Preparing for Trial ACT

For contested criminal charges in the ACT that are sufficiently serious, instead of having a hearing in the ACT Magistrates Court, the charges will be committed to the ACT Supreme Court and then eventually heard at a trial before a judge-alone or with a judge presiding over a jury. These types of charges are known as indictable or strictly indictable charges.

When the matters are before the ACT Magistrates Court a defendant answers charges (also known as informations) brought under the name of the police officer in charge of the investigation (called the Informant). When matters are committed to the ACT Supreme Court the charges are then transferred to an Indictment with individual counts which were formally charges and brought under the name of the ACT Director of Public Prosecutions. The defendant then becomes referred to as the “accused”.

There are then a number of steps that must occur in the ACT Supreme Court before a matter is ready for trial, including an accused’s lawyer attending a number of Directions hearing, a mandatory mediation between the DPP and an accused (known as a Criminal Case Conference), an arraignment where a judge’s associate formally reads out the counts on the indictment with an accused entering pleas of not guilty or guilty to each, and in some cases a pre-trial hearing about the admissibility of evidence. In some other trials which involve child complainants, their evidence in examination-in-chief and cross-examination may be taken in a pre-trial examination at an earlier stage, and then the video of that process is played to a jury at a later trial.

Any offence that is a sexual offence (such as sexual intercourse without consent or an act of indecency) or offence in which someone dies (such as murder, manslaughter or culpable driving causing death) the trial must be before a jury who will decide guilt or innocence, with a judge only deciding questions or law or the admissibility of evidence. For any other offence before the ACT Supreme Court, a defendant or accused has the right to elect to be tried before a judge alone instead of a jury. Any offences brought under Commonwealth legislation must also be tried before a jury.

A jury trial consists of at least 12 members of the ACT community, who are randomly selected for jury duty. This can include people from a wide variety of professions including the public service, private businesses and unemployed persons. In most cases a jury verdict must be unanimous, with all 12 jurors agreeing to the same verdicts as they apply to each of the different counts on an indictment. In some cases, and depending on the complexity of the matter, where a jury has been deliberating for a reasonable period, but at least 6 hours, a jury may be permitted to return a majority verdict of 11 out of the 12 jurors (see section 38 Juries Act 1967 (ACT)).

It is important that before starting a trial, an accused speaks with their lawyers about the process of challenging jurors. There is very limited information given to an accused and their lawyers about each juror. Each juror is given a number and the accused or their lawyers have a short period of time to challenge a juror, which is between an associate calling a juror’s number and before that juror enters the jury box, and this might be no more than 10 seconds. There is little more than looks and feelings to base jury challenges on.

In many cases, an accused may agree to stand with their barrister for the process of deciding which jurors to challenge, leaving the main responsibility for their barrister but having input into the choice themselves for some challenges. It may also be important that an accused, their solicitor and barrister have a discussion before the trial starts about what, if any, sorts of general characteristics of jurors may be more or less appropriate for the type of trial they are dealing with.

An accused has the right to choose whether or not to give evidence at their own trial as part of the defence case. In some cases, the decision about whether or not to give evidence can be difficult and a crucial decision. Effectively preparing for trial should include a detailed conference with the legal team about this decision. If deciding there is at least a possibility that an accused will give evidence, they should participate in at least one or more proofing conferences, where an accused can practice the process of giving evidence. Their lawyers cannot tell the accused what to say but they can practice asking questions of their clients, including practicing cross-examining or challenging their evidence, and giving general principles about how to effectively conduct oneself in the witness box.

There can be a range of pros and cons in the decision, but most commonly the advantage of giving evidence is that it can give a jury an opportunity to hear a defence to a charge in clear terms from the accused directly and, if an accused conducts themselves in an appropriate way when giving evidence, it can give an opportunity for a jury to be impressed by their presentation generally. A common risk to choosing to give evidence is that it will give a prosecutor an opportunity to cross-examine an accused which could lead to serious credibility issues. In some matters, it may also risk turning a jury’s focus away from deciding whether or not the prosecutor has proved its case beyond reasonable doubt, to instead whether or not an accused is to be believed. This is not how a judge would direct a jury to conduct itself, but it can be human nature after all and hard to avoid.

A proper preparation for trial should also include an accused discussing with their lawyers potential witnesses that can be called in the defence case, including witnesses that may have seen things differently and who have not already been called by a prosecutor. In the right case this can include witnesses who can give evidence about an accused’s good character. It can also include expert witnesses such as forensics experts, IT experts or medical experts.

Most trials in the ACT Supreme Court will start at around 10:00am each working day, with a morning tea break for a round 15-20 minutes anytime between 11:00am and 12:00pm, and a lunch break of around an hour from 1:00pm. The afternoon sessions for trials usually start from 2:15pm and go until around 4:15pm. This might seem like a lot of breaks and a relatively limited number of sitting hours for the trial, but there are very good reasons for this arrangement. It can be incredibly taxing for jurors to pay careful attention to everything they see and hear during a trial and if they are not given enough breaks, with a set amount of sitting times, there is a risk they may lose focus on evidence or issues that are ultimately crucial to deciding the guilt or innocence of an accused.

