Going to court

Contributed by RennieAnderson and current to 1 May 2016

This section explains what happens when a person is charged with a criminal offence and taken to court. The laws in this area are contained in both NT and Federal legislation. Whether a person is accused of breaking an NT or Commonwealth law, the court process is very similar. Sentencing outcomes may vary as NT law contains several mandatory sentencing provisions, particularly in the NT Sentencing Act and Misuse of Drugs Act.

The court process in civil proceedings is dealt with in other areas of this handbook, such as Debts and Contracts and consumer protection . This section focuses on criminal proceedings.

Many legal terms are used in this section.

The court process

Any adult charged with an offence goes before a court known as the Local Court. Less serious offences, such as shop lifting, common assault, minor drug offences and drink driving, are called summary offences and are handled entirely by the judge in the Local Court. More serious offences, such as armed robbery, rape and murder, are called indictable offences. They commence in the Local Court, but are then referred to the Supreme Court to be tried before a judge and jury. Some less serious indictable offences, like stealing and certain unlawful entries, are called minor indictable offences and can be dealt with in either the Local Court or in the Supreme Court.

An offence committed by a person aged 17 years and under is heard by the Youth Justice Court if that offence is not punishable by life imprisonment (see Young people and crime ). There are instances where the Youth Justice Court may decline to hear a matter and refer it to the Supreme Court for sentencing, but such instances are rare.

Summary offences

The most common criminal charges are called summary offences, and are heard in the Local Court.

A defendant should have legal advice before appearing in court. A defendant who is not legally represented should ask the judge to adjourn the matter to give them time to obtain legal advice.

The NT Legal Aid Commission provides a duty lawyer at Darwin, Katherine and Alice Springs and most other courts (for example, in Tennant Creek and Nhulunbuy). A duty lawyer usually gives advice and, if necessary, helps a client request an adjournment to apply for legal aid. It is important to arrive early at the court so there is time to find and talk to the duty lawyer.

Aboriginal Legal Aid Services in Darwin, Katherine, Tennant Creek and Alice Springs provide free advice and representation for Aboriginal people at courts held in many towns and communities around the NT (see Legal aid ).

Bringing a defendant to court

Before a person appears in court, the police go through a number of formal steps. These are principally contained in the Justices Act ( JA).

Notice to Appear

A person may, if it is alleged they have committed an offence, receive a Notice to appear in the Local Court. Such a Notice is issued by a Police officer under the PAA (s.133A). When the person appears in Court they then receive a Complaint or Information (charge reduced to writing).

Laying a complaint

The formal charge in the case of most summary offences is a complaint. Unless the Act that creates the offence states otherwise, a person who seeks to lay a complaint (the complainant) simply goes to a Local Court and informs the justice of the peace (JP) that an offence has been committed [JA s.49].

Most prosecutions for summary offences are brought by police officers in their own names. Prosecution is then pursued by a police prosecutor. A private citizen who lays a complaint must themselves pursue prosecution. Certain government departments, such as local councils, carry out their own prosecutions, providing their own lawyers for this purpose.

The police have considerable discretion when deciding whether to prosecute a complaint. Although it may appear that a person is guilty of an offence, the prosecutor, whose job it is to consider the available evidence, weighs up both the evidence and the public interest in a prosecution and may decide not to proceed with the charge for a number of reasons. For instance, a prosecutor may decide not to proceed due to:

• the age or illness of the offender
• the offender's willingness to give evidence against someone else
• the fact that the relevant law is unpopular, controversial or obsolete
• the fact that the breach of the law was only technical or trivial.

Issuing a summons

An alleged offender who has not been arrested will normally receive a summons to appear in a particular court at a time and on a date stated in the summons unless they have received a Notice to Appear. This is most likely to happen with minor offences and with certain criminal offences where the authorities feel it is better to report, rather than arrest, the offender.

A summons is usually served by a police officer or an officer or employee of a public authority, who either gives it personally to the person to whom it is directed, leaves it with someone else who appears to be aged 16 years or more at the person's last or most usual address, or sends it by certified mail to the person's last known abode or place of business [JA s.27A].

Issuing a warrant

Instead of a summons, a warrant may be issued, which allows police to arrest and take an offender to court. This option is usually exercised when the offence is so serious that it is feared the person might disappear should only a summons be issued, if the person's address is unknown, or when a summons has been disobeyed [JA s.58] (see Investigation and arrest ).

