When a defendant pleads NOT guilty to a matter which will be finalised in either the Supreme Court NSW or the District Court NSW, the matter will proceed to a Trial.


In the state of New South Wales, (in relation to state offences) the Office of the Department of Public Prosecutions (ODPP) is the government body which has carriage of prosecuting matters and prosecutor from the ODPP represents the ‘Crown’ in all criminal trials.


In relation to Federal related offences, then the CDPP has carriage of prosecuting matters.


The prosecutors’ job is to prove their case beyond a reasonable doubt meaning that they have the burden of proving every element (As well as essential facts) which pertains to the offences which bring a defendant before the court.


Simply put, the prosecutions job is to prove that the accused has committed an offence.


In NSW Criminal Trials are conducted either:


1.       Judge Alone; OR

2.       Before a Judge and Jury


Most Trials in NSW involving state offences are before a Jury. When a matter is to proceed to Trial before a Jury, 12 jurors will be selected on Day 1 of the Trial.


It should be noted that for a Trial to proceed before a Judge Only (‘Judge alone’) an application must be made prior to the commencement of the trial by either the defence or the prosecution pursuant to section 132 of the Criminal Procedure Act 1986 as it states the following:


(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a "trial by judge order" ). 


(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. 


(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order


(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. 


(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. 


(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. 


(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that– 


(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and 

(b) the risk of those acts occurring may not reasonably be mitigated by other means. 


It should be noted that ‘Judge Alone’ trials do not apply to a person who comes before the court charged with a Federal Offence as federal offences must be heard before a Jury.


What happens after a Jury is empanelled?

Once the Jury is empanelled, opening address will commence. The Trial Judge will ask the prosecution to start their opening address and the opening address will inform a jury of what the matter is about, highlight the charges as well as the evidence which the prosecution anticipates presenting at the trial.


The defence can also make an opening address after the jury hears the Crown’s opening address.



What happens after the Opening Addresses?

The Prosecution will open their case by calling witnesses to give evidence with respect to what they saw, heard, or otherwise perceived.  The prosecution can also use other evidence to support their case such as CCTV footage, medical reports, photographs, or other documentary evidence.


After the prosecution’s witnesses have given their evidence in chief, they can be cross examined by the defence. This means that the defence lawyers will then ask those prosecution witnesses questions to test their credibility, truthfulness and put the defence case (when relevant) to that witness.


Cross examination is one of the oldest techniques which lawyers have used for centuries in the legal system to test the reliability, truthfulness, and credibility of a witness in court. As the defence lawyers are cross examining the prosecution witnesses, the defence can introduce their evidence such as photographs, CCTV footage, medical reports through these witnesses in cross examination.


Once the defence lawyers have finished Cross examining a prosecution witness, the prosecution can re-examine their witness if there are any other matters which require further detail.


What happens after the Prosecution presents their case?

The defence case will commence. The defence is under no obligation to prove anything, the defence is under no obligation to call any evidence. If the defence decides to present a case to the jury and if the defence intends on calling witnesses, then the prosecution will be entitled to cross examine the defence witnesses once the defence witnesses have given their evidence in chief.


Once the prosecution have finished Cross examining a defence witness, the defence can re-examine their witness if there are any other matters which require further details.




Closing Submissions.

Once the defence case concludes, (sometimes at the completion of the prosecution case), both sides will have the opportunity of making closing submissions to summarise their case as well as the evidence which has been heard by the court. The Trial Judge will also give directions with respect to the law as applicable to the case.


Summing Up & Deliberation.

Once BOTH the Defence and Prosecution have closed their cases, the judge will ‘sum up’ the case for the Jury and this means that the judge will summarise the evidence adduced during the trial and summarise the arguments which have been made by each side and give the appropriate directions on the law (which differs as the directions are on a case-by-case basis).


After the judge finalises the ‘summing up’ stage of the proceedings, the jury will be asked to consider the verdict. When the jury is ready and is able to reach a verdict, the verdict is delivered in court through the foreperson and the foreperson presents the verdict for each charge of either guilty or not guilty.


If all the jury are not able to unanimously reach a unanimous decision a hung jury could be declared, but it should be noted that in some instances a court can allow a majority verdict (in very limited circumstances).


Trials pertaining to commonwealth related offences must always be determined by a unanimous verdict.



If the Jury comes back with a verdict of NOT Guilty, then the person is acquitted of the offence.


If a jury (or a Judge in the case of a judge alone trial) comes back with a Guilty verdict, then the matter will be listed for sentence on a future date.


It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.


Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.


*This article correctly reflects the Laws of NSW as at 28th September 2022.


*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship.


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