Not everyone can afford a criminal defence lawyer.
If you can’t afford a criminal lawyer and Legal Aid won’t represent you, the following information may help you to represent yourself in court.
Going to Court is a nerve-racking experience for most people.
However, your day in Court will be a little easier if you know how to prepare, who’s who in the courtroom, who does what, what you’re supposed to do, and how it all works.
Get legal advice as soon as possible
The consequences of being convicted of a criminal offence can be severe.
Apart from the Court penalty (eg prison, fine, community service etc), the conviction will go on your criminal record, possibly reducing your job prospects and overseas travel opportunities.
Even relatively minor offences such as driving without a licence, possession of small amounts of drugs, minor assaults etc can carry harsh consequences.
If you are given a court date, contact Sydney Criminal Lawyers on (02) 9261 8881 for a Free First Appointment where we can advise you about your particular criminal or traffic charges, the possible penalties and the best course of action for your particular case.
It is important to get that advice even if you intend to represent yourself in Court.
Read the Court Attendance Notice and write down anything that is wrong
Whether or not you engage a lawyer, you should carefully read the allegations against you (they are contained in the Court Attendance Notice), taking special note of anything that isn’t right.
You should then write down in your own words everything that actually occurred at the time of the alleged offence.
Don’t worry if you can’t remember everything or if some of the things aren’t really relevant; the important thing is that you record the events while they are still relatively fresh in your memory.
If you eventually choose to engage Sydney Criminal Lawyers or another lawyer, your notes will help us understand and effectively present your case in Court.
Get all your papers ready
Put all your documents together, including your version of the events, your bail undertaking, the Court Attendance Notice or the facts/charge sheets, etc.
If you are coming to see a lawyer from Sydney Criminal Lawyers, give the documents to us as soon as possible.
If not, bring them to court with you.
Request an interpreter if you need one
If English is not your best language, ring the Court Registry (office) and ask them to arrange an interpreter for your Court appearance.
You should do this as early as possible to ensure that an interpreter is available. The service is free and Sydney Criminal Lawyers can arrange an interpreter on your behalf.
Be sure of the date, time and place
Always check and record your Court date and time.
That information will appear in the Court Attendance Notice, the charge sheet and/or your bail form.
The Court address will also appear in those documents.
If you don’t have the documents, ring and ask the relevant police station (ie the police that arrested you or sent the Court Attendance Notice). Althernatively, as Sydney Criminal Lawyers to do this on your behalf.
If you don’t know the address of the Courthouse, click on: Courts in NSW.
If your matter has already been to Court and you are unsure of the next Court date, ring and ask the Court Registry or ask Sydney Criminal Lawyers to do this on your behalf.
Note: if you fail to appear in Court, your matter may be decided in your absence and/or a warrant may be issued for your arrest.
How can Sydney Criminal Lawyers help me?
If you are summoned or charged, you should contact Sydney Criminal Lawyers to assist you.
- 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); and
- represent you at your Court hearing.
So you’ve obtained legal advice, thought about your options, put together your papers and arrived at the Courthouse early with a pen and paper.
What do I do when I get to the Courthouse?
Find out where your matter will be heard.
The first thing is to check which Courtroom your matter will be heard in.
All the matters for the day will be listed on sheets posted in the Court foyer (or some other common area).
The list will tell you the Courtroom and the number of your matter.
Write down the matter number. If you can’t find you’re matter or it’s not on the list, ask a Court Officer to help you.
Get advice from a lawyer, if you haven’t already done so
If you haven’t seen Sydney Criminal Lawyers yet, you can look for the ‘legal aid duty lawyer’, who will be in a designated room within the Courthouse.
That lawyer can give you free advice about your case. He or she can also advise you how to ‘adjourn’ your case, which means how to ask the Magistrate to come back on another day.
You can always contact Sydney Criminal Lawyers for expert legal advice from an Accredited Criminal Law Specialist before the next court date.
Wait for your turn
You will then have to wait until your case is called.
If you don’t have have a criminal lawyer, it is a good idea to wait inside the Courtroom and watch the private criminal lawyers (who usually go first) present their clients’ cases.
If you wait outside the Courtroom, a Court officer will come out and call you when your matter is reached.
If you don’t have a criminal lawyer, you should be prepared to wait all day for your turn.
Who’s Who in the Local Court?
When you walk into the Courtroom, you will notice various people standing or sitting at various places.
Each person has a specific and important function, and it helpful to know what each one does.
Who Does What?
1. The Magistrate
The Magistrate decides what happens in your case.
If you plead guilty or are found guilty, he or she will decide the penalty.
If you ask for bail or an adjournment, the Magistrate will decide whether or not to grant it.