Bail

On occasion, following an arrest, police will decide to charge the alleged offender and then to ensure that person's attendance, bail that person to a Local Court (usually the nearest Local Court to the scene of the alleged offence) on a particular date. On rare occasions, following an arrest, the police may charge the alleged offender and refuse that person bail. If the police do this they the must then either take the person concerned directly to the nearest Local Court or if that is not possible due to distance or the time of day, alert the duty judge by telephone to the refusal of bail. If the person is taken to a Local Court, the person can apply for bail at the Court. If the duty judge is employed, the judge will hear the police and then the person refused bail on the question of whether bail should be granted and, if so, on what conditions. If police refuse you bail, this is a very good time to ask to call a lawyer to come and help you at the police station. All legal aid services have out of hours phone numbers that you can ask the police to ring on your behalf.

The Local Court

Darwin, Katherine and Alice Springs have full-time Local Courts. Other towns and communities in the NT are serviced by a part-time court. In Tennant Creek the court is staffed by a clerk on a full-time basis. In some communities the Local Court may sit only once each month.

Cases are conducted before a judge who sits at the bench at the front of the court. The police case is presented by a police prosecutor who sits at the bar table, a large table positioned in front of the judge's bench. The defendant's legal representative also sits at this table. A defendant sits just behind their lawyer.

If unrepresented, a defendant is, when addressing the court, asked to stand near a microphone positioned to one side of the bar table. At other times they may sit behind the bar table. Microphones are also on the bar table and the bench. All proceedings are tape-recorded.

In most instances courts are open to the public. However, public entry is refused for some Youth Court proceedings and while victims of certain sexual crimes give evidence.

A judge has the power to prohibit the publication of certain evidence and to prohibit, in certain limited circumstances, the publication of the name of any party in the proceedings or any witness.

The judge is assisted in the running of a court by court officers who have such duties as:

• shortly before court commences, calling names from the list of people who are waiting outside and due to appear;
• calling defendants into court;
• handing documents or objects to the judge (people should generally not approach the bench unless they are requested to);
• administering the oath or affirmation to witnesses or defendants giving evidence on oath.

Particulars

Defendants should be given enough particulars to adequately defend themselves. Some information, such as the date, time and place of the alleged offence, details of the offence and the section of the Act that creates the offence, is given on the summons. 'Further and better particulars', such as the conduct that police claim to be proof of the offence, may have to be asked for in writing, either by the defendant or the defendant's lawyer.

First appearance in court

Even if represented by a lawyer, a person who has been arrested and charged with a summary offence, irrespective of whether the person is in custody or on bail, must appear personally before the court when the matter is listed.

A person who is summonsed to appear before a Local Court need not appear personally if a lawyer is to appear on their behalf. If neither a person charged nor their lawyer attends court in answer to a summons, a warrant for the arrest of that person may be issued. The court is allowed to deal with some minor matters in the defendant's absence. However, this may prove disadvantageous to a defendant if a possible defence or relevant matters are not be brought to the court's attention as a consequence [JA ss.58, 62].

Entering a plea

When the defendant or their legal representative first appears in court, they are informed of the nature of the charge. At this stage the defendant need not enter a plea; that is, declare themselves guilty or not guilty of the alleged offence. No plea should be made without legal advice.

If a defendant admits committing an offence and pleads guilty to a charge, the matter can be disposed of summarily, that is straight away in that court. If the defendant disputes the facts as stated by the prosecution, a plea of guilty may be inappropriate.

If the defendant wishes to defend the charge and plead not guilty, the case is usually listed as a defended hearing and adjourned to another date because the court would not have time to hear the case and the prosecution would not be sufficiently prepared. The court may also set a case mention inquiry date or a contest mention date, or both, prior to the hearing date to ensure the case is being properly prepared for hearing.

Adjournments

When a defendant first appears in court, the case is often adjourned to give the defendant time to obtain legal advice. The juge has a general power to adjourn a case either before or during the hearing [JA s.65].

When a case is adjourned, it is listed to a specific date for a plea or mention, meaning that the judge will hear it on that date if the defendant pleads guilty. If a defendant pleads otherwise, the case is only mentioned to obtain a date for a full hearing.

A defendant who is not on bail doesn't have to attend court to have a case adjourned if a lawyer attends on their behalf. A defendant who is on bail may be further adjourned on bail to appear on the next court date, but must attend personally in accordance with the bail agreement. A defendant who is not already on bail - they were refused bail after being arrested or are appearing in answer to a summons - may be required to enter into a bail agreement before being allowed to leave the court (see Bail , this chapter).

