This article was written by Samira Ashkar - Senior Associate - Sydney

Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...

Criminal Trials (NSW)


Criminal trials in New South Wales are heard in the District Court or Supreme Court when a person pleads not guilty to a serious indictable offence. The processes involved in a criminal trial are outlined below. Prosecution in these higher courts is done by the Department of Public Prosecution (DPP) which is also known as the Crown. The defendant is generally represented by a solicitor as well as a barrister. However, it is also possible for a defendant to self-represent in a trial, though this happens rarely.

Juries

Criminal trials are usually decided by a jury. Provisions concerning juries in New South Wales are found in the Jury Act 1977. In rare situations, a trial may be heard by a judge alone.

When criminal trials in New South Wales are to be decided by a jury, the jury panel is chosen before the trial commences. The jury is composed of 12 members of the public who are selected at random from the electoral roll. Both defence and prosecution have the opportunity to challenge potential jurors who they do not want to form part of the jury.

When the trial begins, the jury is summoned by the sheriff and brought into court when required. The Judge needs to make sure that the jurors hear and understand all the evidence that is called but that no legal argument is presented before them as this could affect their decision making.

Opening Addresses

The opening address of the Crown is a succinct statement of the nature of the charge/s and a brief outline of the Crown case. The prosecutor presents the facts of the case, from the prosecution’s perspective, and walks the jury through what it will try to prove — what the defendant did, how, and why.

Similarly, the defence begins by giving its opening address to the judge and jury whereby it indicate why the Crown case will ultimately fail. The defence gives the jury its own interpretation of the alleged facts and sets the scene for rebutting key prosecution evidence and presenting legal defences.

Prosecution Case

The prosecution will then methodically adduce evidence to convince the jury beyond a reasonable doubt that the defendant committed the crime. This means calling witnesses to give evidence of what they saw, heard or otherwise perceived that is relevant to the prosecution case. The prosecutor may also introduce physical evidence, such as photographs, documents, CCTV footage and medical reports. Each witness will give their evidence in a process known as examination-in-chief. The witness will then be cross-examined by the defence, which will try to expose weakness in their evidence, such as inconsistencies and matters they are not certain about.  The prosecution then has the opportunity to re-examine its witness, if there are any matters that require clarification.

Defendant’s Case

The defence then decides which, if any, witnesses it will call. The accused is not required to give evidence but may do so. In the event defence witnesses are called, the same process of evidence-in-chief, cross-examination and possible re-examination will occur.

Closing Submissions

Following the conclusion of the defence case, the prosecution will address the court and state its case, summing up the evidence that has been heard, arguing that the offence has been proven beyond a reasonable doubt and encouraging the jury to find the accused guilty.

The defence will then deliver its closing address, during which it will sum up the evidence that has been heard from the defence’s point of view and argue that the offences have not been proven beyond a reasonable doubt. It will urge the jury to find the accused not guilty.

Summary Of Case

The judge will then sum up the case and provide directions to the jury, which will involve explaining any relevant legal tests.

Jury Or Judge Deliberation

After the judge has finished 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 a foreperson who has been selected by the jury, will stand and in response to the judge’s questioning deliver a verdict of guilty or not guilty in relation to each charge.

If the jury is still deadlocked, a hung jury may be declared and the trial will come to an end. In this situation, the prosecution may seek a retrial or it may decide to abandon the matter.

In criminal trials that are heard by a Judge alone, it is the judge who deliberates.

Verdict in a Criminal Trial

If a guilty verdict was delivered, the matter will progress to a sentencing hearing. Evidence can be called by the defence at the sentencing hearing to highlight any mitigating circumstances. A sentencing report may also be ordered to assist the Judge to decide on the most appropriate sentence.

If a not guilty verdict was delivered, all charges are dismissed and the defendant is free to go.

Appealing after a criminal trial in New South Wales

If the prosecution or defence is unhappy with the outcome or believes that an error has been made, the party has 28 days to lodge an appeal in the Court of Appeal.

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.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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