2. The Prosecutor
It is the Prosecutor’s job to present the case against you.
In less serious matters (called ‘summary’ matters), the Prosecutor will be a police officer with some basic legal training.
In more serious matters (called ‘indictable’ matters), the Prosecutor will be a lawyer from the Office of the Director of Public Prosecutions.
3. The Defence solicitor
This is your criminal lawyer, who’s job it is to protect your interests.
He or she must advise you about the law and your options, including whether you should plead ‘guilty’ or ‘not ‘guilty’.
Whatever you are advised, you should be aware that how you plead (‘guilty’ / ‘not guilty’) is ultimately up to you, not your criminal lawyer.
There may be several criminal lawyers at the ‘bar table’ at any one time.
4. The Court Monitor
The Court Monitor ensures that everything said in Court is audio-taped.
5. The Court Officer
The Court Officer is there to ensure the smooth running of the Court list.
He or she will call you when your matter is reached, assist you if you can’t find your name on the list, and undertake general administrative duties for the Magistrate.
If you have an emergency and can’t wait your turn, the Court Officer can inform the Magistrate who may consider calling your matter more quickly.
If the Court Officer is busy, ask an officer in the Court Registry (office) to help you.
6. The Public
Anyone can sit and watch proceedings in the public area of any Courtroom, except in the Children’s Court and in special cases where the Magistrate or Judge orders a ‘closed Court’.
In such cases, a ‘closed Court’ sign will be posted outside the Courtroom.
It is always a good idea to attend Court and familiarise yourself with the Court process before the day of your hearing.
Also feel free to bring family and friends along to support you at your hearing.
Both you (the defendant) and the prosecution can bring witnesses to Court to give their version of the events.
Witnesses sit outside the Courtroom until they are called to the witness box.
What do I do when my matter is called?
When your matter is called, walk towards the front of the Court.
Make sure you bow to the Magistrate as you enter and leave the Courtroom.
If you have a lawyer representing you, sit behind him or her just in front of the public area; your lawyer will do the talking for you.
If you don’t have a lawyer, the Court Officer will direct you to a position in the Court; usually a microphone next to the ‘bar table’ where the lawyers are sitting.
First time matter is in Court
If you don’t have a criminal lawyer, the Magistrate will ask you a number of questions. The first questions will usually be something like:
- Are you ……………………? (your name)
- Do you have a criminal lawyer representing you?
- Are you ready to have your matter dealt with today?
You should address the Magistrate as ‘your Honour’.
If you are ready to proceed, the Magistrate will read out the charges against you, and then ask you to plead ‘guilty’ or ‘not guilty’.
You should never plead guilty until you have received legal advice from a criminal lawyer.
What if I’m not ready or my lawyer doesn’t turn up?
Sydney Criminal Lawyers will always turn up to your court case on time.
If you’re lawyer doesn’t turn up or if you’re not ready (eg because you want to get more advice), ask the Magistrate to stand the matter over to another day.
This is called ‘seeking an adjournment’.
You shouldn’t have a problem getting an adjournment on the first Court day, provided that you tell the Magistrate why you need one.
If you intend to plead ‘guilty’, it is a good idea to bring 3 written character references to Court with you.
Our Character Reference Guide will help your ‘referees’ (ie the people who give you a reference) properly prepare their references.
When you plead ‘guilty’, the Prosecutor will hand a copy of the police version of the events (called the ‘police facts’) to the Court.
The Magistrate may then ask you if you agree with those ‘facts’.
You should tell the Magistrate if there is anything you don’t agree with.
The Prosecutor will then hand up to the Magistrate a bundle of documents, which will include the ‘facts’, your criminal record and your traffic record (if it is a traffic offence).
It may also include witness statements against you, your record of interview with police (if you gave one) and other evidence.
After reading those documents, the Magistrate will ask you if you have anything to say.
If you have brought character references, you should say ‘may I hand up some character references Your Honour’.
The Court Officer will take the references from you and give them to the Magistrate.
After the Magistrate has read the references, he or she will again ask you if you have anything to say. At this point, you should tell the Court a little about yourself (eg if you are employed, what type of work you do, if you have any children, and any positive things about yourself, such as charity work you do etc) and give an explanation of how and why the offence occurred.
If you’re financial situation is bad, you should tell the Magistrate, so that he or she may consider reducing any fine.
Whatever you say, it is important that you accept your guilt, rather than just make excuses or blame others for your actions.
You should show that you are genuinely sorry for what you did and that it won’t happen again.
The Magistrate will then decide your penalty.
