When an adult enters a plea of guilty
in the state of NSW to a Summary Offence then the matter will proceed to a Local
Court Sentence.
However, when an adult enters a plea
of NOT guilty for a Summary Offence(s) in the Local Court, then that matter
will eventually proceed to a Local Court Defended Hearing. Defended Local Court
Hearings are often conducted in an Open Court so this means that any member of
the public may be present. (This includes the Media).
What is a Local Court Defended
Hearing?
A Local Court defended Hearing is
where the Local Court Magistrate hears the evidence of the defendant as well as
the prosecution and the court also hears submissions which are made the by both
the defence (explaining why the defendant should be found not guilty of the
offence) and submissions from the prosecution (explaining why the defendant
should be found guilty). Once the evidence and the submissions are heard by the
Court, the Magistrate then decides whether the offence has been proven beyond a
reasonable doubt.
With respect to serious summary offence(s)
it should be noted that after a defendant enters a plea of not guilty, there
will be a vital consideration for the Court as the defendant will either be
held on remand, or the defendant will be granted bail. If an accused person is
granted bail, as part of the defendant’s bail undertaking the defendant must
attend court (failure to appear at court will more than likely result in the
Local Court Magistrate issuing a warrant for the defendant’s arrest) and the Court
can also impose other conditions as part of the defendant’s Bail Undertaking, such;
the defendant is not to Not Consume any alcohol, the defendant is to adhere to
Curfew Conditions, etc.
It should be noted however that this
process does not apply for defendants who come before the court charged
with an Indictable Offence and this is because Indictable Offences are
finalised only in the District Court NSW or the Supreme Court NSW.
What is the Brief of Evidence?
A Brief of Evidence consists of all
the evidence which the prosecution will seek to rely on in prosecuting the
defendant. The brief of evidence consists of the following (including but not
limited to) CCTV footage, statements from the police, Expert Evidence, Witness statements
etc. Once the Defendant enters a plea of NOT guilty in relation to a Summary Offence,
the Court Orders a brief of evidence (or in other words the court makes ‘Brief
Service Orders’), and once such orders are made, the prosecution must
provide the Defence with the brief.
Once the defence have obtained the
brief of evidence, the defence will sometimes seek to raise issues with respect
to the admissibility of some of the evidence. It should be noted that this can
be done by either negotiations with the prosecution to have that evidence
excluded or by way of proceeding to a Voir Dire prior
to the Hearing where the defence will make submissions to the magistrate
(sometimes even call evidence) as to why such evidence is inadmissible.
What happens at the Defended Hearing?
At the defended Hearing in the Local Court
(like a Trial) parties may call evidence. The prosecution begins the Hearing
and the prosecution calls police witnesses and then any other witnesses who the
prosecution is seeking to rely on as part of their prosecution case.
The Defence will have an opportunity
to Cross Examine the prosecution witnesses. 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.
Once the prosecution have closed 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 call any defence witnesses to give evidence, 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 detail.
Both the prosecution and the defence
must adhere to the laws contained in the Evidence Act.
After both parties have closed their
cases, the Local Court Magistrate will then hear submissions from both the
prosecution and the defence which sums up each of the parties’ evidence and
legal arguments.
The Magistrate will then make a decision, and this may occur on the same day
following the parties’ closing submissions or (sometimes) the Court may adjourn
to a later date for the Local Court Magistrate to provide parties with the
judgment which will entail the court’s reasoning behind the final verdict.
Appeal process from the Local Court?
If the defendant (or even the
prosecution) is of the opinion that a Local Court decision (either the verdict
or the sentence) was unfair, if either party are of the opinion that an error
was made by the Magistrate (error of law) then either party can appeal such
decision to the District Court. It should be noted that an appeal must be filed
within 28 days of the Court’s decision.
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 5th October 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.