How does a criminal trial work?

How Criminal Trials Work

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In NSW, when an accused person is committed for trial, this means that the person has pleaded not guilty.  See our factsheet about pleading not guilty here.

Criminal trials take place in the District Court and the Supreme Court.  For offences that the Local Court deals with, these cases go through a defended hearing or simply a hearing.

In most cases before the court, proceedings commence in the Local Court.[1]  The charges that move from the Local Court to the District Court and the Supreme Court are for offences which only these jurisdictions deal with.  The terminology for these offences is ‘strictly indictable’ offences.  In certain other situations the Office of the Director of Public Prosecutions elect to take charges to the higher jurisdictions.  An accused person can also make this election for some offences.

Trials in the District and Supreme Court of NSW

When the matter moves to the District Court and the Supreme Court for a trial an accused will face ‘arraignment’ by the Court.  This is the presentation of an indictment with the charge or multiple charges. Then the accused gets an opportunity to formally enter a plea.  Once a plea of not guilty is confirmed the Court will list the matter for a trial.

An accused person can appear before the court self-represented or represented by criminal defence lawyers.  In the District and Supreme Court an accused person usually has a legal team which consists of a solicitor and barrister. Having a qualified and experienced criminal defence lawyer is key to your chances of fighting the charges successfully.

Downing Centre courts in Sydney CBD

The trial takes place before a jury of 12 people and a Judge, to determine whether the Crown can prove the guilt of the accused beyond a reasonable doubt.

The first step if to ‘empanel’ the jury.  This is the process of selecting jury members from a larger jury panel.  The accused and the Crown can make a number of objections to jurors before they are sworn in.  Once jury selection is complete, it is their role to be the judge of the facts. Consequently they determine whether an accused is guilty or not guilty. They do this after hearing all the evidence, submissions by the parties and directions from the trial judge.

The trial judge will briefly describe to the jury the trial process.  It is the role of the trial judge to be the judge of the law.  This means the trial judge will determine any legal issues that arise.  This usually happens in the absence of the jury.

Criminal Trial Process

1. Opening addresses

The Crown will firstly address the jury with a statement and summary of its case against the accused.  Counsel for the accused can open but this is only to indicate the issues in contention for the trial.

2. The Crown case

To prove its case, the Crown then calls witnesses to give evidence in the trial.  Witnesses that it may call include:

  • police witnesses,
  • civilians, or
  • expert witness.

An accused person should have gotten a copy of the statement for any witness that the Crown will call prior to that witness giving evidence.  Unless there is a good reason not to do so, the Crown must call all witnesses necessary to unfold the narrative of events for the matter. This means that in some instances the Crown has an obligation to call a witness even if it does not assist its case.

Counsel for the accused gets an opportunity to ask questions of any Crown witness by way of cross-examination. 

In many trials, the Crown also seek other things to put in as evidence such as:

  • documents,
  • photographs,
  • video footage, and
  • CCTV.

This evidence, if deemed to be admissible by the Court, becomes an exhibit in the trial.  The jury get copies of the exhibits to assist them in determining the issues in the trial.  

At the conclusion of the Crown case, if the evidence fails to establish an essential ingredient of the charge, the trial judge has a duty to direct an acquittal.

3. The Defence

There is no burden of proof for an accused person. Also an accused person has a right to silence.  This means that there is no requirement that the accused have a defence case or for an accused person to give evidence.

If an accused person calls evidence gives evidence or calls evidence from other witnesses, that evidence is treated the same as any other witness in the trial.  The Crown is also given an opportunity to cross-examine any witness.

As accused may also call evidence as to his or her good character.

In some circumstances where there is a defence case, the Crown may call evidence in reply to evidence given by the accused.

4. Addresses

Once the evidence is complete, the Crown and Defence then have an opportunity to address the jury or the judge if it is a judge-alone trial.

The Crown address first and make submissions based on the evidence as to why the offences are proven beyond a reasonable doubt.  The Defence then address second, highlighting the reasons for an acquittal.

5. Judge Summing up

A crucial role of the trial judge is to provide a summing up to the jury. The summing up the includes a summary of the evidence and arguments by made by the parties.  The jury also get directions regarding the relevant law that is necessary to determine the charge or charges.

Even in a judge-alone trial, the judge will provide a summing up.

6. Deliberation and verdict

Once the evidence, addresses and summing up is complete the jury commences its deliberations to determine the verdict(s).  There is no time limit on how long a jury can or should deliberate.  The jury receive advice that whilst each juror need not agree on the same reasons for doing so, they must be unanimous as to the verdict on each charge. 

Once the jury reaches a unanimous verdict or each charge as necessary, this will be announced to the court: guilty or not guilty.  The jury do not provide reasons for a verdict. 

This is in contrast to a judge-alone trial, in which the judge has to provide a judgment that details all the evidence and relevant legal principles that form the basis for the judges’ findings.

Once the verdict is announced the trial phase of the proceedings is complete.

[1] The DPP also has the power to present an ex officio indictment which means the magistrate does not commit an accused for trial.

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