Defended Hearings

If you enter a plea of not guilty to criminal charges before the Local Court, your matter will proceed to a defended hearing.

A defended hearing takes place after you plead not guilty to a charge or series of charges. Defended hearings are held in the Local Court and allow your solicitor to test the prosecution case. Your solicitor will do this by highlighting the flaws of the case against you by questioning the credibility and consistency of the evidence and prosecution witnesses. Alternatively, your solicitor may accept parts of the case against you and raise a defence which justifies your actions.

The level and type of preparation required will vary based on the type of offence which you have been charged with. Therefore, your solicitor will advise you of recommended programs that you should take-part in.

Your solicitor may request that you:

• Provide character references
• Complete the traffic offender program
• Receive counselling for unresolved drug and alcohol issues, and/or
• Participate in an anger management program.

You can expect your solicitor will thoroughly review the brief of evidence. This will allow your solicitor to identify the elements of the offence which may not be proven beyond a reasonable doubt due to a lack of supporting evidence. Your solicitor will also consider potential defences that may be available to you. However, the particulars of your solicitor’s preparation for a defended hearing will vary depending on the nature of the allegation.

In preparing the defence case, your solicitor may do the following:

• Interview potential defence witnesses and take a statement
• Request that you provide supporting documents (i.e. character references, support letters and/or letters of engagement with certain services [e.g. drug and alcohol counselling, anger management, etc.])
• Determine which prosecution witnesses are likely to provide evidence which may support the defence case
• Negotiate with Police to amend the ‘facts’, withdraw charges and/or change charges, and
• Issue subpoenas to call witnesses and/or obtain documents and CCTV recordings.

Generally speaking, a defended hearing will proceed in the following order:

• The Magistrate will call your matter and both the Prosecution and Defence will make an appearance. An appearance is where the representatives state their name and who they are appearing on behalf.
• The Prosecutor followed by the Defence will then put forward their opening statements. An opening statement is where a summary of the ‘facts’ will be provided as well as an outline of the issues involved in the hearing.
• Once the opening statements have concluded, the prosecution will open their case followed by the defence.
  • The Prosecution will tender evidence (including the alleged facts and your criminal record). They may then call witnesses to give evidence during the hearing. Once the prosecution has tendered all their material and called all witnesses available to them, the Prosecutor will close the case for the prosecution.
  • The defence will then open their case. During the defence case, your solicitor may also tender evidence (including subjective material). Your solicitor may also decide to call witnesses. As an accused, you have the right to remain silent. However, your solicitor may be of the opinion that having you as a witness may be beneficial to your case (this should have been discussed and agreed upon during the preparation for your hearing). Once the defence has tendered all their evidence and called all witnesses, your solicitor will close the case for the defence.
• After this, both the Prosecution and the Defence will make closing addresses. The closing address is a recap of the evidence tendered and contains arguments as to why the prosecution’s case lacks the ability to prove the offence beyond reasonable doubt. It is also a time where your solicitor may address the weaknesses in your case.
• Once closing statements are finalised, the Magistrate will reach a verdict.

If you are a witness, you will be expected to take an oath or affirmation prior to giving evidence. You will then be examined by the party who called you (i.e. if you are a defence witness, the defence solicitor will examine you). This is referred to as examination-in-chief and the evidence you provide is referred to as evidence-in-chief.

Once the examination-in-chief concludes, you will be cross-examined by the opposing representative. The cross-examiner will ask questions that challenge the evidence you provided in chief.

Once cross-examination is finalised, the party who called you as a witness may decide to re-examine you to clarify points raised during cross-examination.

Whenever the Magistrate is on the Bench, you should bow once you enter or exit the Courtroom. If the Magistrate is not on the Bench, you should take a seat and stand up once the Magistrate enters the Courtroom. Once the Magistrate bows, you are to also bow.

If your hearing has commenced, you are not to leave the Courtroom unless otherwise instructed. If your matter has not commenced, you should confirm with your solicitor if it is a suitable time to leave the Courtroom.

Once both the Prosecution and Defence have concluded their closing statements, the Magistrate will then determine the verdict. The Magistrate may:

• Find that you are not guilty of all charges.
• Find that you are guilty of some charges but not others.
• Find that you are guilty of all charges.

In reaching a verdict, the Magistrate will determine whether the legal burden was discharged (i.e. whether the Prosecution proved the elements of the offence beyond reasonable doubt).

If the prosecution is successful, the Magistrate will return a guilty verdict. If the prosecution is unsuccessful, the Magistrate will return a verdict of not guilty.

If you are found guilty, the Magistrate may take the following into account when sentencing you:

Objective Seriousness

The facts assist the Magistrate in determining the objective seriousness of your offending. Imagine a scale of seriousness created by all the conduct that may fall under the offence you are convicted of. Objective seriousness is where your conduct falls on that scale.

For example:

• Charge: Mid-range PCA (i.e. drink driving)

Being breath tested after being pulled over for disorderly driving is more objectively serious than if you were simply breath tested at a breath testing station.

• Charge: Assault occasioning actual bodily harm

Punching someone in the face multiple times where the person suffers from a busted lip is more objectively serious than if you pushed the person who then suffered from a busted lip.

The more objectively serious your offending, the more likely that the Magistrate will impose a harsher sentence.

Criminal/Traffic Record

The extensiveness of your criminal/traffic record and whether you have been convicted of the same or similar offence may influence the Magistrate’s decision. This would give the Magistrate an idea of your risk of re-offending and the truthfulness of any remorse you may express over your conduct.

Your personal circumstances

Your personal circumstances include factors which may have contributed to your offending or the impairment of your judgement at the time of committing the offence. These circumstances can include (where relevant):

• Your age and socioeconomic status.
• Any adverse situations in your upbringing (e.g. child abuse, substance abuse, etc.).
• Current adverse situations that may have put you in the wrong mental space when committing the offence.
• Whether you have any dependents to care for.
• If you are suffering or have suffered a mental illness or any other condition which may have impaired your judgement while committing the offence.

Your character

Material may be tendered to the Court which outlines your good character and upstanding reputation in the community. Generally speaking, this mostly assists first-time offenders and offenders with a low rate of re-offending.

Intervention programs or rehabilitation/treatment

This includes whether you have completed or are about to complete an intervention program or rehabilitation (e.g. traffic offenders’ program, anger management program, drug and alcohol counselling, etc.). It is important that you prove your participation or completion of the program/treatment to the court as it may indicate the following:

• Your willingness and determination to address the issues that led or contributed to your offending, AND
• Your recognition and understanding of the seriousness of your conduct and that you no longer pose a risk of re-offending.

Sentencing Assessment Report

A Sentencing Assessment Report assesses your suitability for the following:

• Supervision by Community Corrections
• Community service work, AND
• Home detention.

Q: I was found guilty and convicted but I think I am innocent, can I appeal?

A: If you have been convicted of an offence in the Local Court, you can appeal to the District Court to have your conviction overturned. This appeal is known as a Conviction Appeal and you have 28 days to file this appeal from the date of conviction.

The sentence that was imposed is too harsh, can I appeal this sentence?

If you have been convicted of an offence and subsequently sentenced in the Local Court, you can appeal the severity of your sentence to the District Court. This appeal is known as a Severity Appeal and you have 28 days to file this appeal from the date of sentence.