How are criminal proceedings brought?

Except for “minor offences” and “infringement offences”, criminal proceedings are usually brought by the “informant” (often the Police) filing a charge or charges in the District Court on a form called an “information”.

What are “summary proceedings” and “indictable proceedings”?

Summary proceedings usually relate to less serious offences and any defended hearing is heard by a Judge alone.   Indictable proceedings usually involve more serious crime and generally proceed to trial with a Judge and jury.

Although the most serious offences can only be commenced as indictable proceedings, the informant often has a choice as to whether to commence the prosecution as a summary proceeding or as an indictable proceeding.  If the informant commences the prosecution as a summary proceeding then a defendant may elect trial by jury for virtually all offences that have a maximum penalty of more than 3 months’ imprisonment.  If a defendant elects trial by jury then the prosecution proceeds as an indictable proceeding.

How does a defendant obtain bail?

For some offences the Police may grant bail on conditions after charging the defendant at the police station and release the defendant to attend Court on a particular day.  In more serious cases the defendant is taken to Court where it is necessary to apply to the Court for bail.

If bail is opposed by the informant then a Judge will make a decision as to whether the defendant ought to be released on bail and, if so, may impose bail conditions on the defendant.  Bail conditions can include requiring the defendant to reside at a particular address, to report to a police station between certain hours on specified days, to remain at a residential address between certain hours, not to associate with witnesses and/or other defendants.  A defendant can be arrested for breaching bail conditions and this can result in the Court refusing to grant bail again. 

If the Court refuses to grant bail then a defendant is often kept in custody until at least the prosecution has been determined.

What information can a defendant obtain about the prosecution evidence?

What is a status hearing?

If a defendant pleads not guilty to a charge commenced as a summary proceeding then the prosecution is usually adjourned to a “status hearing”. This is an informal hearing heard by a Judge prior to a defended hearing.  At a status hearing the Judge may be prepared to give an indication as to the likely sentence that would be imposed if the defendant pleads guilty.  The prosecution may also be prepared to consider a guilty plea or pleas to a lesser charge or charges.  If no resolution can be reached then the defendant is usually remanded to another date for a defended hearing where witnesses are called and a Judge will make a decision.

What happens at a jury trial?

At the commencement of a jury trial the Court Registrar reads out the charge or charges to the defendant, now known as “the accused”.  If the accused pleads not guilty to one or more charges then a jury of 12 persons is selected to try the case.  Each accused is entitled to challenge up to 6 jurors “without cause” as part of the jury selection process. 

Once the jury is selected and has chosen a “foreman” then the Judge will usually make some introductory remarks following which the Crown prosecutor will make an opening statement to the jury outlining the case against the accused.  Counsel for the accused may also make a brief opening statement.

The trial proceeds by the Crown calling its witnesses and counsel for the accused has the opportunity to cross-examine each witness.  It is common for the evidence of one or more witnesses to be read to the jury by the Court Registrar if counsel for the accused does not require the witness to give evidence in person.  Usually this is because the evidence of that witness is not in dispute.

Once the Crown has called all its witnesses then the accused has to make an “election” as to whether to give evidence and/or call a witness or witnesses in support of the defence case.  There is no obligation on an accused person to give evidence or to call other witnesses.  If the accused elects to give evidence and/or call witnesses then the accused and any witnesses can be cross-examined by the Crown prosecutor.

Once the evidence is complete then the Crown prosecutor will make a closing address to the jury, followed by counsel for the accused and finally a summing up by the trial Judge.  The jury will then retire to consider its verdicts.  The jury will indicate once it has reached its verdicts and these are read out in Court in the presence of the accused.

If the verdicts are not guilty then the accused will usually be free to leave.  If there is one or more guilty verdicts then the Judge will usually remand the accused to another date for sentencing.

What happens at sentencing?

For an indictable proceeding the sentencing Judge receives written submissions from both counsel for the Crown and the accused (now known as “the prisoner”) as to the appropriate sentence.  The Judge is also likely to receive at least a pre-sentence report from a probation officer following an interview with the prisoner (and possibly others associated with the prisoner) which contains a recommendation as to the appropriate sentence.  If there is a victim of the offending then the Judge is also likely to receive a “victim impact statement” which describes the effect that the offending has had on the victim.  The Judge will take these and other matters into account before verbally advising the prisoner of the penalty imposed and the reasons for it.