Court process and procedure

Contributed by Bill de Mars and Judith Fordham and current to 1 September 2005

This section sets out the process involved when a person is charged with a criminal offence. The procedure for most criminal offences commences in the Magistrates Court.

Depending on whether the offence is a simple (summary) one (that is, most common criminal charges), an indictable offence (more serious charges such as serious drug offences, serious assaults, murder etc) or an either way offence (an indictable offence that can nevertheless be dealt with by the lower court) the offence will either remain and be handled in the Magistrates Court, or will be transferred (committed) to one of the superior courts (the District or Supreme Court).

Whether an offence is a simple or indictable one will depend on how the offence is described in the legislation which proscribes it (that is, whether it is described as an offence (simple) or a crime or misdemeanor (indictable). The majority of criminal offences are proscribed in the WA Criminal Code, but as noted above there are many other relevant acts such as the Misuse of Drugs Act 1981 (WA) and the Road Traffic Act 1974 (WA) that also create criminal offences.

The procedure for dealing with simple offences is set out in the Criminal Procedure Act 2004 (WA). The recent introduction of this Act, together with the Magistrates Court Act 2004 (WA) and the Criminal Appeals Act 2004 (WA) has led to a number of changes in the way criminal offences in the lower courts are dealt with.

Criminal procedure in the District and Supreme Courts is also based in the Criminal Code and the Criminal Procedure Act.

COURT PROCESSES FOR SIMPLE OFFENCES

Simple offences are heard in the Magistrates Court (formerly known as the Court of Petty Sessions). This section outlines what happens when people are charged with these offences.

Starting criminal proceedings

THE PROSECUTION NOTICE

The formal charge in the case of simple offences is called a Prosecution Notice (previously known as a complaint). In most cases, police officers issue the formal Prosecution Notice or charge, and a police prosecutor appears in court to conduct the case. Sometimes lawyers from the Office of the Director of Public Prosecutions conduct the case instead.

Certain government departments and local authorities also employ their own legal officers to conduct prosecutions, for example parking, fisheries or animal cruelty prosecutions.

Since May 2005 criminal proceedings can no longer be brought by private citizens (s.20 Criminal Procedure Act).

A complaint for a simple offence has to be made within 12 months of the day the offence is said to have been committed (s.21).

Every Prosecution Notice must contain:

• a statement of the specific offence with which the accused person is charged;
• enough information (particulars) so that the accused person knows what he or she is said to have done to commit the offence (Schedule 1, Division 1, Criminal Procedure Act).

As well as a Prosecution Notice being given to the accused person, a Court Hearing Notice may be given to them. This does not mean a person must appear in court: they can plead guilty or not guilty in writing and give reasons for what they did if they plead guilty. If they do not respond to the Notice the charge may be dealt with in their absence (s.20 Criminal Procedure Act).

Alternatively they may be summonsed (see below).

SUMMONS

Another way of requiring a person to attend court is by summons attached to the Prosecution Notice (s.32 Criminal Procedure Act).

A summons is a legal document handed or delivered to an accused person which directs a person to attend a certain court at a place and on a particular day and time.

If a person fails to appear in court or answer the summons in writing, a Magistrate may issue a warrant for that person’s arrest or deal with the offence in the person’s absence.

The difference between receiving a Court Hearing Notice and a Summons is significant under the new legislation: attendance in court in response to a Court Hearing Notice is optional for an accused, while personal attendance in response to a Summons will always be required.

ARREST

For the more serious court proceedings, the accused person must appear in court. Arrest is one method of getting the accused to appear in court. If a person has been arrested by the police and charged with a simple offence, he or she will have to appear in court normally that same day or the next. This applies even if the accused has a lawyer to represent him or her at the first hearing.

BAIL (see also ARREST, INTERROGATION AND BAIL)

A person who has been arrested will usually be fingerprinted, photographed, have a cheek swab taken for DNA testing (Criminal Investigation (Identifying People) Act 2002 (WA) and then held in the police “lockup” until court on the next day when a magistrate decides whether to release them on bail, or the police will release them on bail after charging them.

