Preparing for Trial

A trial takes place after you plead not guilty to a charge or series of charges listed on an Indictment. Trials are held in the District and Supreme Court. If you go to trial, your legal representatives (generally a solicitor and counsel) will test the case against you. Your lawyers will do this by highlighting the flaws of the case by questioning the credibility and consistency of the evidence and prosecution witnesses.

Alternatively, your lawyers may accept parts of the case against you and raise a defence which justifies your actions.

An Indictment is a formal document that is filed by the Prosecution to commence a ‘trial on indictment’. All offences (except for summary offences) may be tried on Indictment. In other words, an Indictment is required if your matter is to be dealt with in the District or Supreme Court.

If you wish to be prepared for Court, your primary role is to assist your legal team. You can do this by providing your solicitor with a list of potential defence witnesses. These witnesses are not required to have been at the scene at the time of the allegations, rather, they can be witnesses who speak of your character.

You should also provide your lawyer with relevant information that may assist raising a defence. You may wish to provide your lawyer with medical documents regarding your mental health. Alternatively, you may wish to provide your legal representatives with contextual information which may assist in understanding what took place in the hours approaching the alleged offence.

It is also recommended that you attend all conferences and appointments as requested by your legal team. If you cannot attend, it is important that you notify your solicitor as soon as possible.

Finally, in preparation for your trial, you should consider whether you will take the stand. That is, whether you will testify in Court and be a defence witness.

Generally speaking, a trial will proceed in the following order:

• You will appear in the short matters courtroom where you will be allocated a Judge. Once you have been allocated a Judge, your trial will commence. It is not uncommon to experience delay and have your matter adjourned to the following day.
• Once you are in the allocated courtroom, you will be docked. It is standard practice for a person who is standing trial to be seated in the dock. The dock is a gated section which is usually opposite to where the jury will be seated or in the centre of the courtroom behind the lawyers.
• Once the relevant parties (i.e. Judge, Prosecutor and Defence team) are in Court, you will be arraigned. That is, you will have the allegation read out to you. After each allegation, you will be asked how you plead, guilty or not guilty.
• Presuming you plead not guilty to all or a number of charges, a jury will be empanelled. Potential jurors will be brought into the courtroom. Your legal team as well as the Prosecutor will select twelve individuals to serve as jurors in your trial. Occasionally a juror will be ‘challenged’ and this means that they will be excluded from serving as a juror in your matter.
• Once the jury has been empanelled, the Judge will address the Court and then opening statements will be made by the Prosecution and then by the defence. 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. The defence case is opened once the prosecution case is closed. This part of the trial will be the longest and you can expect it to proceed as follows:
  • The Prosecution will tender evidence and may call witnesses to give evidence during the trial. At this stage, your legal team may cross examine the witnesses. Once the prosecution has tendered all their material and called all witnesses available to them the Prosecutor will then close the prosecution’s case.
  • The defence will then open their case. During the defence case, your legal team may also tender evidence to weaken the prosecution’s case. The evidence that may be tendered includes phone records, subpoenaed CCTV, images and so on. Your legal team may also decide to call witnesses. As an accused, you have the right to remain silent and you are not required, by law, to give evidence during your trial. However, your legal team may be of the opinion that having you as a witness may assist your case. However, 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, counsel will then close the defence case.

• 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 case against you lacks the ability to prove the elements of the offence beyond reasonable doubt. It is also a time where counsel may address and justify the weaknesses in your case.
• Once closing statements are finalised, the Judge will read to the jury a set of directions (instructions). The jurors will then leave the courtroom and deliberate. During deliberation, jurors will discuss and attempt to reach a unanimous decision as to whether you are guilty or not guilty. If the jurors have any question or have reached a verdict, they will provide the Court Officer with a note. They will then be brought back into the courtroom and to either have their question answered or to deliver the 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 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 issues raised during cross-examination.

When the Judge is entering or exiting the courtroom, you are required to stand up. Before the Judge is seated, he/she will bow. You are required to also bow.

When members of the jury enter or exit the courtroom, you should stand until they are all seated or until they have exited the courtroom. Once they are seated or have exited, you may resume your seat.

Once both the Prosecution and Defence have concluded their closing statements, the jury will commence deliberation. During this time, the jury will attempt to reach a unanimous decision. The jury may return with any of the following verdicts:

• Not guilty of all charges
• Guilty of some charges but not others
• Guilty of all charges.

Alternatively, the jury may return and state that they are unable to reach a unanimous verdict. In this case, the Judge will give the ‘black direction’. A black direction is where the Judge will inform the jury that history shows that jurors are able to reach a unanimous verdict if they work together.

If the jury returns and they are still unable to reach a unanimous verdict, the Judge may issue a ‘majority direction’. A majority direction is where the Judge states that a unanimous verdict is no longer required and that the jury may return a verdict if 11 jurors are in agreement. If the jury returns and are still unable to reach an agreement, they will be discharged as you have a hung jury and a retrial will be ordered.

If you are found guilty of any or all the charges, the Judge will then adjourn the matter for sentencing.

If you have been convicted of an offence in the District or Supreme Court, you do not have an automatic right of appeal to the Court of Criminal Appeals to have your conviction overturned. This appeal is known as a Conviction Appeal and you have 28 days to lodge a Notice of Intention to Appeal from the date of conviction. For this appeal, you are required to show that you have grounds for an appeal.

If you have been convicted of an offence and subsequently sentenced in the District or Supreme Court, you do not have an automatic right of appeal to the Court of Criminal Appeals to have your sentence varied. This appeal is known as a Severity Appeal and you have 28 days to lodge a Notice of Intention to Appeal from the date of sentence.