Offences tried by Judge and Jury: Indictable Offences
Deciding the Charge
If a defendant is committed for trial and is released on bail, they may have to wait up to six months before the trial starts. If they are held in custody, there may be a wait of two to three months. The minimum period is 7 weeks.
The depositions are sent to the Crown, who arranges for a Crown Prosecutor to consider it and decide whether the case should go to trial, and if so, what the ‘indictment’ (the formal charge) should be. If the Crown Prosecutor thinks the case should go to trial, the Prosecutor may file an indictment for the charge on which the defendant was committed. Alternatively, they may add other charges or substitute an entirely different charge. This process is called ‘finding a bill’ (of indictment) against the defendant.
If the case is weak
If the Crown Prosecutor considers that the case is not sufficiently strong against the defendant, they will recommend (to the Director of Public Prosecutions) that no bill of indictment be found. The Director of Public Prosecutions will normally support this recommendation.
The defendant is entitled to know if the prosecution intends to call witnesses who were not called at the committal hearing, or if they intend to change the charges. When the Crown intends to call a new witness, they will send to the defendant a copy of the statement made by the witness, so the defendant can prepare a case.
Trial Before a Jury
The defendant will be bailed or remanded to the first day of the next sittings of the Supreme Court in Hobart, Launceston or Burnie. If the trial is to proceed, it will rarely, if ever, commence on that day, and a new date will be fixed for attendance.
The case will be listed for 10 a.m. on the day of the hearing. When the case is called on for hearing (not necessarily at 10 a.m.), the person charged (the accused) is placed in the dock, and the Crown Prosecutor presents an indictment (this is the written accusation made against the accused). The indictment is read out to the accused who is asked to plead. If the accused pleads ‘guilty’, there is no need for the jury, and the judge considers what sentence to give the accused. If the accused pleads ‘not guilty’, the jury is chosen and ‘empanelled’. A jury of 12 people is empanelled, out of about 50 people who are summoned to the court. Their names are chosen at random from a box, and both the accused and the prosecution have the right to refuse (‘challenge’) the juror. The prosecution can challenge without having to give a reason for rejecting the juror. The defence (where there is only one person accused) can only challenge six jurors without a reason. Where there is more than one accused, each accused has six challenges without having to give a reason. (A ‘reason’ for challenging might be that the potential juror is a neighbour or is otherwise known to the accused). The defence lawyer will consult with the accused before challenging.
After the jury has been empanelled, the trial commences. The Crown Prosecutor makes an opening statement to the jury, and then calls the prosecution witnesses one by one. The accused’s lawyer may cross-examine the witnesses. At the end of the prosecution case, if it is appropriate, the lawyer for the accused may submit that the judge should direct the jury to acquit on the basis that there is no case to answer. If this submission does not succeed the accused’s lawyer may call evidence both from the accused and from any other witnesses. The accused can go into the witness box to give evidence on oath and be cross-examined. Alternatively, the accused can remain silent.
After all the evidence is given, both the Crown Prosecutor and the accused’s lawyer address the jury. The judge then sums up the case for the jury, explains and rules upon any matters of law, and the jury retires to consider its verdict. The jury returns to the courtroom, and the foreperson gives the jury’s verdict. This verdict must be unanimous up until a jury has deliberated for a period of 2 hours. After that time a verdict of either guilty or not guilty can still be taken by a majority verdict of ten or more jurors, except for murder which requires 6 hours deliberation by a jury before a majority verdict is permitted.
After an accused has pleaded guilty to, or been found guilty of, an indictable offence, the judge hears evidence of the accused’s character and background and previous criminal convictions before passing sentence. A pre-sentence report may have been prepared by a probation officer. The accused will then be asked if there is anything they want to say. The accused’s lawyer may make submissions as to sentence, and if necessary may call character or other witnesses relevant to sentence. If desirable, the court will order a pre-sentence report, and/or a drug/alcohol dependency report before considering what sentence is to be imposed.
If a defendant pleads guilty to an indictable offence, (other than one that can be dealt with by the Magistrate’s Court) the plea must be endorsed on the complaint, and the person will be committed to the Supreme Court for sentence (Justices Act, s60(1)). Under some circumstances, a magistrate has the power to commit a person, convicted summarily, to the Supreme Court for sentence (s72B(2)).
Defendants charged with an indictable offence are required to give notice in advance if they are going to rely upon alibi evidence in defence. The defendant must include particulars of the alibi, and the name and address of any person proposed to be called in support of the alibi (Criminal Code, s368A).
Record of the Hearing
The evidence of the witnesses at the preliminary proceedings is recorded and typed up in documents known as ‘depositions’. A free copy of these depositions is available from the Crown for the accused to use at the trial.
Indictable Offences dealt with Summarily
Special rules apply to certain indictable offences which enable them to be dealt with summarily. They fall into two groups: those where the offence may be dealt with summarily without the accused’s consent, and those where the accused’s consent is required.
Indictable offences (such as stealing, killing of animals with intent to steal, false pretences and receiving) must be dealt with summarily without the defendant’s consent if the amount of money or value of the property involved does not exceed $5,000, though a magistrate can still decide that in special circumstances they should go before a jury. (Justices Act, s71).
Certain other indictable crimes may be dealt with summarily with the consent of the defendant. These include escape, harbouring offenders and the making of false declarations. If the accused does consent, the case will proceed as with other summary offences.
Special provisions apply to children who are dealt with under the Youth Justice Act or persons under the age of 18 who are appearing jointly with an adult offender (Youth Justice Act 1997 (Tas)).
In making the choice to have the magistrate decide the matter rather than to go before a judge and jury, the defendant should take into account the following factors:
- the chances of an acquittal may be higher before a jury than before a magistrate;
- the defence may be better able to present its case before a jury, being able to rely on the evidence given in the preliminary proceedings;
- if the accused is convicted by a magistrate, there may be a second chance through an appeal to the Supreme Court;
- the penalties a magistrate can impose are lower than those that a judge can impose after a jury trial.