People who are not given bail or cannot find a person to be a surety for them will be kept in custody, that is, in a prison on a remand basis. They are given access to Legal Aid lawyers who visit regularly, as well as other welfare and medical services. They may well appear in court by video-link to save an uncomfortable drive into court and having to stay in the detention area at the court building.

First appearance in court – remands

JUSTICES OR MAGISTRATE

Two or more Justices of the Peace may deal with simple offences and, in certain circumstances, some more serious offences. This occurs more often in country areas where there is no resident or visiting Magistrate available. Sometimes even one JP can act alone (Magistrates Court Regulations 2005). In sizeable towns and cities Magistrates will normally deal with these offences.

When the accused person first appears in court the charge is read out. Before they have to choose whether to plead guilty or not, they will be given a Statement of Material Facts. This is a description of what the police say the accused person did, and, if a plea of guilty is made, it will be read out to the magistrate to tell him or her about the circumstances of the offence.

If a person was interviewed by police and a video recording was made of this, the accused person or their lawyer is also entitled to have a copy given to them (s.570A Criminal Code) within 14 days of being charged or as soon as practicable if this is not possible.

The accused person does not have to say whether or not he or she is guilty at this stage. The person may want time to get legal advice, although if possible they should do this before this first appearance.

If the accused person wants to defend the charge, they will plead not guilty and the case will be remanded to another date for hearing. On the hearing date the accused person must have his or her witnesses present at court, if necessary by using witness summonses.

LEGAL REPRESENTATION

If the accused person is not legally represented at the first appearance in court or needs time to decide what to do or to gather documents, he or she should ask the court to remand (adjourn) the matter for 2 or 3 weeks, after which the accused person will be expected to appear and plead guilty or not guilty.

Accused persons who cannot afford a private lawyer may wish to represent themselves or ask for help from the Legal Aid WA duty lawyer service. There is a duty lawyer available at many Magistrates Courts in the Perth metropolitan area for pleas of guilty or remands, but not for trials (see LEGAL ASSISTANCE ).

Ex-parte hearings

If an accused person fails to appear in court for a minor traffic or criminal charge, the magistrate may decide to hear the case in the absence of the accused person (s.55 Criminal Procedure Act). If the accused person is convicted, a fine may be imposed and the accused person will be notified of the result. However, if the magistrate thinks that the offence calls for some other penalty, such as imprisonment or a Community Based Order (see PENALTIES AND PRISONERS) he or she may issue a summons or arrest warrant to require the convicted person to come to court to be sentenced.

A person who has been convicted of an offence in his or her absence may apply within 21 days of the conviction to have it ‘set aside’ (s.71). In order to have the conviction set aside, the convicted person must offer a satisfactory explanation for his or her failure to appear in court. If the decision is set aside, the matter will still have to be dealt with by the court.

Procedure for defended hearings

If the accused person pleads guilty to the charges, the court will then decide what the penalty should be. See ‘Plea in mitigation’ on page __for information about the process where a person pleads guilty. If, however, the accused person does not admit that he or she committed the offence and pleads _not guilty, the case will be adjourned to a later date for a defended hearing.

With simple criminal offences the prosecution supplies the accused or his/her lawyer with copies of prosecution witness statements and any statements or videotaped interviews made by the accused before the hearing. The accused has to give the prosecution details of any expert or alibi evidence they intend to use at trial. Sometimes, the accused person will plead guilty, or the police withdraw the charge if they are given extra information by the accused person’s lawyer which casts a new light on the evidence.

The accused person may use a lawyer, but does not have to. If the accused person is going to use a lawyer, they should contact them as soon as possible. It is very rare for legal aid to be given for trials in the Magistrates Court: see further LEGAL ASSISTANCE.

If the accused person has any witnesses who can tell the court things which support the accused person’s version of events, they may have to be summonsed. This means that when the hearing date is known, a document (summons) is drawn up, filed (registered) with the court office, and served (usually delivered by registered post or in person) on the witness, ordering the witness to attend court. The witness can be ordered to bring any relevant documents they have.

What happens at the hearing

THE PROSECUTION CASE

On the day of the hearing the court will first call on the prosecutor to present the case for the prosecution. The prosecutor may make an opening statement. He or she then asks the prosecution witnesses to give their evidence one by one.