A defendant who is in custody and is not granted bail is remanded in custody to appear on a later date, often the next court date and is brought back to court by the police or corrections officers.

Undefended hearings (guilty pleas)

If the defendant has entered a plea of guilty at either the first appearance or later, the judge first calls on the police prosecutor to outline the full facts of the case. The prosecutor then reads out the facts that police allege gave rise to the offence. These alleged facts are sometimes called the police precis. A defendant or their lawyer should check these facts before they are read. After the facts are read out, the defendant or their lawyer must tell the magistrate whether they agree with them. The prosecutor also informs the magistrate of any prior convictions recorded against the defendant and of any injury, loss or damage resulting from the offence. In certain cases the prosecution will also seek to tender a victim impact statement , a short two-page document, the name of which speaks for itself.

The magistrate calls on the defendant or the defendant's lawyer to present any facts in mitigation (lessening) of penalty. The defendant's lawyer can call any witnesses who can testify to the defendant's good character or explain the circumstances that led the defendant to commit the offence. The lawyer can also, with the prosecutor's consent, hand the magistrate written references as to the defendant's character. Such witnesses and those who provide written references are termed referees. The defendant's lawyer can also ask the defendant to give evidence, so they can personally give the reasons for the offence and any mitigating circumstances.

A Correctional Services officer, in appropriate cases, may be asked to prepare a pre-sentence report for the court. A pre-sentence report provides information about the offender's background. It is requested by the court to find out why the offender committed the crime or, in some cases, to help determine an appropriate sentence. If a pre-sentence report has been requested, the case is usually adjourned for four to six weeks to allow it to be prepared. Similarly, a Correctional Services Officer may be asked to prepare a supervision report, a home detention report, and/or a community service work report as the case may demand.

At the conclusion of the hearing, the lawyer for the defendant addresses the judge on what is the most appropriate penalty. The judge then makes a decision and imposes a penalty (see Sentencing ).

Defended hearings (not guilty pleas)

If the defendant has pleaded not guilty, the matter is listed as a defended hearing and a date set.

Where the charge or charges are to be defended, then a specific process commences in the Court to ensure all issues are properly looked at prior to the setting of a hearing date. These processes include a preliminary mention and a directions hearing date [s. 60AD and s.60AJ-AK JA]. The process is governed by practice rules put forward by the Court. The process requires the prosecution to provide a full brief of what they say is the evidence against the defendant in support of the charge or charges, as well as the defence to outline the issues they wish to take to hearing. The defence is required, prior to the hearing date, to serve a notice of what evidence they object to and the basis for objection [s.68AM JA].

There is also a process by which the defendant can obtain a sentencing indication. This is a process by which the defendant can request a judge to indicate what sentence the Court might impose, if the defendant were to plead guilty to the charge or charges. If the defendant decides at that point that they wish to plead guilty, then the Court can proceed to hear the plea and sentence the defendant [s.68AT JA].

On the set hearing day, the prosecutor may give a brief summary of the prosecution's case to the court. The prosecutor will name the witnesses to be called. The police officers and other witnesses are then called on, one by one, to give their evidence. All witnesses must remain outside the court room until they give evidence.

On first entering the witness box (a desk at one side of the court), a witness is required to take an oath or give an affirmation to tell the truth. The prosecutor then questions the witness, a process called the examination-in-chief. When the prosecutor has finished examining a witness, the defendant or their representative is entitled to ask the witness questions in cross-examination.

The judge decides whether questions asked by either side are permissible in terms of the rules of evidence for criminal court hearings.

Evidence

Evidence includes all the information given directly to the court by witnesses. Evidence must comply with particular rules and is the only sort of information to which the court may have regard.

Relevance

One of the rules of evidence states that evidence presented must be relevant to the issue being tried. For instance, when a person is charged with theft from a house, it would be a relevant fact that the person's fingerprints were found on the windowsill of the house, but it would not be considered relevant that the person often consumed too much alcohol or came from a family of thieves.

Hearsay

A witness is asked to tell the court only what they saw or heard, not what someone else told the witness had occurred (hearsay evidence). For example, a witness can say: 'I saw Jill push Jack down the hill' but cannot say 'I wasn't there at the time, but Tom Piperson told me that he saw Jill push Jack down the hill'. It is often difficult to determine whether a particular piece of evidence is hearsay, as hearsay is a complex area of law and there are exceptions to the general rule.

