Last updated 29 August 2016
After the committal hearing or the filing of an ex officio indictment, the defendant is directed to appear at the criminal sittings of the Supreme Court or District Court commencing on a particular date.
Meanwhile, the transcript of the committal hearing, if one is held, is prepared and a copy sent to the Office of the Director of Public Prosecutions (DPP) along with all witness statements tendered. The DPP will then provide a copy to the defence and will decide whether or not the case should proceed to trial and what the indictment (formal charge) should be. Defendants are able to make oral or written submissions to the director in this regard. Reference to the public interest criteria contained within the DPP’s prosecution policy may be of relevance to that aim. If the decision is made not to proceed, the DPP may, instead of presenting an indictment, advise the court that they will not prosecute the matter by indicating nolle prosequi (no true bill).
Upon the presentation of the indictment, a defendant or their legal representatives will be called upon to advise the court of the course to be taken in respect of the indictment at a mention of the charge. If represented, a defendant need not appear at a mention. If a plea of guilty is indicated, a future sentence date before a judge only will be set. If the charge is contested, a trial by jury will be set down.
Arraignment and plea
At the beginning of a trial or sentence proceeding, the accused person is placed in the dock, the indictment is read out by the judge’s associate (who sits in front of the judge in the superior courts) and a plea is requested. If the accused pleads guilty, there is no need for a jury, and the judge considers penalty. If the accused pleads not guilty, a jury of 12 is empanelled.
Sentence proceedings in the superior courts are more formal than those in the Magistrates Court, but the legal principles that apply are the same (see the Sentencing chapter).
An application for a direction or ruling by a trial judge can be made by either the defence or the prosecution either before the trial commences (pre-trial application (voir dire) (s 590AA Criminal Code Act 1899 (Qld) (Criminal Code)) or at any point during the trial if an issue of law arises. Both proceedings are hearings convened before a court in the absence of the jury for the purpose of determining issues of law, for example whether certain evidence (often an alleged confession) is admissible in the proceedings or if the trial should be permitted to proceed either on the indictment as framed or at all.
Evidence can be heard at such a proceeding. Alternatively, arguments are often made on the basis of the evidence already led at a committal hearing. If the defence is asserting that an alleged confession was not given freely or is otherwise unreliable, relevant matters include the defendant’s age, literacy and intelligence. It is also relevant to establish the length of time the defendant has spent in police custody and whether:
- access to a solicitor and legal advice was denied
- there was compliance or otherwise with the provisions of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act)
- any assertions, promises or inducements were made by police.
A stay of the indictment may be sought on the basis of unfairness to the defendant due to, for example, delay or the unavailability of relevant evidence. Where there is more than one defendant or more than one charge, separate trials might be sought at a pre-trial hearing.
There is anecdotal evidence that such pre-trial applications have increased possibly as a result of the limited cross-examination of witnesses now allowed in the committal process.
Empanelling of the jury
An available jury list contains the names, addresses and occupations of the panel of people summoned as potential jurors. Potential jurors are randomly selected to come forward to take the oath or affirmation. During this process, both the defence and the Crown may challenge up to eight potential jurors, without needing to explain the basis for the challenge. If a juror dies or is discharged after a trial begins and there is no reserve juror (these are often chosen in lengthy trials) a criminal trial can continue with not less than 10 jurors.
Almost at any stage of the trial, particularly if the defence is successful on a voir dire (pre-trial application), the Crown prosecutor may enter a nolle prosequi (i.e. end the trial by deciding not to proceed further upon the indictment).
Evidence is the information or statements given personally by witnesses or drawn from documents tendered to the court to establish facts.
Evidence must be relevant to the matter before the court for it to be admitted at a trial. The court will only allow evidence to be presented when it complies with complex established rules of evidence.
The rule against hearsay provides that evidence must be an account of the first-hand experience of the witness giving it. Witnesses can only relate evidence they heard, saw, tasted or touched, not what someone has told them as truth of what was said. There are important exceptions to the rule against hearsay, and of particular importance is the confession or other admission made by the defendant against their personal interest. For example, police are able to give evidence of comments made by the defendant to them in an interview. The record of interview can take many forms (written, audio or video records of questions asked and replies given). For confessions to police to be admissible in evidence, they must have been made freely and voluntarily. All questioning of suspected offenders for indictable offences is required to be conducted electronically if practicable. The ss 414-441 of the PPR Act and the Police Powers and Responsibilities Regulation 2012 (Qld) set out the requirements to provide fairness to persons being questioned.
The opinions of a witness are not generally admissible as evidence in legal proceedings. However, opinion evidence can be admissible where the person giving the opinion has expert knowledge of that area. For example, a psychiatrist may give an opinion as to the mental health of the accused person at the time of the alleged offence, but a lay person could not give such opinion evidence. They could only say what they heard or saw.
Nevertheless, lay people and police officers are often permitted to give evidence of their opinion regarding matters of everyday life. Examples include estimates of speed, age, distance and sobriety.