Defended Hearings ACT

Criminal matters that are dealt with summarily in the ACT Magistrates Court and proceed to a defended hearing, following a not guilty plea(s), must be heard by a magistrate.

For strictly summary offences (with maximum penalties of 2 years imprisonment or less), the matter will generally be listed straight for a later defended hearing upon a plea of not guilty being entered. The police brief of evidence will then be served on the defendant within around 4-8 weeks after the plea of not guilty is entered.

For any other indictable offences that are being heard in the ACT Magistrates Court summarily, after a plea of not guilty is entered, the police brief of evidence will again be served on the defendant within around 4-8 weeks, and instead of securing a hearing date the matter will be listed for one or more pre-hearing mentions. For family violence matters (these are supposed to be streamlined) the pre-hearing mention will be 6 weeks (or 4 weeks if you are in custody) after the plea of not guilty is entered and for other criminal matters it will be around 10 weeks later (or 6 weeks if you are in custody).

If the plea(s) of not guilty is maintained at the pre-hearing mention the matter will then be listed for a later defended hearing.

A Pre-Hearing Mention is a vital stage in the process of any indictable offence that is being dealt with summarily. By this point, the prosecution should have served all evidence in the brief, and your lawyer will have had the opportunity to:

• Carefully review the material;
• Provide you with advice on prospects; and
• Identify whether the case is genuinely ready for a hearing.

At this mention, if the plea of not guilty is maintained your lawyer will confirm the matter is ready to proceed and provide the court with an estimate of the hearing’s likely length. Hearing estimates vary considerably depending on:

• The number of witnesses;
• The complexity of the evidence; and
• Whether special arrangements are required (such as remote witness facilities for complainants in family violence or sexual offence matters, or interpreters are required).

Once ready, the matter is listed for a defended hearing. There can be a wait of several months before a date is available. Shorter hearings are often listed sooner, while lengthier hearings may take longer to find available dates. Importantly, priority is always given to accused persons who are remanded in custody or have already had an earlier hearing date adjourned or not reached.

On the hearing date, all matters listed on that date are initially called at 9:30am. The presiding Magistrate will confirm:

• Readiness of the parties;
• The expected length of hearing; and
• Which Magistrate will be allocated to hear the case.

Once allocated, the parties are directed to the relevant courtroom, and a formal start time is set.

The hearing begins with the prosecutor’s opening. They will:

• Outline the charges and what elements of the offence must be proved:
• Identify the witnesses to be called; and
• Draw the court’s attention to any anticipated evidentiary or procedural issues.

In family violence and sexual offence matters, complainants frequently give their evidence from a remote witness room. This ensures they are not in the same room as the accused, though the defence still retains the full right to cross-examine.

After the prosecution’s opening, the defence may also make an opening statement. This allows your lawyer to:

• Clearly set out what is disputed;
• Identify weaknesses in the prosecution case; and
• Assist the Magistrate in focusing on the real issues in contention.

The prosecution will then begin calling witnesses, often starting with the complainant. Witnesses testify in evidence-in-chief (their account), after which your lawyer will have the opportunity to cross examine them. The purpose of cross-examination is to test credibility, reliability, consistency, and to put the defence case where required.

Once the prosecution has closed its case, the defence may call witnesses or the accused may give evidence, though this is not compulsory. The court then hears closing submissions from both sides before reserving or delivering judgment.

Throughout the hearing, either party may raise objections to questions asked or to evidence being introduced. Objections are usually made immediately, before the witness answers, and are based on established rules of evidence. For example, your lawyer may object if the prosecution asks a question that is leading, irrelevant, or if they attempt to introduce evidence that is otherwise inadmissible under other provisions of the Evidence Act 2011 (ACT). Similarly, the prosecution may object to defence questions they believe breach these rules. The Magistrate decides whether to uphold or dismiss each objection. Effective use of objections is an important safeguard to ensure that the evidence placed before the court is reliable, relevant, and fair, and that your rights as the accused are fully protected during the trial process.

Closing submissions are the final opportunity for each party to persuade the Magistrate why their case should prevail. The prosecution will address the court first, drawing together the evidence they say establishes each element of the offence beyond reasonable doubt. They will often point to consistencies between witnesses, the absence of alternative explanations, or the reliability of objective evidence such as CCTV, medical reports, or admissions.

The defence then has the opportunity to respond. This is where your lawyer will carefully analyse the weaknesses in the prosecution case. Highlighting inconsistencies, gaps, or credibility issues in the evidence. The defence will remind the court that the burden rests entirely on the prosecution, and that any reasonable doubt must result in a not guilty verdict. Where alternative explanations exist, or where the prosecution’s case rests on questionable testimony, your lawyer will emphasise those matters.

The purpose of closing submissions for a defendant is not only to persuade, but to give the Magistrate a clear roadmap for why the defence says a Magistrate cannot find you guilty.