If the charges are serious and there is a possibility of a prison sentence, the Magistrate may order a ‘pre-sentence report’ (PSR) and adjourn the matter to another day.
A PSR is a report to the Court by the ‘Probation and Parole Service’.
It outlines many things about you and about the offence; such as who you are, why you may have committed the offence, whether you are genuinely sorry, whether it is likely that you will re-offend etc.
It also outlines the sentencing options available in your case eg bond, community service etc.
The Magistrate will consider the report before sentencing you.
After a PSR is ordered, an officer from the Probation and Parole Service will arrange to meet you for an interview.
An ‘options PSR’ is a short report that can be done on the day of court. A ‘full PSR’ is a longer report usually takes 6-8 weeks to prepare.
Pleading ‘not guilty’
If you plead ‘not guilty’, the Magistrate will give you a ‘hearing date’, which is when witnesses will attend the Court to give evidence against you.
You can also bring witnesses and supporting materials (eg documents, photos etc) to the hearing.
On the day of the hearing, your matter will be called and you will be shown to the ‘bar-table’ (where the criminal lawyers sit).
The Prosecutor will then tell the Magistrate a little about the case, after which the Prosecutor will call and question witnesses one at a time (this is called ‘examination-in-chief’).
You should take notes of any answers you feel are wrong or anything you might want to ask each witness.
After the Prosecutor has finished with a witness, you will be able to ask that witness questions (this is called ‘cross-examination’)
Finally, if your questions raise new facts or issues that weren’t raised by the Prosecutor’s questions, the Prosecutor may then ask the witness questions about those facts or issues only (this is called ‘re-examination’, and is a little more complicated).
So there can be three stages in questioning a witness: examination-in-chief, cross-examination, and re-examination.
After all the prosecution witnesses have given their evidence, you may then call your witnesses and ask them questions (your ‘examination-in-chief’).
The Prosecutor will have the opportunity to ‘cross-examine’ each of your witnesses.
And lastly, if the Prosecutor’s questions raised new matters or issues, you can ‘re-examine’ your witness about those things only.
After the questioning has finished, you will be given a chance to comment on all of the evidence (this is called a ‘closing statement’).
You should point out the strengths in your case (eg how your witness gave credible evidence to support your version of the events) and any weaknesses in the Prosecution case.
When you have finished, the Prosecutor will give his or her ‘closing statement’.
The Magistrate will then decide whether to dismiss the charges (ie find you ‘not guilty’) or to convict you (ie find you ‘guilty’).
It is important to keep in mind that the prosecution must prove the charges against you beyond reasonable doubt.
If it fails to do this, the charges against you must be dismissed, and you will be free to go without penalty.
For more information on examination in chief, cross examination, re-examination and closing statements, see next topic: ‘General Stages in a District or Supreme Court Trial’.
What is a ‘committal hearing’?
If you have been charged with a serious offence (called an ‘indictable offence’), a Local Court date may be set down for a Magistrate to decide whether there is enough evidence for your case to go to the District or Supreme Court for a trial before a judge and jury.
This procedure is called a ‘committal hearing’.
You don’t have to enter a plea at the committal hearing.
However, if you plead ‘not guilty’ and the Magistrate decides that there is sufficient evidence for a reasonable jury to convict you, your case will be sent to trial; this is called being ‘committed to stand trial’.
If you plead ‘guilty’, your matter will be listed for sentencing in the District or Supreme Court; this is called being ‘committed for sentencing’.
If you wish to have a certain prosecution witness brought to the committal hearing, you must let the Magistrate know on the Court date before the committal hearing.
So, if you go to Court on 5th June and the Prosecutor wants to set a committal hearing for 28th June, you must tell the Magistrate on 5th June that you want a particular witness brought to the committal.
The Magistrate will then set a separate Court date for you to explain why you want that particular witness brought to the committal hearing (eg you may want to question the witness about inconsistencies in his statement to police).
This is called a section 91 application.
What happens after the ‘committal hearing’?
If you are ‘committed to stand trial’, the Director of Public Prosecutions will prepare a document that lists each charge being brought against you.
That document is called an ‘indictment’.
There may be several charges on the indictment and each charge is called a ‘count’. The indictment is then sent to the appropriate District or Supreme Court, which will list the matter for trial.
See next topic: ‘General stages in a District or Supreme Court Trial’
How can Sydney Criminal Lawyers help me?
If you are charged with a criminal or traffic offence, you should contact Accredited Criminal Lawyers such as Sydney Criminal Lawyers to assist you.
Sydney Criminal Lawyers 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); and represent you at your Court hearing.
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 should have experienced criminal lawyers such as the Accredited Criminal Law Specialists at Sydney Criminal Lawyers to represent you.
