Preparing for Trial - WA

In Western Australia, there are two superior courts. The next court in the hierarchy above the Magistrates Court is the District Court of Western Australia. The highest court in Western Australia is the Supreme Court.

The District Court handles serious criminal matters including serious sexual assaults, large-scale frauds, home burglaries, sale and supply of drugs and robberies.

The Supreme Court of Western Australia handles the most serious criminal matters including murder, manslaughter and large-scale drug-related activities.

Trials in the Superior Courts are more complex and formal than in the Magistrates or District Courts.

The prosecuting authorities in all Superior Court matters are the Office of the Director of Public Prosecutions (WA) (‘DPP’) or the Office of the Commonwealth Director of Public Prosecutions (‘CDPP’) depending on the jurisdiction of the charge.

• Initial appearances: all initial appearances occur in the Magistrates Court. These appearances are often administrative and focus on procedural matters such as setting dates, confirming legal representation, confirming disclosure, case management and allowing for negotiations with the prosecution.
• Disclosure Committal Hearing: Following any initial appearance, should you wish to enter a plea of not guilty and/or obtain the full police disclosure, your matter will be adjourned to a disclosure committal hearing. This adjournment is approximately 16 weeks.
• At a disclosure committal hearing in the Magistrates Court, the DPP or CDPP will review the file in accordance with their guidelines and consider whether to proceed with the charge. You or your defence lawyer as well as the DPP/CDPP will be provided with all the police disclosure relevant to your matter.
• Generally, there are approximately two to three disclosure committal hearings, with between four to six weeks between appearances, depending on the complexity of the charge and the amount of disclosure required to be served. After both parties have completed their reviews and any potential negotiations, the matter will be committed to the Superior Court.
• Trial Listing Hearings: If you enter a plea of not guilty, your matter will be committed to the Superior Court for a trial listing hearing. This hearing is not your trial date but on this date your matter will be listed for your trial by jury. This hearing helps the court manage the case, set trial dates, and address procedural matters.
• Disclosure: Both the prosecution and defence must exchange evidence in accordance with the legislation well in advance. Late disclosure can affect the trial timeline.
• Applications and Directions Hearings: Lawyers may file pre-trial applications which will be set down for a Directions hearing, such as to exclude evidence, challenge the admissibility of witness testimony, or raise legal points.

• Jury Trial: Most Superior Court trials are heard before a jury, except in rare cases where a judge-alone trial is requested and approved.
• Opening Statements: The prosecution and defence outline the case to the jury.
• Presentation of Evidence:
  • Prosecution presents its case first, including witness testimony, documents, and expert evidence.
  • Defence presents its case, including evidence and witness testimony, if applicable.
  • Cross-examination tests the credibility and reliability of witnesses.
• Closing Submissions: Both sides summarise the evidence and make final legal arguments.

• Jury Deliberation: The jury considers the evidence and decides on whether the prosecution have proven the charge beyond reasonable doubt.
• Verdict: The jury delivers its verdict in court either a guilty or not guilty. In some circumstances the jury are unable to reach a verdict. If so, they are considered to be hung and the matter returns to a trial listing hearing to be relisted for another trial by jury.
• Sentencing: If found guilty, the judge determines the appropriate sentence, which may involve imprisonment, fines, or other orders.

Having an experienced criminal lawyer is critical in the Superior Court due to the complexity and severity of cases. Lawyers can manage evidence, advise on legal strategies, and represent you effectively throughout the trial.

• Dress formally and professionally.
• Address the judge as “Your Honour” and speak only when permitted.
• Maintain respect and composure at all times, particularly before the jury.

• Acquittal: Charges are dismissed, or you are found not guilty.
• Conviction: You are found guilty and sentenced accordingly.
• Adjournment or Mistrial: Rarely, the trial may be adjourned or declared a mistrial due to procedural issues, juror issues, or new evidence.

A jury trial in Western Australia typically consists of at least 12 members of the community, who are randomly selected for jury duty. In some cases, there may be more than 12 members of the community depending on the length and complexity of the trial. Jurors come from a wide variety of backgrounds, including public service, private business, trades, and unemployed persons.

In most cases, a jury verdict must be unanimous, with all 12 jurors agreeing to the verdict for each count on an indictment. However, in certain circumstances, and depending on the complexity of the matter, a jury may be permitted to return a majority verdict of 10 out of 12 jurors after deliberating for a reasonable period (usually at least 3 hours), in accordance with section 114 of the Criminal Procedure Act 2004 (WA).

Before the trial begins, it is important for an accused to speak with their lawyer about the process of challenging jurors. Very limited information is provided to the accused and their legal team about each juror. Each juror is identified by a number, and challenges must be made in a very short timeframe, often only a few seconds between the juror being called and entering the jury box. Decisions are frequently based on first impressions, demeanour, or other brief observations.

In many cases, the accused will delegate their right to challenge a juror to their barrister during jury selection, allowing the barrister to take the lead. It is also essential for the accused, their solicitor, and barrister to discuss beforehand what characteristics may make jurors more or less suitable for the trial in question, ensuring a strategic approach to jury selection.

