NSW Criminal Court Proceedings | Invictus Legal

Understanding Criminal Trials in NSW Higher Courts

In New South Wales, when serious criminal charges proceed to trial in the District or Supreme Courts, the process can be complex and demanding. At Invictus Legal, we provide expert representation throughout this challenging process.

Classification of Criminal Offences in NSW

Criminal offences in NSW fall into three main categories:

1. Summary Offences

• Finalised in the Local Court

• Examples include minor driving offences, common assault without injury, and most public order offences

• Maximum penalty typically limited to 2 years imprisonment

• Prosecuted by police prosecutors

2. Indictable Offences

• Table 1 Offences: Either the prosecution (DPP) or defence can elect to have these matters heard in a higher court:
  

  • Examples: Indecent assault, assault occasioning actual bodily harm, stealing property valued over $5,000

  • Prosecution must prove all elements of the offence beyond reasonable doubt

  
  

• Table 2 Offences: Only the prosecution (DPP) can elect to have these matters heard in a higher court:
  

  • Examples: Stalking or intimidation, common assault, stealing property valued under $5,000

  • Generally remain in the Local Court unless particularly serious

3. Strictly Indictable Offences

• Must be finalised in the District or Supreme Court

• Examples: Murder, sexual assault, commercial drug supply, armed robbery

• Carry the most severe penalties, including lengthy imprisonment

• The prosecution must prove all elements beyond reasonable doubt

Defended Hearings in the NSW Local Court

What is a Defended Hearing?

A defended hearing is essentially a trial before a magistrate in the Local Court. When a person pleads not guilty to summary offences or indictable offences being dealt with summarily, the matter proceeds to a defended hearing where evidence is presented and the magistrate determines whether the prosecution has proven the case beyond reasonable doubt.

Legal Framework

Defended hearings in NSW are governed by:

• Criminal Procedure Act 1986 (NSW), particularly Chapter 4

• Evidence Act 1995 (NSW)

• Local Court Practice Directions and Notes

The Defended Hearing Process

1. Entering a Not Guilty Plea

When you plead not guilty to charges in the Local Court, the matter will be adjourned for a defended hearing. The court's primary duty is to ensure a fair trial and determine the case on its merits according to law.

2. Brief of Evidence

The prosecution must serve a brief of evidence on the defence before the hearing date. This typically includes:

• Police and witness statements

• Relevant documents and exhibits

• Forensic and expert evidence

• Electronic recordings of interviews (ERISPs)

The brief must be served within timeframes established by the court, generally at least 4 weeks before the hearing date.

3. Pre-Hearing Preparation

Effective preparation is crucial and may include:

• Analysing each element of the offence and the evidence supporting each element

• Identifying legal issues such as the admissibility of evidence

• Preparing to challenge prosecution evidence

• Determining whether your client will give evidence

• Preparing defence witnesses

• Considering potential legal arguments

4. The Hearing Procedure

On the day of the hearing:

• The court must hear the prosecutor, their witnesses and evidence

• The court must hear the accused person, their witnesses and evidence (if the accused chooses to present a case)

• Both parties may examine and cross-examine witnesses

• The prosecutor may call witnesses in reply to the defence case

5. Prosecution Case

The prosecution presents its case first by calling witnesses and tendering evidence. Each witness:

• Gives evidence-in-chief (questioned by the prosecutor)

• May be cross-examined by the defence

• May be re-examined by the prosecutor on issues arising from cross-examination

The prosecution bears the burden of proving every element of the offence beyond reasonable doubt.

6. Defence Case

After the prosecution closes its case, the magistrate considers whether a prima facie case has been established. If so, the defence has an opportunity to:

• Make submissions that there is no case to answer

• Present evidence from the accused (if they choose to testify)

• Call defence witnesses

• Make closing submissions

The accused has no obligation to give evidence or call witnesses, and has the right to silence.

