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Going to
Court 3 - General Stages in a District or Supreme Court Trial
So
you’ve been committed to stand trial in the District or Supreme
Court. In these higher courts, the law and procedure are quite
complex, and you really must ensure that you have a lawyer to
represent you. If you can’t afford a private lawyer, you should:
Fill
out and lodge an ‘Application for Legal Aid’, which can be obtained
from the Legal Aid Commission. Some private lawyers will provide you
with a form and help you fill it out free of charge. In some cases,
the Legal Aid Commission will fund those lawyers to represent you.
Contact a private lawyer who’ll help me fill out a legal aid
application form
Or;
Contact the Legal Aid Commission’s Helpline on 1800 806 913 for
advice and assistance.
1. Steps in a District or Supreme Court trial
The trial process is quite complicated and
confusing, especially when you’ve never been exposed to it before.
The following is a basic guide to the main steps in the process.
a) Arraignment
The first step is called
‘arraignment’. This is where the Judge’s Associate (who is the
person sitting in front of the judge) reads aloud to the Accused
(who is the person on trial) each count on the indictment (ie each
charge). After each count is read, the Judge’s Associate will ask
the Accused: ‘how do you plead, guilty or not guilty’. The Accused
will then say either ‘guilty’ or ‘not guilty’.
During the ‘arraignment’, there will be a large number of people in
the public area of the Courtroom. These are prospective jurors ie
the group from which the jury panel will be chosen.
Note: if you are to be arraigned, stand when your name is called and
remain standing until you have entered pleas to all the charges. Try
to remain calm and composed, and stay focused on the Judge’s
Associate throughout the process.
b) Jury empanelment
The next stage is to select (or ‘empanel’) a jury. This is done in
the following way:
1. The Judge’s
Associate will pick numbers from a box; a bit like a lottery. Each
prospective juror will have a numbered ticket, and if their number
is picked they will take a seat in the ‘jury box’. Each person will
take a bible (unless they wish to give an ‘affirmation’ rather than
swear an ‘oath’). 12 people will initially be picked in this way;
then
2. The Judge’s
Associate will ask each potential juror to stand up and swear an
‘oath’ (on the bible) or an ‘affirmation’ (if they dont wish to
swear on the bible). As each juror stands up, the Prosecutor or
Defence lawyer can have that juror removed from the jury by saying:
‘challenge’ followed by the name of their client eg ‘challenge Mr
Brown’. The Prosecution represents the ‘Crown’, so the Prosecutor
will say ‘challenge Crown’. Each Accused will have 3 ‘challenges’,
and the Prosecutor will have 3 challenges for every Accused person.
So, if you and two others are on trial at the same time, you
will have 3 challenges, each of the two other Accused will
have 3 challenges (so 9 challenges altogether for the 3 Accused),
and the Prosecution will have 9 challenges.
3. When a
potential juror is ‘challenged’, he or she will leave the jury box.
Another ‘lottery’ will take place to fill the seats of those who are
challenged. The replacements can also be challenged, until finally
12 unchallenged people are left. These remaining 12 form the ‘jury
panel’.
c) Prosecution
opening
The Judge will then invite the Prosecutor to give a general outline
of what is being alleged against the Accused. No witnesses are
called at this stage and no documents are ‘tendered’ (ie handed up
to the Judge as evidence).
d) Defence opening (optional)
The Judge will then ask the Defence if it would like to outline its
case. The Defence will usually only give an extremely general
opening or no opening at all, so that it doesn’t tie itself down to
a specific version of events. It is often better for the Defence to
hear the whole Prosecution case (ie to wait until all of the
Prosecution witnesses have given their evidence) before deciding
whether or not to give an ‘opening address’.
e)
Prosecution case
The Prosecution witnesses are then
called to the witness stand one at a time. They may include police
officers, civilian witnesses (eg people who saw or heard the
events), customs officers (in drug importation cases), expert
witnesses (eg DNA experts, psychiatrists, other doctors) etc.
(i)
examination in chief
After being ‘sworn in’, each
Prosecution witness will first be questioned by the Prosecutor.
There are many rules of evidence that lawyers must follow when
asking questions. One of the rules is that when questioning your own
witness, you cannot usually ask ‘leading questions’, which are
questions that contain or suggest a particular answer.