The magistrate is called “Your Worship”, or “Your Honour” but certainly not “Your Majesty”.

Each witness enters the witness box near the magistrate and takes an oath on a bible or makes an affirmation (promise) to tell the truth. The other witnesses usually have to stay outside the court room until it is their turn to give evidence.

The prosecutor then asks the witness questions (called examination-in-chief), and when the prosecutor is finished the accused person or his/her lawyer is entitled to ask questions in cross-examination. The prosecutor may then reexamine (ask more questions of) the witness.

If the prosecution has not provided enough evidence by the time they have called all their witnesses to prove each part of the charge beyond a reasonable doubt, then the accused person can make a no case submission. This means that the accused person can say to the magistrate, “Please throw this charge out now: I do not need to have any witnesses give evidence as the charge cannot be proved.”

COMMON RULES OF EVIDENCE

There are many rules about what evidence can and cannot be used in a criminal trial (that is, is admissible in court) and the type of questions which can be asked of a witness. They are designed to be fair to both sides. Some important rules are:

1. Relevance: Only evidence that is considered relevant to a fact in issue is admissible. Something which is so remote from the subject matter of the trial as to be irrelevant will not be admitted. In addition, generally speaking evidence that relates to the bad character of an accused person or evidence related to a separate alleged offence is also inadmissible.

2. The person calling a witness (the prosecutor, or accused person or their lawyer) cannot ask “leading” questions, that is, questions which suggest the answer. An example is: “Then you saw the accused person hitting Mr Smith, didn’t you?”

3. An accused person who is cross-examining can ask leading questions but not make speeches. They will get a chance to give their version if they choose to give evidence. Not “Your Worship that’s a load of rubbish, the truth is …”, but “Mr Witness, what really happened was XYZ wasn’t it?”

4. The rule against hearsay evidence: A witness will not generally be permitted to give evidence of what they have heard someone else say, in support of the truth of the statement made to them. Rather, they must give evidence of their own first-hand experience of a relevant event. There are many exceptions to this rule, including where what has been said constitutes an admission of a criminal offence, or where the relevant statement is relied upon not for its truth but rather for the fact that the relevant words were uttered.

5. Expert Evidence: It is generally not permissible for a witness to give evidence of their opinion about a certain matter. However, where a witness can be shown to have sufficient expertise in a recognised area of knowledge, they may be permitted to give expert opinion evidence. The relevant factual basis on which they base their opinion must be explained.

6. If an accused person is planning on calling a witness later who will contradict what a prosecution witness is saying, then the prosecution witness should be asked about what that defence witness will say.

THE DEFENCE CASE

If the magistrate does not agree that there is no case to answer, or a no case submission is not made, he or she will ask the accused person if they want to call any evidence. The accused person does not have to.

The accused person may give evidence by going into the witness box, taking the oath or affirmation, and answering any questions asked first by their lawyer (or just giving their side of the story without a lawyer), and then by the prosecutor in cross-examination, and finally by their lawyer by way of re-examination. The accused person cannot, however, be made to give evidence if they do not wish to. The accused person may also call witnesses who can give evidence in their defence.

The accused person is also entitled to call evidence to show that they are of good character (that is, either to say they are of good character or ask other people to say that, or both). However, if the accused person calls evidence of their good character, then the prosecutor is entitled to introduce evidence of bad character (such as evidence of any prior convictions).

The magistrate may also ask some questions, and if this happens both sides get to ask more questions to clear up anything the magistrate raised.

EVIDENCE IN REPLY

When the defence case has closed, the prosecution might ask the magistrate if they can call evidence in reply to any new point raised in the defence case which they could not have foreseen. This does not happen very often.

THE VERDICT

After all the evidence is heard, both the prosecutor and the accused person (or the accused person’s lawyer) then have the right to tell the magistrate about the reasons why, on the evidence presented in court, the accused person should or should not be found guilty of the charge.

After hearing all the evidence and these speeches, the magistrate will make a decision. In some cases the magistrate will adjourn the case to think about the verdict; on other occasions the verdict will be given straight away. If the magistrate has a reasonable doubt as to the accused person’s guilt he or she will dismiss the charge. If, however, the magistrate is satisfied beyond reasonable doubt that the accused person is guilty of the offence he or she will find the offence proved and will then decide what penalty should be imposed.

