Defended Hearings - WA

A defended hearing (or trial) in Western Australia occurs when an accused pleads not guilty to the criminal charge that is against them.

The process of a hearing or trial in the summary jurisdiction, in the Magistrates Court of Western Australia, can be complex and largely impacted by the type of criminal charge/s against the accused, whether there are co-accused involved, or whether the charges are split across jurisdictions. Previous convictions may also impact proceedings and how certain evidence is introduced (i.e., propensity or tendency evidence).

When you are first charged with a criminal offence, you will be brought before the court. The purpose for these initial hearings is take a plea from the accused or their lawyers and to ensure that the matter is suitably progressing.

Once an accused pleads not guilty the matter will be set for trial. In the event that the  trial is expected to last less than one day, you will likely receive a trial date on the day you entered your plea. For matters anticipated to last longer than one day, your matter will likely be adjourned to a further mention, called trial allocation date (TAD). The TAD is a procedural hearing to have the matter listed for trial and to ventilate any pre-trial issues.

Upon entering a plea of not guilty, an order for disclosure is made. This will ensure that the disclosure is served on you before trial.

Once you are given a trial date you will have to attend court on the date and time requested. Your matter will most likely be heard in a courtroom designated as a call-over list.

The call-over list is essential to ensure that all parties, both prosecution and defence, are ready to proceed to trial. This means that civilian, police and expert witnesses are in attendance and ready to provide their evidence. Preference will be given to matters where all parties are ready to proceed.

Depending on the type of matter, the Magistrate in the call-over list may make case management directions. The reason for these directions is to ensure the smooth flow of the trial and to alleviate any impediments or obstacles that could arise.

Once your matter is ready to proceed for trial, your matter will be ‘farmed’ out to a trial court. This is the court where you will conduct your trial, and a Magistrate specifically allocated to hear the trial.

The beginning of the trial starts with both parties making a statement to the court. These statements are called ‘opening submissions. This will likely be the first time that the Magistrate will have any knowledge or understanding of the matter. It is important that the opening submission hits the keys tenants of your case.

For the prosecution, they must open their case in line with how they intend to prove the charge as committed. For example, if a defendant is charged with assault causing bodily harm, and the prosecution open their case that the bodily was sustained in a particular way, then the evidence adduced at trial must prove that the bodily harm actually occurred in the way in which the prosecution opened their case. This ensures that the trial is fair to the accused.

For the defence, this is a chance to point out to the Magistrate certain areas of the prosecution case that might be in issue. Whilst the prosecution must particularise certain aspects of their case, defence are under no obligation to highlight their defence case theory in opening submissions. The reason for this is because it is for the prosecution to prove the charge against the defendant, not for the defendant to prove they innocent.

It is the prosecutions’ role to adduce all evidence at trial to prove the charge against you. It is for this reason that the prosecution case is heard before the defence case.

In doing so, the prosecution will adduce certain evidence (i.e., witness testimony, expert evidence, medical reports etc) to prove the charge. Each charge is comprised of ‘elements’. If prosecution fail to prove even one of the elements of the charge, then the defendant must be acquitted.

Once the prosecution close their case, the defence will have a right of reply. The defence may elect to adduce evidence that would enliven a defence under WA law. Such defences could include, but are not limited to, self-defence, duress or mistake of fact.

Depending on the specific defence raised, or the way in which prosecution went about proving their case, the defendant may choose to give evidence personally as a witness. This will subject the defendant to cross-examination by the prosecutor.

The prosecution, and possibly the defence, will call witnesses to adduce evidence at trial. The prosecution will call their witnesses first, as they are required to open with their case.

When the prosecutor calls a witness, they will be asked questions by the prosecutor in what is called ‘examination in chief’. The questions they asked must be open ended questions. Closed questions, or questions that imply or suggest an answer, cannot be asked and can be objected to by the defence.

The aim for the prosecution at this point is to adduce evidence in trial to prove the elements of the charge against the defendant. For an example, in a case that involves identity, the prosecution witness may give evidence that confirms the defendants identify at a particular location and at a particular time. A witness may only be required to give evidence that assists in proving one of the elements, not necessarily all elements. If a witness can only prove one elements, then other witnesses will be called to provide further evidence to prove the other elements of the charge against the defendant.

Once the prosecution witness has finished the evidence in chief, defence will be entitled to ask questions. This is known as ‘cross-examination’.

In cross-examination, defence are entitled to ask specific and direct questions. The golden rule of cross-examination is to ask closed questions where the answer to the question is known. The aim is to elicit information which you can use to support the defence case. This could include, for example, information that discredits a witness, information to support the introduction of a defence or to identify information that shows issue with the prosecution case.

One major rule which generally must be followed when examining witnesses is the rule in Browne v Dunn. In simple terms, if the defence intend to rely on a defence of provocation for an  assault, and it is to be suggested that a certain witness witnessed events that support the defence of provocation being a live issue in trial, then the rule of Browne v Dunn states that those propositions must be put to that witness before that witness finishes giving evidence.

Once the prosecution and defence case are closed (that is, no more evidence will be given in trial), then both parties will have an opportunity to summarise their case. This is known as a ‘closing submission’.

A closing submission is not an opportunity to introduce new evidence. The evidence the court will rely on to make a decision is given during the witness examination stage of the trial.

The closing submissions provide an opportunity to condense the evidence given at trial and to highlight certain areas that the Magistrate ought to have regard to when deliberating the facts.

The prosecution will make closing submissions first. They will focus on the elements of the offence, the evidence which proves each element of that offence, why they say that element is proven beyond reasonable doubt and highlight consistency of the prosecution witnesses and matters of reliability (i.e., CCTV, medical reports and admissions).

The defence will then have an opportunity to respond. It is important that in the closing address, all facets of evidence are scrutinised and any areas of weakness in the prosecution case are highlighted. The aim is to cast doubt over the prosecution case and to support any theory relied upon by the defence. Any doubt with any element of the offence must result in an acquittal give that the prosecution has not carried their burden to the extent required under law.

Depending on the nature of the matter, the Magistrate will likely give their decision at the conclusion of the trial. However, if the matter is complex or requires further assessment and consideration of specific areas of law, the Magistrate may adjourn to consider their decision.

If you are successful at trial in a summary matter, and acquitted of all charges, you may be entitled to seek costs as a successful party. The scale of costs you can seek is located in the Legal Profession (Magistrates Court) (Criminal) Determination 2024. If you are not legally represented, you are limited in what you can seek costs for.

If you are convicted, you may be dealt with at the time of decision. However, sentencing may be adjourned to ensure time is allowed to gather reports that will assist the court in the appropriate sentence to impose.