence case

As stated above, the defence is under no obligation to call any evidence or prove anything, and occasionally no defence case will be run.

However, in circumstances where the defence does present a case to the jury, any witnesses called will follow the same process as for the prosecution case.

Closing submissions in criminal trials

Following the conclusion of the defence case, or the completion of the prosecution case, each side will have the opportunity to make closing submissions which are a summary by each party of its case, and how the evidence that has been heard should be applied to each party’s case.

Summing up and deliberation in criminal trials

Following closing submissions, the judge will ‘sum-up’ the case for the jury. A summing-up should include a summary of the evidence adduced during the trial and the arguments made by each side. Most importantly, the judge must also give direction on the law as applicable to the case.

After the summing up, the jury will be asked to retire and consider its verdict. If the jury is able to reach a verdict, the court will reconvene and the foreperson will deliver a verdict of guilty or not guilty in relation to each charge.

If the jury is unable to reach a unanimous decision, a hung jury may be declared. However, in certain circumstances, the court will allow a ‘majority verdict’. However, the circumstances where this is permitted will be limited.

Trials for Commonwealth offences must always be determined by a unanimous verdict.

Verdicts in criminal trials

Where the trier of fact makes a finding of not guilty, the individual is acquitted of the offence. If a guilty verdict is reached either by the jury or judge alone, the matter will listed for sentence.

If you require legal advice or representation in relation to criminal trials in New South Wales or in any legal matter, please contact Armstrong Legal.

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