Opinion

Generally, the opinion of a witness is not admissible unless the witness is an expert in the field within which the opinion is given. A doctor may be able to give an opinion on whether a particular blow may have caused the death of a person, but a non-medical witness cannot. Lay (non-expert) witnesses are able to give evidence on matters for which the experience of everyday life is sufficient, such as the speed of a vehicle, weather, general identity and whether or not a person seemed drunk.

Character

Generally, the prosecution is not allowed to ask a witness a question that tends to show the defendant as a person of bad character or guilty of other offences. However, if the defendant or their lawyer tries to attack the character of a prosecution witness by referring to the bad conduct of that witness, the court may allow the defendant, if they give evidence, to be questioned about their own bad character or conduct.

A defendant is entitled to raise their good character as an issue at the trial and to have that evidence taken into account on the question of guilt or innocence. However, if they choose to do so, the prosecution can then call evidence that would tend to show the defendant to be of bad character.

A decision to attack the character of a prosecution witness or to raise the good character of a defendant needs careful consideration.

Confessions

An admission or confession of guilt made by a defendant is often given as evidence in court. Such evidence might be a conversation in which the defendant verbally confessed or a record of interview. If a confession is to be admissible in evidence, it must be made freely and voluntarily. A confession will not be admitted if it was induced by a threat, promise or untrue representation made by the prosecutor or some person in authority.

The defence can object to the admissibility of a record of interview on these grounds. It will then be up to the judge to decide whether to admit it.

Even if a judge concludes a confession to be voluntary, it may still be excluded if its admittance would be unfair to the defendant. Examples of such unfairness would be where a defendant whose English is poor admits to an offence without the assistance of an adequate interpreter, or where a person is held in custody for a lengthy period and persistently asked the same questions over and over. A judge can also exclude a confession on the grounds of public policy - the public interest in having offenders convicted is weighed against the public interest in discouraging police officers from engaging in unlawful conduct during the investigation of a crime.

No case to answer

When all the witnesses for the prosecution have been heard and the prosecution case has closed, the defendant can submit to the judge that there is no case to answer. In such a submission the defendant asks the judge to dismiss the prosecution's charge on the basis that the prosecution hasn't produced sufficient evidence to support each element of the charge. If the judge agrees, the charge is dismissed and the defendant is free to go. If the judge doesn't agree, the defendant must proceed to present their case.

The defence

A defendant can't be forced to give evidence. A defendant who decides to give evidence does so by going into the witness box, taking the oath or affirmation and answering any questions asked first by their own lawyer and then by the prosecutor in cross-examination. The defendant can also call witnesses able to give evidence relevant to the defence.

There are a number of different defences available to an accused. If appropriate, a defendant can present more than one defence, but should be careful not to prejudice a good defence by offering weaker or conflicting ones. Examples of common general defences are:

• Weaknesses in the prosecution's evidence: the prosecution, by means of eyewitnesses, identification parades, fingerprint evidence and handwriting evidence, may try to prove that the defendant committed the offence. A defence can attempt to point out weaknesses in the prosecution's evidence of identification.
• Alibi evidence: alibi evidence shows the defendant was not at the place where the offence was supposed to have been committed at the time it was supposed to be committed.
• Affected by drugs or alcohol: although to have been affected by alcohol or drugs is not, in general, a defence, it could be presented as one if it can be shown that, due to intoxication or drug use, the defendant didn't have the mental awareness or intention required by law for the commission of the offence. A defence made on such grounds is very complicated and should not be made without legal advice.
• Mental illness: a defence can be made on the grounds that the defendant was mentally ill at the time of the offence. A successful defence on such grounds will see the defendant detained in a mental hospital at the discretion of the Administrator, which means indefinitely. For this reason mental illness is rarely raised as a defence and only in the most serious of cases, such as murder.
• Self-defence: self-defence, defence of another person and defence of one's own or another's property against attack are legitimate defences, but a defendant can have used only as much force as was reasonably necessary in the circumstances.
• Necessity: necessity may be raised as a defence where the act of the defendant was necessary to avert serious danger and the action taken was in proportion to that danger. The defence of necessity is approached by courts with considerable caution.
• Duress: a defendant can raise the defence of duress when the threat of death or serious personal violence was so great that it overcame the defendant's resistance to carrying out the criminal act. The overpowering of the defendant's will must have occurred at the time the criminal act was committed.
• Victim consent: in cases of assault and sexual assault, the contention that the victim consented to the assault can be offered as a defence (see Sexual offences ).

