HEARINGS/TRIALS Flashcards
Hand up brief, plea brief
The use of a hand-up brief in a committal proceeding has largely eliminated the need for oral evidence. Instead, written statements are taken from witnesses unless the parties request that a witness gives oral evidence. A hand-up brief contains the date of the committal mention hearing, information relating to the importance of obtaining legal representation, a copy of the charge sheet, copies of documents the prosecution intends to produce as evidence, copies of witness statements, interview transcripts, photographs and a list of exhibits. It also informs the accused of future hearing dates and their purposes. The accused is entitled to the hand-up brief at least 42 days before the committal mention hearing unless the court states otherwise or the accused consents to different arrangements.
Alternatively, the prosecution may provide a plea brief instead of a hand-up brief where the accused consents and indicates their intention to plead guilty.
Charge and summons
Police file a charge with the courts once they have sufficient evidence that a person has committed an offence. For summary offences an accused is not usually arrested and so the charge is served by summons. A summons directs a person to attend at the Magistrates’ Court to answer the allegations in the charge. If the accused has been arrested, then the charge is given following arrest or when the accused is bailed or remanded. If the accused fails to appear once summoned or bailed, then an arrest warrant is issued.
Preliminary brief
Before the hearing, the prosecutor will usually give the accused a preliminary brief, which includes a copy of the charge sheet, information about the importance of obtaining legal representation, a summary of the case against the accused and the accused’s prior convictions so that the accused can make a decision on how to proceed.
If the accused pleads guilty at the mention court, then the case will be dealt with immediately and the magistrate will pass sentence. However, if the accused pleads not guilty the case is deferred. At this point the court may schedule either of the following processes before a summary hearing in an effort to streamline procedures.
A summary case conference
A contest mention hearing
Summary case conference
This requires the prosecution and the accused, with the assistance of legal representation, to exchange targeted documentation and discuss issues in dispute including a change in charges laid. Following this conference, the accused may decide to plead guilty. If the accused decides to plead guilty, the case will be rescheduled in the mention court. If the parties cannot agree, the accused can request a full brief from the prosecution in preparation for the summary hearing.
Contest mention hearing
These hearings are not scheduled in all cases but are designed as a planning tool for cases that will proceed to a summary hearing. The purpose of this hearing is to estimate the time required to hear the case. The court will check the accused has sought legal representation, the number of witnesses involved, the required documentation, the issues in dispute and whether these can be resolved. On the accused’s request, the prosecution must provide a full brief at least 14 days before this hearing.
Summary hearings
A summary hearing will take place if the accused pleads not guilty. At this hearing, the accused will enter a plea, both the prosecution and the defence present their opening address followed by the case for the prosecution and then the case for the accused. The parties present their evidence and cross-examine the witnesses of the opposing side. The magistrate will then determine whether the accused is guilty or not guilty of the alleged offence. If the accused is found guilty then the magistrate will pass sentence.
Trials
Criminal procedures in the County Court and Supreme Court are known as trials. Before a matter goes to trial in the County Court or Supreme Court, a committal proceeding has usually taken place.
When does the trial begin, jury panel, indictment
The trial begins when the accused pleads not guilty in the presence of the jury panel (potential jurors in the courtroom). An indictment is a formal written document which accuses a person of a serious crime and orders them to stand trial.
3 occasions where a direct indictment might be issued
• a committal proceeding was not held
• the magistrate in a committal proceeding declined to commit the accused to trial
• an accused is acquitted and an exemption to the double jeopardy rule applies.
7 things that may be done at a directions hearing
• require the accused to indicate whether he or she has legal representation
• require the parties to estimate the number of witnesses or the need for interpreters
• resolve disputes about the disclosure of documents or the exchange of information
• determine applications for sentence indications so the offender can make an informed plea
• clarify legal or procedural issues
• set timelines
• make orders, which ensure the fair and efficient conduct of the trial.
What happens if accused pleads guilty
The procedure used in the County Court or Supreme Court to determine a criminal matter differs according to whether the accused pleads guilty or not guilty. If the accused pleads guilty no jury is required as the accused has admitted guilt. The prosecution presents a summary of the evidence, prior convictions are read out and the judge decides on a sentence.
Accused council, prosecutor
The legal representative (barrister) appearing in court for the accused is referred to as the accused’s counsel. The prosecutor is a barrister acting on behalf of the Office of Public Prosecutions.
• The case is called and appearances are entered. The prosecutor announces that he or she
At least 5 of 15 steps that occur when accused pleads not guilty at trial
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Where is the trial held
The trial will be held at a court location closest to where the offence took place, unless a court determines this would put a fair trial at risk or cause undue hardship to participants.