The following are examples of ‘leading questions’:
·
‘you went to Drinkalot Pub at around 8pm on 27th
December didn’t you?’.
This question suggests that the witness answer as follows: ‘I went
to Drinkalot Pub at..... etc’. Similarly,
·
‘did you then see the Accused pointing a gun at the teller?’
Again, this suggests the answer: ‘I saw the accused pointing a gun
at the teller’. In contrast, the following questions are not
leading, as they do not contain or suggest a particular answer:
·
‘when and where did you go then?’; and
·
did you see the Accused do anything after that?’.
(ii) cross-examination
After the Prosecutor has finished questioning a witness, the Defence
will have the opportunity to ‘cross-examine’ (ask questions to) that
witness. Leading questions are allowed at this stage. ‘Cross
examination’ gives the Defence a chance to reveal any
inconsistencies or untruths in the witness’s evidence. It also
allows the Defence to ‘put its case’ ie to suggest what the
Accused’s defence will be. For example, the Defence lawyer may ‘put
its case’ to a Prosecution witness as follows:
· ‘I
put it to you that it wasn’t my client Mr Smith that you saw point
the gun at the teller, but actually another person Mr Jones. What do
you say about that?’
The Defence must ‘put its
case’ at some stage during the trial if it wants to rely on those
facts as a defence to the charges. In other words, if a Prosecution
witness says during ‘examination in chief’ that Mr Smith was holding
a gun but the Defence fails to suggest at any time that Mr
Smith was not doing so, the Defence cannot say during its closing
address that Mr Smith is innocent because he was not holding a gun
(this rule is often referred to as the ‘Rule in Brown v Dunn’). It
is therefore very important that the Defence ‘put its case’ at some
stage.
(iii) re-examination
If new facts or issues are
raised during ‘cross examination’, the opposing party can ask
questions (in other words ‘re-examine’) about those facts or issues
only. New facts or issues are those that did not arise during the
‘examination in chief’ of the particular witness. For example, if
during examination in chief Ms Pearly does not say anything about
the fact that she saw Mr Bloggs holding a gun, but she says this
when ‘cross examined’ by the Defence lawyer, the Prosecutor may ‘re
examine’ her (ie ask her questions) only about the issue of
who she saw holding the gun.
f) ‘Close’ of Prosecution case
After the questioning has finished,
the Prosecution will declare its case against the Accused ‘closed’ (ie
concluded).
g) ‘No case’ submission by Defence (optional)
If the Defence thinks that the
Prosecution case was particularly weak, it can ask the Judge at this
stage to ‘direct an acquittal’; in other words, to tell the jury
that it must find the Accused ‘not guilty’. The Judge will only do
this if he or she concludes that the Prosecution has failed to
produce enough evidence for any ‘reasonable jury’ to find the
Accused ‘guilty’. If the Judge ‘directs an acquittal’, the Accused
is ‘not guilty’ and will therefore be released.
h) Defence opening (optional)
The Judge will then ask, once again,
whether the Defence would like to outline its case. By this stage of
the trial, the Defence lawyers will know exactly what the
Prosecution is alleging. The Defence will also have obtained
detailed ‘instructions’ (ie information) from its client, and will
have formulated a defensive strategy.
i) Defence case
The Defence lawyers will then decide
which, if any, of their witnesses will be called to the witness
stand.
The Accused (optional)
The Accused does not have to give
evidence as a witness. In fact, one of the most difficult decisions
the Defence must make is whether to call the Accused to the witness
stand. In making that decision, the Defence will consider a number
of things, including:
-
the likely strength of the
Accused’s evidence.
If the Defence lawyers feel that the information received from
the Accused during conference is likely to substantially benefit
the defence, they will of course be more likely to advise the
Accused to give evidence.
-
the strength of the Prosecution
case.
If the Prosecution case is very strong, the Defence will be more
likely to advise the Accused that refuting evidence is required.
On the other hand, if the Prosecution case is very weak, the
Defence may feel that it is unacceptably risky to expose the
Accused to ‘cross examination’.
-
the likely ability of the Accused
to withstand ‘cross examination’.