Costs

If the charge is dismissed the accused person is entitled to apply for costs under the Official Prosecutions (Defendants’ Costs) Act 1973 (WA). Costs can include legal fees and witness expenses. If, on the other hand, the accused person is convicted, the prosecution may apply for its costs to be paid by the accused person.

Penalties

Once a person has been found guilty, or has pleaded guilty without defending the charge, the magistrate has to decide a penalty. The Court must not accept a plea of guilty unless either, the accused is represented by a lawyer, or if unrepresented, the Court is satisfied the accused understands the plea and its consequences (s.129 Criminal Procedure Act).

Where there has been a trial, there will usually be no further comment about the facts, but if the convicted person has a criminal record it will be produced. However, where the convicted person has pleaded guilty, the prosecutor will usually give the court a summary of the facts.

The convicted person or his or her lawyer is then asked, first, if they admit the facts as alleged and, secondly, if they admit their previous convictions alleged.

If any of the facts or prior convictions are disputed, the argument may be resolved on the spot, or the case may be put off to another day to allow evidence to be called to resolve the dispute (not the guilt or otherwise of the accused person, but rather the basis upon which he or she will be sentenced).

PLEA IN MITIGATION

Next, the convicted person or his or her lawyer tells the magistrate why the penalty should be as modest as possible. This is known as a plea in mitigation. The convicted person will be sentenced on the basis of the most favourable (reasonable) interpretation of the police facts as admitted or found during the hearing.

The convicted person is entitled to the benefit of any mitigating factors such as his or her personal history, work record, previous good character, financial commitments, early plea of guilty, medical condition at the time of the offence and at the time of the sentencing, behaviour since the offence and any remorse shown for the offence (Sentencing Act 1995 (WA) s.8).

The prosecution may bring any aggravating factors to the magistrate’s attention, such as lack of remorse, pre-meditation and so on. The factors will also be taken into account (Sentencing Act s.7).

PRE-SENTENCE REPORTS

The court can order a pre-sentence report on an offender if it thinks it would be of assistance. These are written reports prepared by Community Corrections Officers (people employed by the Department of Justice to assess and supervise offenders in the community) and usually take about one month to obtain. The court can also ask for an oral pre-sentence report later the same day (if an officer is available). Similarly, a psychiatric or psychological report can be ordered. The offender or their lawyer can also organise for a psychiatric or psychological report to be prepared privately (that is, by someone outside the community corrections system).

Penalties are dealt with under PENALTIES AND PRISONERS.

Appeals from the Magistrates Court

Appeals from decisions of magistrates or Justices of the Peace in the Magistrates Courts are governed by the Criminal Appeals Act 2004 (WA). The provisions apply to appeals against conviction and/or sentence.

A person who is dissatisfied with a decision of a magistrate or a Justice of the Peace must obtain the leave (permission) of the Supreme Court to appeal against that decision (s.9 Criminal Appeals Act). The application for leave to appeal must be lodged at the Supreme Court within 28 days of the decision (s.10). It is possible to obtain an extension of time within which to lodge the application, but only where the applicant can satisfactorily explain the delay in lodging the application and satisfy the Court that the appeal has merit. Delay in getting legal aid is not considered a good enough reason.

The application for leave to appeal must contain the grounds of (reasons for) appeal and be supported by an affidavit (a document sworn on oath in front of a JP or Commissioner for Declarations) about the background to the case and to the reasons for appealing. If available, the transcript (typed up copy of what was said) of proceedings in the Magistrates Court should be attached to the affidavit.

There is a Transcripts Clerk in the Magistrates Court offices who can organise a copy of the transcript. There is a per page fee for this.

Except in the case of a prison sentence, the grant of leave to appeal effects a stay on execution of the sentence (s.11 Criminal Appeals Act). For example, fines do not have to be paid and any driver’s licence disqualification does not take effect unless and until the appeal is decided against the appellant.

If the applicant is in prison, an application for bail may be made. The applicant has to give the prosecution notice (that is, warn them) of the bail application.