An accused should dress with an appropriate level of respect for a trial in the ACT Supreme Court. For example, men should usually wear a suit and possibly a tie.

An accused’s barrister will do most of the advocacy for them at the trial. Their solicitor will do most of the work in assisting the barrister with taking notes, having documents ready to tender or show to a witness, and making sure witnesses are informed and ready on time. An accused should themselves generally focus on paying attention and listening and watching all evidence carefully during their trial. Juries can almost always see how an accused is holding themselves during a trial so it is very important an accused shows respect for the trial process. This means that it is crucial that an accused does not react in any inappropriate way to things that arise at trial, even if they have strong feelings about it.

An accused may also wish to take notes during the trial, whether to make a note of important evidence as it arises, or to make a note of questions they wish to raise with their lawyers. For time sensitive or crucial issues, an accused can raise their solicitor to ask the question in real time, although this should not be done too often because it may be distracting to a jury. For less urgent questions, an accused can wait until the next break in the trial to ask their lawyers.

When the Judge is entering or exiting the courtroom, everyone, including an accused, is required to stand up. Before the Judge is seated, he/she will bow. Everyone should also bow at this time. An accused can also show respect to a jury by standing whenever the jury enters or leaves the court room.

A jury trial in the ACT Supreme Court starts with what is called empaneling a jury. This may involve around 50-60 randomly selected people coming into the back of the courtroom. Each is given a number and the judge’s associate randomly selects numbers from a box. The process finalises after challenges by the accused’s lawyer or the prosecutor (each are given 8 challenges) and 12 jurors enter the juror box (sometimes with a few more extras for long trials).

The judge will then commonly give some basic initial directions or instructions to the jury about their role, including the importance of not doing any research themselves and avoiding any media reporting about the case.

The prosecutor will then give an opening about what evidence they anticipate the jury will hear and what they are seeking to prove. An accused’s barrister will also commonly give a brief opening which sets out the parts of the prosecution case that are in dispute.

The prosecutor will then call each of their relevant witnesses, one at a time, and tender through those witnesses any relevant material such as police interviews, documents, photos, medical records, videos or reports. When calling a witness in their case, a prosecutor is generally only permitted to ask open-ended questions in what is called examination-in-chief. An accused’s barrister is then given an opportunity to ask any appropriate questions, including closed questions in cross-examination, after each witness finishes examination-in-chief.

At various stages through the trial, a jury may be asked to leave the courtroom while the prosecutor or accused’s barrister makes an objection about whether some particular evidence should be permitted to be adduced before the jury. Legal issues of this nature are usually decided by the judge in the absence of the jury. Some quick and uncontroversial admissibility questions can be appropriately heard and decided in front of a jury if it is unlikely to be prejudicial.

At the end of the prosecution case, an accused may then call evidence in the defence case. This can include the accused personally giving evidence but does not have to. An accused’s barrister must ask defence witnesses open questions in examination-in-chief and then the prosecutor is given an opportunity to cross-examine each defence witness.

After all the completion of any defence case, the prosecutor is called upon to make a closing address to the jury, which will involve making submissions as to why the jury should return verdicts of guilty to the counts on the indictment. A prosecutor may draw out the important aspects of the evidence that has been raised at trial that they consider most persuasive. An accused’s barrister then follows with their closing address, in which they also would make submissions to the jury about why the evidence would favour verdicts of not guilty being returned.

At any stage during the trial, or during deliberations at the end of a trial, a jury is permitted to provide a note to the judge to ask questions about certain aspects of the trial.

After closing addresses, the judge will then give legal directions to the jury. This includes general directions about how a jury should conduct themselves in deliberations, but would also include specific details about what elements have to be proved by the prosecution in that particular trial, and in some cases a further summary of what the prosecutor and accused’s barrister have raised as important submissions.

The jury is then invited to retire to commence deliberations. This process can take hours or days, depending on the complexity of the matter. When the jury has finalised their deliberations they are brought back into the court room to deliver their verdicts, through their foreperson. If an accused is acquitted of all counts on the indictment and there are no other pending charges or sentences, they are permitted to leave the court as a free person.

If convicted of some or all of the counts on the indictment, the judge will decide whether or not they should be given bail or have bail continued, while the matter is listed for a later sentencing date, which is usually around 8 weeks later. In the meantime, the court will often order ACT Corrective Services to prepare a pre-sentence report for the later sentence hearing. A jury’s role is complete after the verdicts are returned. Any sentence hearing is conducted by the judge who presided over the jury trial. That judge decides the appropriate penalty and may need to make findings of fact about what the exact conduct that a jury’s guilty plea represents.