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The Criminal Trial Process (WA)

Defending a criminal charge can be very daunting, particularly if you are unfamiliar with the criminal justice system. Trials can occur in the MagistratesDistrict, or Supreme Court. The procedures that will be followed are slightly different depending on which court a matter is being finalised in. This article outlines the criminal trial process in the Magistrates Court. 

Indictable, offences, summary offences and ‘either way’ offences

The court in which a trial is held usually depends on the seriousness of the offence. For example, in Western Australia common assault is a ‘summary’ offence, meaning that it is always heard in the Magistrates Court. Assault occasioning bodily harm is an ‘either way’ offence, meaning that it can be finalised in the Magistrates Court or in the District Court. A charge of grievous bodily harm is a strictly ‘indictable’ offence which means that it can only be finalised in the District Court on ‘indictment’. Murder, attempted murder, and manslaughter are finalised only in the Supreme Court as these very serious crimes. 

Early Trial Process

Once the accused enters a plea of not guilty, their matter will usually be adjourned to a ‘trial listing date’. On this date, the matter will be allocated the earliest available date for trial. The length of a trial depends on many things, including how many charges are being contested and how many witnesses are being called. It may take as long as a year before a matter comes to trial.

Before the trial date, the prosecution will serve the defence with a brief of evidence that contains all the statements, interviews, CCTV and other evidence that the prosecution intends to rely on at trial.

Disclosure of the brief of evidence is provided automatically for ‘either way’ offences and indictable offences. However, for summary offences, the defence must ask the Magistrate for an order for disclosure. The magistrate will decide whether disclosure is appropriate in the circumstances. Once the defence has received disclosure, it will be able to determine the strength of the prosecution case. Where the prosecution case is strong, it may be advisable for the accused to change their plea and finalise the matter without a trial.

Trials in the District and Supreme Court are generally decided by a jury. In a Magistrates Court trial, there is no jury. The Magistrate is the judge of both fact and law. Prior to and during a trial, the accused is treated as innocent until proven guilty. The prosecution has the burden of proving the accused guilty of every element of the offence ‘beyond a reasonable doubt’. This means that the only logical explanation that can be inferred from the evidence is that the accused is guilty of the crime.

The Magistrates Court Criminal Trial Process 

A criminal trial begins with the prosecution opening its case and outlining to the court what must be proven to establish guilt. The defence will then advise the court of any facts that are agreed between the parties, and where the defence’s case diverges from that of the prosecution. In other words, the defence will highlight what significant issues are in dispute.

The prosecution will then call its witnesses, who will tell their version of events. Once a witness has given their account of what happened, the defence will cross-examine them. The prosecution then may re-examine the witness to clarify any issues that have arisen during cross-examination.

Once all the prosecution witnesses have been called, the prosecution may play a ‘video record of interview’. This is a video recording of the interview the police had with the defendant.

Once the prosecution has closed its case, the defence will open its case. An accused person is not obliged to give evidence in their defence at a trial. No adverse inference can be drawn if the accused chooses not to give evidence. There are many reasons that a person might not want to give evidence, including something as human as sheer fear of doing so. Whether or not to give evidence in their defence is a decision for the accused to make in consultation with their lawyer.

If the accused does give evidence, their lawyer will ask them to tell their version of events. They will then be cross-examined by the prosecution. The defence may wish to re-examine the accused to clarify any issues that have arisen during cross-examination.

After all witnesses have been called, the prosecution will begin its closing submissions, summarising the strengths of its case and attempting to persuade the court that the person should be found guilty. The defence will then make its closing submissions and highlight the weaknesses in the prosecution’s case.

After the court has heard all the evidence, the magistrate will decide on the facts and law. Finally, the magistrate will then arrive at a verdict based on all the evidence.


It is important that any person accused of criminal offences receives thorough legal advice prior to trial. It is crucial that the lawyer makes the accused aware of the strengths and weaknesses of the prosecution case and the strengths and weaknesses of the defence they plan to run.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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