Appeals from a Magistrate are usually heard by a single judge of the Supreme Court, although the judge may order that the appeal be dealt with by the Court of Appeal (s.13 Criminal Appeals Act). The Court may dismiss the appeal, allow it, vary the original decision or any sentence imposed, or order the case be returned to the Magistrates Court to be dealt with again (s.14).

COSTS

The general rule is that an unsuccessful appellant will have to pay the respondent’s (other side’s) costs of the appeal.

If the appeal is successful the accused person can apply for costs (that is, reimbursement of some of their expenses) under the Official Prosecutions (Accuseds Costs) Act 1973 (WA).

FURTHER APPEALS

An unsuccessful appellant has 21 days in which to lodge a further appeal to the Court of Appeal. Again, leave of the Court of Appeal is required in order to proceed with such further appeal (ss.16, 17 Criminal Appeals Act).

COURT PROCEEDINGS FOR INDICTABLE OFFENCES

Very serious indictable offences such as murder and armed robbery are heard before a Judge and Jury in the Supreme Court. Other indictable offences such as stealing, receiving, burglary, aggravated assaults and causing death by dangerous driving are heard before a Judge and Jury of the District Court.

It is also possible to have indictable offences dealt with by a Judge alone if the court agrees. If the prosecution applies for a trial by Judge alone, it will not happen unless the accused agrees. This might happen, for example, if there is a fear that publicity might affect a jury or where the case is so complex or lengthy that the court decides it should be heard by a Judge alone (s.118 Criminal Procedure Act).

Prosecutions of indictable offences generally have to make their way through the Magistrates Court before being transferred to the higher court. Under the Criminal Procedure Act (s.83) it is, however, possible to start a prosecution for an indictable offence in a superior court without going through the Magistrates Court first.

There is generally no time limit in commencing a prosecution for an indictable offence (Criminal Procedure Act s.83).

“Either way” offences

Some indictable offences, called either way offences, can be heard by a Magistrates Court. If the words ‘summary conviction penalty’ appear after the statement of the offence in the legislation setting out the offence, this usually means that the offence is an either way one. The summary conviction penalty will always be lower than if the charge is heard, and proven, in the superior court.

Since 2004 there is a presumption that such offences will be heard summarily (that is, by a Magistrate), unless the prosecution or accused apply for them to be heard in a superior court before a judge and jury and the magistrate agrees (s.5 Criminal Code). An accused must be given the opportunity to make such application before he or she enters a plea to the offence.

Fast track plea of guilty

If the accused person wishes to plead guilty to an offence which can only be dealt with on indictment then the accused person may plead guilty on the fast track. This will result in a significant discount upon sentencing. If an accused person enters a fast track plea he or she goes directly to the District Court or the Supreme Court (as the case may be) for sentence.

Committal

If the accused person does not plead guilty then the case is put off until a committal mention in the Magistrates Court in approximately 6 weeks time. Before this the accused person (or his or her legal representative) has to be given statements of the prosecution witnesses, and any statement or videotaped interview given by the accused. On the committal date the prosecution’s witness statements (depositions, or what the witnesses are expected to say at the trial) will be handed to the magistrate by the prosecution and become part of the court file. These statements are normally signed by the witnesses.

Upon committal (or transfer) to the District or Supreme Court it is usual practice for the magistrate to require a surety for the accused person’s bail (that is, someone who will pay a certain amount of money if the accused person does not come to court as required) if that has not happened earlier.

The Magistrates Court will give the accused a date to appear in the District or Supreme Court. This is called being committed for trial but this first date is not a trial date.

The judicial officer in the District or Supreme Courts is a judge who is addressed as “Your Honour”.

Preparation for the trial

After being committed to the District or Supreme Court for trial an accused person usually has to wait some time before the trial date is set. Prior to the trial there will be a pleas day and at least one status conference.

The depositions from the Magistrates Court are sent to the Director of Public Prosecutions (DPP), where a state prosecutor considers the evidence and decides whether to recommend that the case should go to trial, and if so, what the formal charge or charges should be. These charges are listed in a document which is called an indictment.

Application for withdrawal of prosecution (nolle prosequi)

If the state prosecutor thinks the case is not strong enough against the accused person to require him or her to stand trial, he or she will make a recommendation to the DPP that the case should not go ahead.