An accused has the right to decide whether or not to give evidence at their own trial as part of their defence. This decision can sometimes be difficult and is often crucial to the outcome of the case. Effective trial preparation should include a detailed discussion with the legal team about this choice. If there is any possibility that the accused will give evidence, they should participate in one or more proofing conferences. These conferences allow the accused to practice the process of giving evidence. While lawyers cannot coach the accused about what to say, they can practice asking questions, including cross-examining their client, and provide guidance on how to generally conduct themselves effectively in the witness box.

There are various advantages and risks associated with giving evidence. One key advantage is that it allows the jury to hear the accused’s defence directly, potentially making a strong impression if the accused presents themselves appropriately. A common risk, however, is that the prosecutor can cross-examine the accused, which may raise credibility issues. In some cases, giving evidence could also shift the jury’s focus from whether the prosecution has proved its case beyond reasonable doubt to whether the accused is believable. While judges instruct juries on how to make their decision, human nature means this risk can be hard to avoid.

Proper trial preparation should also include discussions about potential defence witnesses. This may involve witnesses who have seen events differently and who have not already been called by the prosecution. In some cases, it can include witnesses who can speak to the accused’s good character, as well as expert witnesses, such as forensic, IT, or medical specialists.

Most trials in the Western Australian courts (Magistrates Court, District Court, or Supreme Court, depending on the charge) generally start around 9:30 am or 10:00 am on working days. Morning tea breaks usually occur for 15–20 minutes between 11:00 am and 12:00 pm, and lunch breaks are typically around an hour from 1:00 pm. Afternoon sessions usually run from about 2:00 pm to 4:00 pm. While this may seem like relatively few sitting hours, there are good reasons for this schedule. Trials can be mentally demanding for jurors, and regular breaks help ensure they maintain focus on the evidence and issues that are crucial to determining guilt or innocence.

An accused should dress respectfully for court. In WA, men generally wear a collared shirt, pants and suit shoes while women are expected to wear formal business attire.

During the trial, the accused’s barrister will usually conduct most of the advocacy. The solicitor assists by managing documents, preparing exhibits, coordinating witnesses, and ensuring everything runs smoothly. The accused’s primary role is to listen carefully to all evidence, observe proceedings, and maintain respectful conduct. Jurors notice how an accused presents themselves, so it is important to remain calm and avoid inappropriate reactions, even when confronted with challenging evidence.

An accused may take notes during the trial, either to record important evidence or to note questions for their lawyers. For urgent matters, the accused can signal their solicitor to raise a question immediately, but this should be done sparingly to avoid distracting the jury. Less urgent questions can wait until the next break.

Courtroom etiquette is important in WA. When the judge enters or exits, everyone, including the accused, should stand. The judge may bow or nod, and everyone should acknowledge this respectfully. Similarly, the accused should stand when the jury enters or leaves the courtroom to show respect.

A jury trial in Western Australia (District Court or Supreme Court, depending on the charge) begins with empanelling the jury. A pool of potential jurors, usually around 50–60 people, is randomly selected. Each juror is assigned a number, and the judge’s associate draws numbers to form the jury. Both the prosecution and the defence have a limited number of challenges to exclude certain jurors. Ultimately, 12 jurors are selected, sometimes with one or two alternates for longer trials.

The judge typically provides initial directions to the jury, explaining their role, the importance of not conducting their own research, and avoiding media coverage about the case.

The prosecutor gives an opening address, outlining the evidence they expect to present and what they aim to prove. The accused’s barrister may also make a brief opening statement, highlighting areas of the prosecution’s case that are disputed.

The prosecution then calls their witnesses one at a time and tenders any relevant evidence, such as police statements, documents, photographs, videos, medical records, or expert reports through those witnesses. During examination-in-chief, only open-ended questions are allowed. After each witness, the accused’s barrister may cross-examine, asking questions to challenge the evidence.

At times, the jury may be asked to leave the courtroom while the judge decides legal issues about the admissibility of certain evidence. These are usually heard in the absence of the jury. Minor admissibility questions may occasionally be resolved in front of the jury if they are unlikely to be prejudicial.

Once the prosecution rests, the accused may present the defence case, which can include the accused giving evidence, though this is optional. Defence witnesses are examined-in-chief by the accused’s barrister, and the prosecution may then cross-examine each witness.

After all evidence is heard, the trial moves to closing addresses. The prosecutor summarises the case for a guilty verdict, emphasising the most important evidence. The accused’s barrister then summarises why the evidence supports a not guilty verdict.

During the trial, or even during jury deliberations, the jury can submit written questions to the judge for clarification.

The judge then gives legal directions to the jury. These explain how to conduct deliberations, the legal elements that must be proven by the prosecution, and may include a summary of key points from the prosecution and defence.

The jury retires to deliberate, which can take hours or days depending on the complexity of the case. Once they reach a verdict, they return to the courtroom to announce it through the foreperson.

• If the accused is acquitted, they are free to leave the court.
• If the accused is convicted, the judge decides whether bail should continue while the matter is listed for sentencing, usually several weeks later. The court may order pre-sentence reports to assist in determining an appropriate penalty. The jury’s role ends once the verdict is delivered; sentencing is conducted by the judge alone.