Additional defences are available in the Youth Justice Court (see Young people and crime ).

Please also note the provisions of 'Part IIA - Mental Impairment and Unfitness to be tried' in the CCA. These provisions are complex and must only be considered with the aid of an experienced criminal lawyer.

No proof beyond reasonable doubt

In addition to putting forward a defence to the charge, a defendant may put the prosecution to the test of proving its case beyond reasonable doubt by revealing inconsistencies and shortcomings in its case. Where all the elements that make up the offence are, on the evidence presented, not proved beyond reasonable doubt, the defence is entitled to submit that the prosecution has not proved the case. If the submission is accepted, the defendant is entitled to an acquittal, which means they are found not guilty.

The prosecutor's reply

After the defence case has closed, the prosecutor may bring evidence to reply to any new unforeseen point raised in the defence case. This is referred to as evidence in rebuttal.

Addresses

After all the evidence is heard, the prosecutor and the defendant or their lawyer have the right to address the judge on why the defendant should or should not be found guilty.

The verdict

After hearing all the evidence and the addresses, the judge has the duty, without referring to any other person or body, to decide the matter. The judge may adjourn the case to consider a defendant's guilt, but usually the verdict is given straight away.

If there is any reasonable doubt that the defendant is guilty of the offence charged, the judge dismisses the charge and allows the defendant to go free. If satisfied of guilt beyond reasonable doubt, the judge finds the offence proved and considers what penalty to apply.

Costs

As a general rule, costs follow the event, which means that if the defendant is found not guilty, a court usually orders the prosecution to pay the defendant's legal costs. Similarly, if the prosecution succeeds, the defendant is usually ordered to pay the prosecutor's costs. However, the court does have a discretion and may not award costs or the full amount of costs in appropriate circumstances. For example, a court is not to award costs to a defendant if there was sufficient evidence to support a finding of guilt, but the defendant was entitled to an acquittal because of a minor procedural irregularity [JA s.77]. Note that costs are not awarded at the conclusion of Supreme Court trials. Costs will not generally be awarded to unrepresented defendants as they have incurred no legal expenses. Costs are strictly limited under the Justices Regulations.

Appeals

It is, in general, not possible to re-argue questions of fact on appeal. In most cases the appeal must be based on some question of law. A person who wishes to appeal against a judge's decision should seek legal advice as quickly as possible as time limits apply. Generally the limit is 28 days but you must check.

Appeal against an ex parte conviction

A person who has failed to attend court on the specified date, and has consequently been convicted in their absence, can apply to the court to have the conviction set aside and the matter reheard in their presence. Those seeking to pursue this course of action should complete an application form, available from the Local Court registry. On the application form, the appellant (person appealing) should outline the reasons for their absence and why a judge should rehear the case. The form must be lodged at the court within one month of receiving notice of the conviction. The case is then listed before a judge, who decides whether to set aside the conviction and have the matter reheard [JA s.63A]. In special circumstances applications made out of time may still be considered by a judge.

Justices appeal

A justices appeal is an appeal to a single judge of the Supreme Court and is the main form of appeal against a judge's decision [JA s.163]. A justices appeal is usually made against a conviction or the severity of a sentence. They often involve the arguing of legal principles so it is difficult for appellants who don't have legal training to conduct such appeals.

A justices appeal must be made within 28 days of the date of the conviction or sentence, although a judge of the Supreme Court may allow an extension of time in special circumstances.

Procedure

An appeal is started by filing two copies of the Notice of Appeal (available from the Local Court) with the clerk of the Local Court, together with the prescribed fee. One copy of the Notice of Appeal is returned to the appellant and must be served on the respondent, which is usually the police.

Once an appeal is lodged, the original penalty is suspended until the appeal is heard. This rule may be of particular interest to those convicted of driving offences where the judge has cancelled or suspended a driving licence. By lodging an appeal and entering into a bail agreement, the defendant is able to continue driving until an appeal is heard and decided.

Fines and costs need not be paid until the appeal has been heard.

Bail

A person in custody awaiting the outcome of the appeal can apply to a judge for bail. When a bail agreement has been entered into, a defendant who has been sentenced to imprisonment must be released unless they are in custody for some other reason (see Bail ).