Where the case against the accused person is weak, or where there is important evidence in the accused person’s favour, the accused person may ask the DPP not to go ahead with the prosecution. There is no special form for this application. It can be made in a letter to the DPP setting out the reasons why the accused person should not be required to stand trial. The accused person will be told of the result of the application before the trial starts.

The prosecution and defence must disclose evidence to each other in a similar way to that for summary offences. The prosecution supplies the accused or his/her lawyer with copies of prosecution witness statements and any statements or videotaped interview made by the accused before the hearing. The accused has to give the prosecution details of any expert or alibi evidence they intend to use at trial. This obligation is a continuing one, so if new evidence comes to light it must also be disclosed (ss.95-97 Criminal Procedure Act ).

Pleas day

The first court date for indictable charges which go to the District or Supreme Courts is a pleas day. Before this, the DPP will have sent the indictment to the court. On this date, the accused person is asked to say whether they are guilty or not. If they say they are not guilty, the next court appearance is a status conference.

Status conference

There may be more than one status conference before a listing for trial is obtained, though every effort is made by the court to give a trial date at this conference. The trial date will usually be some time in the following six months. At the status conference(s) the accused person’s lawyer and the prosecutor have to answer various questions about the progress of the case, designed to see if the case is ready to go to trial and to save time at the trial itself.

The Evidence Act 1906 (WA) allows the evidence of vulnerable witnesses, including child complainants in sexual offence matters, to have their evidence pre-recorded on video. This is an issue which is dealt with at the status conference.

Trial dates are set at the last status conference. Any defence witnesses should be subpoenaed to trial by the defence. This means a document like a summons (see above) is produced and sent to the witness to force them to attend on the first day of the trial and to keep on attending until they are excused. The DPP is responsible for notifying prosecution witnesses of the trial dates and issuing subpoenas if necessary.

Trial of indictable offences before a jury (Division 6, Criminal Procedure Act)

At the start of the trial the accused is placed in the dock (a special place in the front of the court) with a court security officer nearby. He or she is asked to plead guilty or not guilty. If the accused pleads guilty, there is no need for the jury and the Judge decides the appropriate sentence.

The jury

If the accused pleads not guilty, the jury of 12 people is empanelled (chosen) out of a much larger number of people who are summonsed to the court. They are each given a number and their numbers are chosen at random from a box. Their identities remain secret. The accused and the prosecution each have the right to challenge up to five jurors without having to give a reason. If there is more than one accused charged with the same offence and put on trial together, each of those accused can challenge six times without reason. If a juror is challenged he or she cannot sit on that case. Other jurors may be challenged ‘for cause’ (giving reasons for the objection).

The only information available to the defence about potential jurors is the address and occupation. The prosecution also knows whether they have a significant criminal record or not.

Sometimes more than 12 jurors are chosen, especially in trials which are likely to last a long time. The “spares” are there in case of illness or other problems with any of the 12.

After the jury has been empanelled the trial commences. The state prosecutor makes an opening statement to the jury and then calls the prosecution witnesses one by one. The accused also has the right to make an opening address either immediately after the prosecutor’s opening address or, if the accused intends presenting evidence, after the close of the prosecution case.

Calling of witnesses

Each witness enters the witness box near the judge and takes an oath on a bible or an affirmation (promise) to tell the truth. The first witness is usually the alleged victim or complainant. The other witnesses usually have to stay outside the court room until it is their turn to give evidence. The accused can stay in court for the entire trial. There are some exceptions where the two lawyers agree a witness can stay in court. One common example is in the case of expert witnesses such as doctors.

The prosecutor then asks the witness questions and when the prosecutor is finished the accused person or his/her lawyer is entitled to ask questions in cross-examination. The prosecutor may then re-examine (ask more questions of) the witness.

Special witnesses, including complainants in child sexual offences, sometimes give their evidence from outside the courtroom via closed circuit television or in a position where they cannot see the accused person (s.106N Evidence Act (WA)). Such evidence, particularly in the case of children, can also be pre-recorded for subsequent presentation during a trial by way of playing of the video. In addition, in 2005 legislation was introduced permitting a visual recording of an interview with a child (conducted by appropriately trained police officers) concerning allegations of physical or sexual abuse made in accordance with prescribed requirements to be used as the child’s evidence at trial (ss. 106HA and 106HB of the Evidence Act).

