Last updated 29 August 2016
Particulars of the offence and evidence to be presented
To assist in the preparation of a defence, once a defendant has indicated a plea of not guilty, the defendant is entitled to full and detailed particulars of the alleged offence from the police prosecutor.
Often evidence of a course of events that occurred on a particular date or evidence in respect of more than one person charged with the same offence will be presented (or led). The prosecution is required, on request of any defendant, to stipulate which particular actions of the defendant are said to constitute the offence and, if necessary, the legal basis for guilt.
A defendant is also entitled to be informed of the evidence the police intend to call to support the charge (e.g. the witnesses they will call at the hearing).
Particulars and briefs of evidence can be obtained by writing to the police prosecutor well before the summary or committal callover date.
In principle, a defendant may seek to speak to a witness being relied upon by the prosecution prior to the hearing. In some cases it may be useful to do so to completely understand expert evidence. However, in practice such a right should be exercised with extreme caution by an unrepresented defendant. It is a serious offence for a defendant to retaliate against, interfere with or corrupt a witness or their evidence, or to prevent a witness from giving evidence (ss 119B, 126, 127, 130 Criminal Code Act 1899 (Qld) (Criminal Code)). Any contact heightens the risk that such an allegation might be made. It should also be appreciated that any contact might later be the subject of evidence in the case. Additionally, bail conditions will sometimes stipulate that a defendant have no contact with prosecution witnesses. A witness may refuse to speak with a defendant, and in some cases it may be best to not engage on any issue that might reveal tactics or issues the defence sees as relevant before the evidence commences.
A defendant is not obliged to advise police who or what evidence might be called on their behalf before it is called.
Court hearings for summary offences are usually open to the public. However, the public will be excluded in some situations. Examples include where the defendant is a child, a complainant is giving evidence concerning a sexual offence, the alleged offence is of a sexual nature committed on a child under the age of 17 years or a child under the age of 17 years is giving evidence (see the Sexual Offences chapter for more detail). The court has the power to exclude the public and conduct a closed court if it considers it to be in the best interests of justice (ss 70–71 Justices Act 1886 (Qld), pt 2 div 4 Evidence Act 1977 (Qld)).
A magistrate has the power to adjourn any matter either before or during the hearing on application by either party. Once a case is set down for hearing, a further adjournment may be difficult to obtain unless there is a reasonable basis for it given the cost to the other party.
A prosecutor might apply for an adjournment where, for example, witnesses are unable to be located. If a defendant wishes to object to an adjournment on this basis, relevant issues for a court’s consideration include whether or not the witness is necessary for the case, whether there has been some fault or neglect on behalf of the prosecution in ensuring the witness’s availability or the certainty (or lack) of the witness’s appearance at the adjourned date.
A defendant seeking an adjournment must have well-prepared arguments and a good basis such as illness, absence from the city for a good reason or the plan to call witnesses unable to attend court. In the case of illness, a court often requires the production of a medical certificate that specifically states that the defendant is unfit to attend court. To not unnecessarily prejudice the other party, it might also be worthwhile to give the prosecution notice (preferably in writing) of any intention to seek a further adjournment.
The decision by a magistrate on an application for adjournment is discretionary but qualified by the defendant’s right to a fair trial. The fact that a refusal of an adjournment may lead to a miscarriage of justice is very important (Thornberry v R (1995) 69 ALJR 777; Sali v SPC Ltd (1993) 116 ALR 625).