The appeal hearing

An appellant need not attend the appeal hearing if represented by a lawyer. The matter is argued first by the appellant's lawyer, who puts to the judge legal propositions and previous cases (precedents) supporting the appellant's case. The respondent then argues their case. The respondent is usually a lawyer from the Office of the Director of Public Prosecutions (DPP). Again legal propositions and precedents are put to the judge, this time supporting the opposite view of the case.

It is up to the judge to decide which argument is correct. The appeal might be dismissed, with or without costs being awarded against the appellant, or it may be allowed. If it is allowed, the judge may:

• send the case back to the Local Court for a rehearing, normally before a different judge
• in the case of an appeal against conviction, quash or annul the conviction, as if it had never happened
• in the case of an appeal against sentence, fix whatever new penalty is deemed appropriate.

Indictable offences

Summary offences are generally the less serious offences that are heard and decided in a Local Court, usually by a single judge. More serious offences, called indictable offences, are generally heard before a judge and jury in the Supreme Court (see also Minor indictable offences , below).

Preliminary Hearings

When a person is charged with an indictable offence, such as murder, a judge conducts a preliminary examination, sometimes called a committal hearing, in which the prosecutor must persuade the judge that there is a sufficiently strong case against the defendant to put them on trial before a jury. A committal hearing is held to ensure that only a defendant against whom a reasonably strong case can be mounted is subjected to the stress and expense of a full-scale jury trial.

If the defendant is in custody, the hearing takes place as soon as possible after the arrest, depending on how long the prosecutor takes to gather all the evidence together. If the accused is on bail, the hearing may not take place until months after the arrest.

A preliminary examination hearing can be very short, with no witnesses being called. Procedures exist for what are called preliminary examination paper hearings or preliminary examination oral hearings, where the prosecution relies on the written statements of the witnesses.

The prosecution must provide the defendant or their lawyer with copies of all declarations well before the matter is to be heard so the defendant can decide whether to call the witnesses or not. No decision should be made without careful consideration and legal advice.

If no witness is needed for cross-examination, the declarations are simply handed up to the judge, who decides, on the material in the statement, if there is enough evidence to put the defendant on trial in the Supreme Court.

When witnesses are called at a preliminary examination hearing, it is called an preliminary examination oral hearing. Once the witnesses' written statements have been served on the defendant or their solicitor, the defence must notify the prosecutor of the witnesses required for cross-examination. Notification must be made in writing to the prosecution and agreed witnesses are either called to give their evidence or an application for leave is required to be argued in Court, prior to the listing of the preliminary hearing. At the beginning of the committal hearing the charge is formally read to the defendant. The defendant is not required to make a plea at this time. The police prosecutor calls the witnesses for the prosecution and evidence on oath is given from the witness box.

Witnesses can then be cross-examined by the defendant or their lawyer.

Decision to commit for trial

When the prosecution witnesses have been called, the judge must decide, having regard to all the evidence, if there is enough evidence to put the defendant on trial in the Supreme Court [JA s.109]. If the judge decides there is, the defence has the opportunity of calling evidence, either from the defendant or from other witnesses [JA ss.110]. However, evidence is rarely called by the defence at committal hearings because defendants usually don't want to disclose their case before the actual trial.

A defendant who has been committed for trial may either be kept in custody until the trial or released on bail (see Bail ).

If, after reading the declarations or hearing oral evidence, the judge is satisfied that there is a case against the defendant, the defendant may plead guilty at that point [JA s.134]. If a guilty plea is entered, the defendant is sent to the Supreme Court for sentencing. The case is listed before a single judge who then determines the penalty to be imposed upon the defendant [JA s.136] (see Sentencing ).

A guilty plea made at the earliest opportunity should be viewed favourably by a judge considering what penalty to impose. Offences punishable by life imprisonment, such as murder, are exceptions to the procedure outlined above. A defendant can't plead guilty to such an offence at a committal hearing; the case must go to the Supreme Court [JA s.134].

When committing a defendant for trial, the magistrate generally explains the law of alibi evidence to the defendant, including the fact that the defendant is required to give notice, within seven days of being committed for trial, of any alibi evidence intended to be relied on as a defence. The defendant must give particulars of the alibi and the name and address of any person proposed to be called in support of the alibi [CCA s.331].