At the end of the prosecution case the accused or the accused’s lawyer may ask the Judge to direct the jury to acquit the accused (find them not guilty) on the basis that there is no case to answer, (that is, not enough evidence to convict).

If this request does not succeed, the accused’s lawyer may call evidence, both from the accused and from any other witnesses, in the same way as the prosecution. If the accused elects to give evidence he or she can go into the witness box, take an oath or affirmation and give evidence, including being subject to cross-examination. The accused person is under no compulsion to give evidence.

Procedure after evidence is given

After all the evidence is given, both the state prosecutor and the accused or the accused’s lawyer address the jury (that is, make a speech about why the jury should convict or acquit as the case may be). The accused has the right to address last.

The Judge then sums up the case for the jury. The Judge is responsible for the proper conduct

of the trial, and throughout the trial he or she may be required to make decisions on matters of procedure and questions of evidence. In the summing up the Judge must direct the jury on the law which applies to the case. He or she must define the legal parts of any charge and give appropriate instructions on the onus of proof and various other legal issues.

The jury’s responsibility is to consider the facts of the case and decide whether or not any charge has been proved beyond reasonable doubt, bearing in mind the Judge’s directions on the law. The jury are the sole judges of the facts.

If the jury reaches a verdict, it returns to the court room and the foreman or forewoman announces the verdict. No time limit is placed on the jury’s deliberations. If the jury returns a verdict within three hours of retiring, the verdict must be unanimous. After three hours, the judge can decide that the verdict may be by a majority of ten or more jurors, except in the case of unlawful killing and Commonwealth offences which have to be unanimous. The above rules apply regardless of whether the verdict is guilty or not guilty.

If the jury is unable to reach a verdict then the jury (a ‘hung jury’) is discharged and the accused person may have to have another trial. The DPP decides whether this will happen.

Sentencing

After the accused has pleaded guilty or has been found guilty of an indictable offence, the Judge is given a report on the background and previous convictions of the accused. A pre-sentence report may also be prepared by a community corrections officer (see further above). The accused will be asked if there is anything that he or she wants to say, and his or her lawyer may address the Judge on the accused’s character, personal circumstances and aspects of the case which are the most favourable to the accused. The Judge then passes sentence.

Appeals on indictable offences

A person who has been convicted by a jury, or has pleaded guilty and been sentenced by a Supreme Court or District Court Judge, can apply to the Court of Appeal for leave to appeal conviction, sentence or a refusal to make an order as a result of conviction. The Court is made up of three judges.

MANNER OF APPEAL

The notice of appeal must be lodged with the Court of Appeal within 21 days of the date of conviction or sentence. If an appeal is not lodged within 21 days an application must be made to the Court of Appeal for an extension of time to appeal. The grounds of appeal which will be relied on must be lodged with the court.

APPEAL AGAINST CONVICTION

The Court of Appeal decides the appeal on the basis of the same evidence which was before the trial court, subject to very limited circumstances in which the appellant may rely upon fresh evidence. The appellant must persuade the Court of Criminal Appeal that either:

• the jury’s verdict should be set aside as unreasonable or unable to be supported by the evidence;
• there was a wrong direction on a question of law; or
• there was a miscarriage of justice.

Even if the court finds in favour of the appellant on one of these grounds, it may still dismiss the appeal if it finds that no substantial miscarriage of justice has occurred.

APPEALS AGAINST SENTENCE

The Court of Appeal will not interfere with a sentence unless that sentence is, in the view of the Court, manifestly excessive or the Judge erred in some matter of sentencing principle, such as by taking into account something which he or she should not have, or by leaving out of account something which he or she should have considered. The Court of Criminal Appeal may increase a sentence at the hearing of an appeal by the accused.

APPEALS BY THE PROSECUTION

The prosecution can appeal on limited grounds, including against sentence, and against acquittal in the case of a trial by judge alone.

COSTS

Fees and costs are not awarded in relation to an appeal to the Court of Appeal (s.35 Criminal Appeals Act).