Giving evidence as a witness is extremely stressful, especially
as an Accused facing the possibility of a lengthy prison
sentence. Because some people handle great pressure better than
others, the Defence lawyers may try to predict or test the
likely ability of the Accused to be composed and convincing
under ‘cross examination’. They may do this using their ‘gut
feeling’ and/or by asking ‘cross examination’ style questions in
conference. The Defence lawyers are, of course, more likely to
advise a confident, composed and convincing Accused to give
evidence than one who is extremely nervous and uncertain of
their answers.
If
the Accused chooses to give evidence, he or she will face the same
procedure as any other witness: examination in chief (by the Defence
lawyer), then cross examination (by the Prosecutor), and finally re
examination (by Defence, but only if new facts or issues were
raised during cross examination).
Other witnesses (optional)
The remaining Defence witnesses will then be called to the witness
stand one at a time, and questioned following the same procedure:
examination in chief (by Defence), cross examination (by
Prosecutor), then re examination (by Defence).
j) Prosecution closing statement
After the Defence witnesses have finished, the Prosecution will give
its ‘closing statement’ to the jury. That ‘statement’ may involve
the Prosecutor outlining the ‘elements of the offence’; in other
words, the ‘ingredients’ that must be proved by the Prosecution for
the Accused to be found ‘guilty’. For example, the ‘elements of the
offence’ of ‘robbery’ are as follows:-
1.
that the Accused intended to steal property; and
2.
that he or she did in fact take property;
3.
from a victim;
4.
using violence or by putting the victim in fear.
Note: - the Prosecution must prove each and every one of the
‘elements’ beyond reasonable doubt.
The Prosecutor will then try to convince the jury that the evidence
in the trial proves the guilt of the Accused ‘beyond reasonable
doubt’. To illustrate, the Prosecutor may say something like:
‘You heard the evidence of Mr X (a prosecution witness) that it was
Mr Smith (the Accused) pointing his gun and threatening Ms Fragile
(the bank teller). You also heard the evidence of Ms Fragile that
she was extremely scared and handed the cash to Mr Smith, who then
left the bank holding the bag of cash. Considering that evidence,
you the jury are entitled to find that Mr Smith intended to steal
money, that he did in fact steal money, that there was at least one
victim – whether that victim is Ms Fragile, others in the bank
and/or or the bank itself - and that Ms Fragile and others were very
frightened for their safety. That being so, the elements of robbery
are satisfied - and satisfied ‘beyond reasonable doubt’ - and you
are therefore entitled to return a verdict of ‘guilty’…’ etc etc.
k) Defence closing
-
After the Prosecutor has finished, the
Defence will be invited to give its ‘closing statement’. The
Defence lawyer’s job is to raise ‘reasonable doubt’ in the
jury’s mind about the Accused’s guilt; in other words, to
convince the jury that the Accused may not have committed the
crime. He or she may do this by:
-
pointing out weaknesses in the Prosecution case, eg
inconsistencies or deficiencies in the evidence of Prosecution
witnesses;
-
pointing out strengths in its own case, eg credible evidence
given by the Accused and/or by other Defence witnesses;
-
offering alternative explanations for the events, eg the
possibility that someone else committed the offence; and so on.
-
To illustrate, the Defence lawyer may say
something like:
-
‘you heard my client’s evidence (ie the Accused’s evidence) that
he was at home at the time of the bank robbery. He did not
have to give evidence; in fact, an Accused person is quite
entitled not to take the witness stand at all.
However, he chose to take the stand and, therefore, to be cross
examined by the Prosecutor. His evidence is supported by the
evidence of his wife, Ms Smith, who you will recall took the
witness stand and confirmed that her husband was definitely at
home at the time of this offence….. etc etc. You will also
recall the uncertainties in Ms Fragile’s evidence who – having
experienced an extremely traumatic confrontation – was
understandably unsure of several things, including……
(examples)…. In those circumstances, you will be well-justified
in having a reasonable doubt in your minds about whether my
client was at the bank at all; in fact, one might think
that you should, considering all of the evidence, have
such a doubt; especially because my client was, in fact,
not at the bank on the day in question.. etc etc… Where
there is any such reasonable doubt, you must find my client ‘not
guilty’… etc.