Ex officio indictments

Even if no committal hearing has taken place or if, at a committal hearing, a judge has found there to be insufficient evidence to put a defendant on trial, the Attorney-General or DPP may, in exceptional cases, file an ex officio indictment, a special document called to make any person stand trial in the Supreme Court. It is also possible for the DPP and the defendant to agree to the filing of an ex officio indictment to hasten the matter getting before the Supreme Court. An ex officio indictment, agreed to by both sides, can be filed with Supreme Court before any committal proceedings. Defendants occasionally choose to agree to an early ex-officio indictment in order to minimise the expense of their cases to the public purse and thereby try to attract a lesser sentence from the Supreme Court.

Pre-trial procedure

A number of steps must be taken before a matter actually proceeds to trial.

Deciding the charge

The Crown prosecutor must first decide what the formal charge, called the indictment, will be. The same charge for which the defendant was committed can be used (see Preliminary Hearings , above), new charges may be added or an entirely different charge may be used instead. All indictments are filed in the name of the Attorney-General or DPP.

If the case against the defendant is weak or important evidence in the defendant's favour was revealed at the committal hearing, the defendant should, before the trial begins, consider asking the Office of the DPP not to proceed with prosecution. There is no special form for such an application. Requests should be made in writing to the Office of the DPP and should set out the reason why a defendant should not be required to stand trial. A defendant is notified of the result of the application before the trial date.

Alternatively, if a Crown prosecutor considers the case not strong enough, they will recommend to the DPP or Attorney General that no indictment, or further formal charge, be laid or that no prosecution take place on an existing information.

Preparing for the trial

A defendant who has been committed for trial before a jury in the Supreme Court may have to wait some time for the trial to begin.

The evidence of witnesses at a committal hearing is recorded and typed up in documents called depositions. Depositions are sent to the Crown prosecutor who considers the evidence and decides whether or not to recommend the case go to trial. A defendant can obtain copies of depositions from the clerk of the court.

A defendant is entitled to know if the prosecution intends to call at the Supreme Court trial witnesses who were not called at the committal hearing. A defendant is also entitled to know if the charges are to be changed.

If the Crown prosecutor intends to call a new witness, a copy of the statement made by the new witness must be sent to the defendant so the defence can prepare its case. In certain circumstances, the defendant may be permitted by the trial judge to examine new witnesses in a committal-like proceeding (a 'Basha inquiry') before the start of the trial.

The arraignment

Every person who is committed for trial or sentence is remanded, either in custody or on bail, to appear before the Supreme Court to be arraigned on the next 'arraignment day', at least 14 days later. On this day the lawyers for each side are asked whether they are ready for the case to proceed further; if they are ready, a date is set for a plea of guilty or a not guilty trial.

In the Supreme Court a defendant must normally attend the arraignment and inform the court whether they wish to plead guilty or not guilty. A defendant who pleads guilty may be sentenced on the day that is set for the plea, unless the judge orders a pre-sentence or psychiatric report, in which case the defendant is remanded, either in custody or on bail, while the report is prepared. In more serious and/or complicated matters, the judge might also briefly adjourn the case so that the parties can consider all the submissions which have been made in that case. A defendant who pleads not guilty is adjourned for trial.

The Supreme Court

The procedure in the Supreme Court is almost identical to that in the Local Court, and is governed by the Supreme Court Rules. The Supreme Court is presided over by a judge. A lawyer from the DPP appears as the Crown prosecutor. The proceedings are more formal, usually take more time to be heard, and generally are more expensive than proceedings in other courts.

The trial

In the Supreme Court the defendant is referred to as the accused. Trials in the Supreme Court are listed to begin on any given weekday at 10 am.

When the trial begins, the accused is seated in the dock, the charge is read aloud and the accused is asked to plead guilty or not guilty. The men and women from whom the jury will be selected are referred to as the jury panel and, at this time, are seated in court. If a plea of not guilty is entered, the names of 12 people are selected at random from a ballot box. These 12 people form the jury that hears the case. The prosecution or the defence may challenge or refuse up to six jurors without stated reason and more with compelling reason. If the charge is one punishable by life imprisonment, the number of jurors who can be challenged without stated reason increases to 12 and more with compelling reason. Names continue to be drawn by ballot until 12 jurors are accepted (see Jury service ).

Once the jury is empanelled or 'sworn in', the trial begins. The Crown prosecutor makes an opening statement to the jury and then calls the prosecution witnesses one by one. The defendant's lawyer may cross-examine each witness in turn after the prosecution's examination is finished.