The following is a basic guide to the main steps in a District or Supreme Court trial.
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:
- 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
- The Judge’s Associate will ask each potential juror to stand up and swear an ‘oath’ (on the bible) or an ‘affirmation’ (if they don’t 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.
- 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 criminal defence lawyer if he or she would like to outline the defence case.
The criminal defence lawyer will usually only give an extremely general opening or no opening at all, so that it doesn’t tie the defence down to a specific version of events.
It is often better for the criminal defence lawyer 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 criminal defence 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?’.
After the Prosecutor has finished questioning a witness, the criminal defence lawyer will have the opportunity to ‘cross-examine’ (ask questions to) that witness.
Leading questions are allowed at this stage.
‘Cross examination’ gives the criminal defence lawyer a chance to reveal any inconsistencies or untruths in the witness’s evidence.
It also allows the defence lawyer to ‘put its case’ ie to suggest what the Accused’s defence will be.
For example, the criminal 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 criminal defence lawyer 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 criminal defence lawyer fails to suggest at any time that Mr Smith was not doing so, the defence lawyer 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 your criminal defence lawyer ‘put its case’ at some stage.
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 criminal 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 criminal defence lawyer thinks that the Prosecution case was particularly weak, we 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 the case will be dismissed.
h) Defence opening (optional)
The Judge will then ask, once again, whether the criminal defence lawyer would like to outline his or her case.
By this stage of the trial, the defence lawyer will know exactly what the Prosecution is alleging.
The criminal defence lawyer will also have obtained detailed ‘instructions’ (ie information) from the Accused, and will have formulated a defensive strategy.
i) Defence case
Sydney Criminal 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 Sydney Criminal Lawyers must make is whether to call the Accused to the witness stand.
In making that decision, the criminal defence lawyer will consider a number of things, including:
- the likely strength of the Accused’s evidence. If we 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, we will be more likely to advise the Accused that refuting evidence is required. On the other hand, if the Prosecution case is very weak, we 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 criminal defence lawyers may try to predict or test the likely ability of the Accused to be composed and convincing under ‘cross examination’. Sydney Criminal Lawyers do this using experience and/or by asking ‘cross examination’ style questions in conference. Sydney Criminal 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 criminal defence lawyer), then cross examination (by the Prosecutor), and finally re examination (by the criminal defence lawyer, 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:
- that the Accused intended to steal property; and
- that he or she did in fact take property;
- from a victim;
- 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) Criminal defence closing
- After the Prosecutor has finished, the criminal defence lawyer will be invited to give its ‘closing statement’. Sydney Criminal Lawyers’ 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. We 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 criminal 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.
Until recently, the law in NSW was that jury verdicts had to be unanimous; meaning that all 12 jurors had to agree that the Accused is either ‘guilty’ or ‘not guilty’. Recently, the law has changed to allow ‘majority verdicts’ whereby all except one juror can agree on a verdict (eg 11 guilty and 1 not guilty = guilty verdict).
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 criminal 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.
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.
If the Accused is found ‘guilty’, the matter will be set-down for sentencing.
If a ‘Full 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 criminal defence lawyer will make ‘submissions’ to the Court (ie the criminal lawyers will say things to the Judge and sometimes hand-up documents).
The Accused can give evidence at the sentencing even if he or she did not do so during the trial. The Judge will then decide the penalty.
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 criminal lawyers argue about the law.
When the criminal 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’?
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?
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’?
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, until recently the jury’s verdict had be unanimous; in other words, the jury could only find the accused ‘guilty’ or ‘not guilty’ if all 12 jurors agreed.
Recently, the law in NSW has changed to allow ‘majority verdicts’ whereby – if not all jurors can agree – the Judge can direct that a verdict be returned if all except one juror agrees.
For example, a verdict of ‘guilty’ can now be returned if 11 jurors vote ‘guilty’ and one juror votes ‘not guilty’.
The procedure is as follows:
If all jurors cannot agree on a verdict a note can be sent to the Judge.
The Court will re-convene and the note will be read aloud.
The Judge will 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, the Judge can direct that the jury may return a ‘majority verdict’ (ie an 11 to 1 verdict).
If a ‘majority verdict’ cannot be reached a ‘hung jury’ will ultimately be declared; meaning that the Accused is neither ‘guilty’ or ‘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 Sydney Criminal Lawyers help me?
If you are facing a Committal Hearing or a District or Supreme Court trial, you should contact experienced criminal lawyers such as Sydney Criminal Lawyers to assist you.
Sydney Criminal Lawyers 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.
The videos below gives a basic guide for unrepresented defendants who are going to court for a criminal or traffic case.