l) Judge’s ‘summing-up’ to jury
The next stage is the judge’s ‘summing up’, which is where the judge
summarises the issues, arguments and evidence in the case. In the
‘summing up’, the judge might say what he or she thinks the case
boils-down to, summarise the lawyers’ central arguments, and outline
the main points of each significant witness’s evidence.
m)
Judge’s ‘directions’ to jury
The Judge will then explain the
relevant laws and how they relate to the case at hand. This is
called ‘giving directions’. For example, the Judge might direct as
follows:-
‘If you do not have a ‘reasonable doubt’ that the Accused
pointed the gun at Ms Fragile (the bank teller) and took the money
using such violence, then you must find him ‘guilty’. You must also
return a verdict of ‘guilty’ if you find ‘beyond reasonable doubt’
that, although the Accused didn’t hold the gun or take the money
himself, he was present and involved in the crime in another
capacity. It wouldn’t matter if he acted as ‘crowd controller’,
‘lookout’, ‘getaway-driver’ or otherwise; if he was there and
involved, then you must find him ‘guilty’ of the crime. This is
because the law would consider him part of the ‘joint criminal
enterprise’ that committed the offence.
If, on the other
hand, you have a ‘reasonable doubt’ that the Accused was present at
the bank or that he was, in fact, involved in the offence, then you
must find him ‘not guilty’. You must also return a ‘not guilty’
verdict if you have a ‘reasonable doubt’ about any of the other
‘elements’ or ‘ingredients’ of the offence; such as whether the
Accused in fact intended to steal. You can only return a
‘guilty’ verdict if the Prosecution has proved each and every one of
the elements ‘beyond reasonable doubt’……. etc etc’.
n) Jury deliberations
After the Judge has finished, the jury will be asked to retire to
consider its ‘verdict’; in other words, to decide whether the
Accused is ‘guilty’ or ‘not guilty. In any jury trial, the Judge is
the judge of the law and the jury is the judge of
the facts. This means that although it must accept the
Judge’s ‘directions’ about the law, the jury is ultimately
responsible for determining the ‘verdict’, and it will do this based
on what it judges to be the facts. For example, if there is
conflicting evidence about whether or not the Accused was at the
bank at the time of the offence, the jury (not the Judge) must
determine the issue. Importantly, the verdict must be unanimous;
meaning that all 12 jurors must agree that the Accused is
either ‘guilty’ or ‘not guilty’.
It is expected that the jury will consider all of the evidence
before reaching a verdict. However, because jury deliberations are
secret, no-one except for the jurors will know exactly how the
verdict was reached.
o) Jury questions
If
any of the jurors have questions about the evidence, the jury
foreperson can pass a note containing the questions to the Court
Officer, who will in turn pass that note to the Judge. The Court
will then ‘re-convene’ (ie the lawyers, Court Officials and Accused
will be called back to the Courtroom) and the questions will be read
aloud by the Judge, usually in the absence of the jury. The Judge
and lawyers will then discuss whether the questions will be answered
and, if so, how they will be answered. The jury will then be brought
back into the Courtroom and advised of any answers.
Note:- the jury can ask questions in this way at any stage
of the trial.
p) Verdict
When a verdict is reached, the Court (including the jury) will
re-convene. The jury foreperson will then stand up, after which the
Judge’s Associate will read the charges one at a time, asking the
foreperson each time: ‘how do you find the Accused, ‘guilty’ or ‘not
guilty’’. The foreperson will then give the verdict, after which the
Judge’s Associate will say: ‘so says your foreperson, so say you
all’. After all of the verdicts are given, the Judge will thank and
discharge the jury.
p)
Sentencing
If the Accused is found ‘guilty’, the
matter will be set-down for sentencing. If a ‘Pre-Sentence Report’
is ordered by the Judge, the sentencing will normally be held in 6-8
weeks. If not, and no other reports are required (eg medical or
psychological reports), the sentencing can occur at any time; even
on the day of the verdict (if that is suitable to the Judge and both
sides).
On
the day of sentencing, any character references and medical reports
will be handed-up to the Judge, and the lawyers will make
‘submissions’ to the Court (ie the lawyers will say things to the
Judge and sometimes hand-up documents). You can give evidence at
your sentencing even if you did not do so during the trial. The
Judge will then decide your penalty (see next topic ‘What’s the
worst that can happen – penalties’).
