Preparation for the Trial
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.
Page last updated 25/07/2019