When the prosecution's case has been presented, the defendant's lawyer may submit that the judge should direct the jury to acquit the defendant on the basis that there is no case to answer. If no submission is made, or this submission does not succeed, the defendant's lawyer can call evidence from the defendant and other witnesses. The defendant can either enter the witness box to give evidence on oath and be cross-examined or remain silent.

After all the evidence is given, both the Crown prosecutor and the defendant's lawyer address the jury. The judge then sums up the case for the jury and explains the law that applies. The jury then retires to consider its verdict. Once a verdict has been reached, the jury returns to the courtroom where the jury's foreman (can be either man or woman) announces the verdict, which at this stage must be unanimous. A majority verdict, where ten or more agree, is accepted after six hours of deliberation, except where the defendant is on trial for murder or treason or for a Commonwealth offence [Juries Act s.48].

Appeals

A person who has been convicted by a jury or has pleaded guilty to a crime and then been sentenced by a Supreme Court judge has a right of appeal to the Court of Criminal Appeal. The appeal must be made on one of the following grounds:

• against conviction, on any ground that only involves a question of law
• with the court's permission, against conviction, on any ground involving a question of fact or mixed law and fact or some other sufficient ground of appeal
• with the court's permission, against the sentence passed
• with the court's permission, on any other ground that appears to be sufficient.

The appellant is entitled to be present at the appeal unless it is based on a question of law only. In such a case, an appellant in custody can only appear with the court's permission.

The notice of appeal and the grounds upon which the appeal is to be made must be lodged with the Court of Criminal Appeal within 28 days of the date of the conviction or sentence. If an appeal is not lodged within that time, an application must be made to the court for an extension of time to appeal.

Appeal against conviction

Matters are not completely reheard. An appeal is decided on issues arising from the transcript of the evidence at the trial, but if the appellant has fresh evidence, it should be placed before the court in the form of affidavits from witnesses stating what they would say if called in a new trial.

The appellant must convince the court of one of the following:

• that the jury's verdict should be set aside because it is unreasonable or unable to be supported by the evidence;
• that there was a wrong decision on a question of law;
• that there was a miscarriage of justice on any grounds.

Even if the court finds in favour of the appellant on some point of law, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred.

Minor indictable offences

Special rules apply to certain indictable offences, enabling them to be dealt with summarily in the Local Court. These are minor indictable offences.

A defendant charged with a minor indictable offence can choose to have the matter dealt with in a Local Court or Supreme Court. An exception is made for a number of offences, such as stealing, criminal deception and receiving (stolen property) where the value of the property involved does not exceed $5000. These offences are automatically heard before the Local Court. A defendant charged with one of these offences cannot choose to have the matter heard in the Supreme Court. For other minor indictable offences, the consent of the defendant, the prosecutor and the judge is required before the Local Court has power to hear the case.

The decision about where to have a matter heard is an important one because a Local Court hearing is before a judge only, whereas a Supreme Court hearing is before a judge and a jury. In the Local Court, a judge has the duty to determine both fact and law, whereas a Supreme Court judge functions as the arbiter of law. In the Supreme Court it is the jury that ultimately decides the facts.

Offences that are punishable by imprisonment for longer than ten years can't be dealt with by a judge [JA ss.120, 121(a)]. However there are some exceptions, where offences punishable by not more than 14 years imprisonment may be heard by a judge. Dangerous acts charges and certain aggravated unlawful entries (of business not private premises) are an example.

The hearing

With regard to a minor indictable offence, a case proceeds as an ordinary committal hearing until the end of the prosecution case. If, at this point, the judge decides the case can properly be dealt with summarily, the defendant is asked to consent to a summary hearing. The judge must take into account the seriousness of the offence, the maximum penalty that can be imposed if the offence is proved and the limits of their sentencing powers.

If the defendant consents to a summary hearing, the case proceeds in the same manner as other summary offences [JA s.121A]. When considering whether to go before a judge or a judge and jury, a defendant should take the following factors into account:

• the chances of being acquitted by a jury may be better than the chances of being acquitted by a judge;
• the defence, being able to rely on the evidence given in the committal proceedings, may be better able to present its case before a jury;
• the penalties a judge can impose are lower (that is, a maximum of two years imprisonment for most offences and/or a fine of up to 250 penalty units) than those a judge can impose after a jury trial, although there are some exceptions.