2. Frequently Asked Questions:
What should I wear?
You should always dress neatly when
going to Court. If you have a suit, you should wear it. If not, a
shirt and pants or any other neat-looking clothes are fine. If you
are in custody, ask a friend or relative to bring clothes to the
gaol.
Will the jury know if I am in custody?
The jury should only know you are being held in custody if
you wear ‘prison greens’ to Court. Needless to say, you will usually
create a better impression on the jury if you are not in prison
clothes.
How should I act?
Stay calm and composed throughout the
trial. Don’t stare at jurors, don’t make angry faces at the
Prosecutor or at unfavourable witnesses, don’t show disagreement (eg
shake your head or huff) or amazement (eg gasp or make other noises)
if the Prosecutor or a witness says something you don’t agree with
(even if they are lying). In short, act calmly and respectably
whatever happens.
What
about when I’m giving evidence as a witness?
If you are giving evidence, listen to
each question very, very carefully; especially during cross
examination. If you don’t understand a question, say: ‘I don’t
understand’ or ‘could you please re-phrase that question’. If you
don’t hear the question properly, say ‘could you please repeat that
question’. Do not be sucked into answering a question you
don’t fully understand or didn’t properly hear. Take your time
before answering each question; there is no rule that says you can’t
think about a question before answering it. If you don’t remember
something, say: ‘I don’t remember’ or ‘I don’t recall’ or ‘these
events happened so long ago, I really just can’t remember’ or ‘It
happened so quickly, I just can’t remember’… etc. The best answers
are usually ‘yes’, ‘no’ or ‘I don’t recall’. However, if you
feel that you really must explain your answer, you can do so; but be
very careful not to say anything that the cross examiner might use
against you.
What is a ‘voir dire’?
A ‘voir dire’ (pronounced ‘vwah dear’)
is when the jury is sent to the jury room (a separate, private room)
whilst the lawyers argue about the law. When the lawyers have
finished, the jury will be brought back into the Courtroom and the
trial will continue. Several ‘voir dires’ will normally take place
during any jury trial.
Why are ‘voir dires’ held?
Voir dires are held to determine legal
issues, such as whether certain documents are admissible under the
rules of evidence. For example, if the Accused gave an ERISP (a
record of interview to the police), a voir dire may be held to
determine what parts of the ERISP transcript, if any, are admissible
as evidence. Parts or all of the ERISP transcript may be inadmissible
if the police failed to follow certain rules, or if they asked
questions that were improper. Voir dires may also be held to discuss
matters such as: how a Judge will ‘direct’ the jury about the law;
if and how jury questions will be answered; the types of questions
permissible during ‘re-examination’, and any other matters involving
the application of law.
How is the jury ‘foreperson’ chosen?
The foreperson is selected by the jury panel in
the jury room soon after empanelment. There is no formula for
selecting a foreperson; the jury itself must decide how he or she
will be chosen. They may, for example, ask for candidates and have a
vote, or they may have a ‘lottery’ or draw straws, or
they may choose a person who has already served on a jury panel,
or they may just pick the person with the smallest feet;
whatever they like!
Does the ‘foreperson’ have more power than the
other jurors?
No. The foreperson’s role is merely as
a spokesperson for the jury; he or she has the same power as any
other jury member; nothing more, nothing less.
Does the jury get to see the witness
statements contained in the police ‘brief of evidence’?
Not normally. Statements contained in
the ‘brief of evidence’ (which is the stack of documents collected
by the police and given to the Defence some time before the trial)
are usually never seen by the jury. Rather, the witnesses who gave
those statements must attend Court personally and give their
evidence through questioning. Only in very rare circumstances are
such statements admissible as evidence; namely, in certain cases
where the witness is absolutely not available. In such cases, the
jury will see that particular statement only. Any ‘brief documents’
that aren’t witness statements (eg medical or forensic reports, drug
analyst certificates, photos, sketches etc) must be ‘tendered’ by
either the Prosecution or Defence and ‘admitted as evidence’ before
the jury gets to see them.
When and how can documents and other items be
‘tendered’ and ‘admitted’ as evidence?