7. Decision and Sentencing

After hearing all evidence and submissions, the magistrate will:

• Determine whether the prosecution has proven the case beyond reasonable doubt

• Provide reasons for the decision

• If the accused is found guilty, proceed to sentencing (immediately or at a later date)

Strategic Considerations for Defended Hearings

At Invictus Legal, our approach to defended hearings includes:

Evidentiary Challenges

We meticulously examine all evidence to identify:

• Admissibility issues under the Evidence Act

• Procedural irregularities

• Reliability of witness evidence

• Potential exclusion of evidence that was improperly or illegally obtained

Legal Defences

We explore all available legal defences, including:

• Self-defence

• Duress

• Necessity

• Mental health impairments

• Honest and reasonable mistake

Procedural Fairness

We ensure your rights to procedural fairness are protected, including:

• Full disclosure of the prosecution case

• Adequate time to prepare

• Opportunity to test prosecution evidence

• Fair hearing before an impartial judicial officer

The Criminal Trial Process in Higher Courts

Committal Proceedings

When your matter is referred to a higher court, it first undergoes committal proceedings in the Local Court to determine if there is sufficient evidence for trial.

Pre-Trial Procedures

• Case Conferences: Negotiations between defence and prosecution

• Pre-Trial Hearings: Legal arguments about admissibility of evidence

• Arraignment: Formal reading of charges where you enter your plea

Judge Alone or Jury Trial

Most serious criminal trials in NSW proceed before a jury of 12 people. However, you may apply for a judge-alone trial in certain circumstances:

• If both prosecution and defence agree, the court will make this order

• If the prosecution disagrees with a defence application, the court may still order a judge-alone trial if it's in the interests of justice

• Judge-alone trials are not available for Commonwealth offences

Trial Process

1. Jury Selection

For jury trials, 12 jurors are selected from a panel. In some cases, up to three additional jurors may be empanelled.

2. Opening Addresses

The prosecution presents its opening address outlining the charges and evidence they intend to present. The defence may also make an opening address.

3. Prosecution Case

• Prosecution witnesses give evidence about relevant facts

• Evidence may include witness testimony, documents, CCTV footage, and forensic evidence

• Defence can cross-examine each witness to test reliability and credibility

• The prosecution has an opportunity for re-examination

4. Defence Case

The defence is not obligated to call evidence or prove anything. The burden of proof remains entirely on the prosecution to prove every element of the offence beyond reasonable doubt.

If a defence case is presented:

• Defence witnesses follow the same process as prosecution witnesses

• The accused has the right to remain silent and is not required to give evidence

5. Closing Submissions

Both sides present closing arguments summarizing their case and how the evidence supports their position.

6. Judge's Summing Up and Jury Deliberation

The judge provides directions on the law and summarizes the evidence and arguments. The jury then deliberates to reach a verdict.

7. Verdict

For most NSW offences, the jury must initially strive for a unanimous verdict. In certain circumstances, a majority verdict (11:1) may be permitted. Commonwealth offences always require unanimous verdicts.

Appeals from Local Court Decisions

If you are dissatisfied with the outcome of a defended hearing, you may have grounds to appeal to the District Court. Appeals must be lodged within 28 days of the magistrate's decision and may be against:

• Conviction

• Severity of sentence

• Both conviction and sentence

Why Choose Invictus Legal for Your Criminal Defence

At Invictus Legal, we understand that facing criminal charges can be overwhelming. Our experienced criminal defence team:

• Meticulously examines all evidence to identify weaknesses in the prosecution case

• Develops strategic defence approaches tailored to your specific circumstances

• Has extensive experience in defended hearings and complex jury trials

• Provides clear guidance throughout the entire process

Contact Invictus Legal

If you or someone you know is facing criminal charges that may proceed to a defended hearing or trial, contact Invictus Legal today. Our specialist criminal defence lawyers have the expertise to help you navigate this challenging process and achieve the best possible outcome.

P: 02 8553 0500

Email: info@invictuslegal.com.au

Disclaimer: This information is general in nature and should not be relied upon as legal advice. Each case is unique and requires specific legal advice tailored to individual circumstances.