Documents, video’s, photos, weapons, &
any other items can be ‘tendered’ (handed up to the Judge) at any
stage of the Prosecution or Defence case. If a thing is to be
‘tendered’, the tendering party (eg the Prosecution) will say ‘I
tender’ followed by a brief description of the item. The item will
then be shown to the other party (eg the Defence) who will say
either ‘no objection’, or something like: ‘I object, Your Honour’
followed by the reason for the objection. If there is an objection,
a ‘voir dire’ will often be held to decide whether or not the item
is admissible. If the item is admitted as evidence, it will be
marked as an ‘exhibit’ eg ‘exhibit A’.
As
a general rule, an item can only be tendered through a witness that
can verify the item. For example, an ERISP video (ie the videotaped
police interview of the Accused) will usually be tendered whilst the
police officer who conducted the ERISP is giving evidence.
Similarly, a weapon found at the crime scene will be tendered
through the police officer who found it, and a medical report will
be tendered while the doctor who prepared it is giving evidence.
Items cannot generally be tendered without a witness to verify them
at trial.
Does the jury have access to exhibits?
The Jury will have access to an
exhibit only if it was admitted into evidence while the jury
was present. If the exhibit was admitted during a voir dire, it will
remain part of the voir dire only (eg ‘Exhibit B on the voir dire’);
the jury will not have access to such an exhibit unless and until
it is later admitted while the jury is present.
Does the jury get to see the ‘transcript of
evidence’ recorded during the trial?
Yes. The jury can ask for the
transcript of evidence (which is a written record of the trial) at
any time during the trial. The entire transcript will sometimes be
made available to the jury without request at the start of
deliberations, especially in long trials where the evidence is
substantial and therefore difficult to remember.
Does the jury get to see the transcript of what
was said during ‘voir dires’?
No. The transcript relating to voir
dires must never be seen by the jury. If, at any stage, the jury
requests transcribed evidence (in other words, requests what was
said by a witness), the Court must take great care to remove any
records of what was said during a voir dire.
What if the jurors can’t all agree?
As stated earlier, the jury’s verdict
must be unanimous; in other words, the jury can only find the
accused ‘guilty’ or ‘not guilty’ if all 12 jurors
agree. If the jurors can’t agree, they can put say so in
a note to the Judge. If this occurs, the Court will re-convene and
the note will be read aloud. The Judge will usually then ‘direct’
(tell) the jury to be patient, to work through all of the evidence,
to be considerate of the views of their fellow jurors, and to ask
the Judge about anything they are unsure of.
If, after further deliberations, the jurors still can’t agree and
the Judge is satisfied that they will never agree, a ‘hung jury’
will be declared; meaning that the Accused will be neither ‘guilty’
nor ‘not guilty’. The Judge will then discharge the jury, and the
jury will be free to go. In such cases, the Prosecution will usually
prepare a fresh (new) indictment and the entire trial process will
start again with a new jury.
Do witnesses have to turn up to Court?
The witnesses will normally receive a
‘subpoena to give evidence’, which is a Court document requiring
them to attend Court. If a witness fails to turn up, the Judge may
issue a warrant for his or her arrest. If the witness is very
important, either party (ie Prosecution or Defence) may apply for an
‘adjournment’. The Judge will then decide whether or not to adjourn
the matter until later in the day or to another day.
What if your witness doesn’t say what you
expect?
If, during
examination in chief, a party’s own witness (eg Defence’s witness)
gives answers that are different to what he or she previously said
or which are unfavourable to that party’s (ie the Defence’s) case,
that party may ask the Judge to declare the witness ‘unfavourable’.
If the Judge does so, the party may ask that witness cross
examination-style questions (including leading questions).
How can
a solicitor help me?
If you are facing a Committal Hearing
or a District or Supreme Court trial, you should
contact a solicitor (lawyer) who is familiar with the criminal
law. He or she can:
·
advise you of your rights;
·
explain the charges against you;
·
explain your alternatives;
·
make a
bail application for you in Court (if you are refused bail by
police);
·
help you fill out and lodge a Legal Aid Application form; and
·
represent you at your Committal Hearing,
or at your District or Supreme Court trial.
For personalised advice and/or Court representation:
Contact us now | 
