Last updated 29 August 2016
The defendant is not required to give or call evidence, because the onus in criminal matters is on the prosecution to prove the case beyond reasonable doubt. The onus is also on the prosecution to negative or disprove any defence that arises on the evidence. The defendant has a right to remain silent, and no negative inference should be drawn from that.
However, it remains a choice, and a defendant may wish to provide a contradictory account or raise a defence not otherwise open on the prosecution case. The decision whether to give or call evidence is not an easy one. For example, prior convictions of the defendant may become admissible if credit is in issue by a defendant giving evidence disputing the truth of the prosecution witnesses. The right to address the magistrate last at the close of the case is with the prosecution if a defendant gives or calls evidence. Otherwise, it remains with the defendant.
If calling evidence, each witness for the defence, including the defendant, will proceed by way of examination-in-chief (led by the defence), cross-examination (led by the prosecutor) and re-examination (led by the defence).
There are now statutory provisions modifying the common law position by deeming a defendant in certain circumstances to be in possession of things such as stolen goods or drugs. In such cases, where a matter is presumed against a defendant unless the contrary is proved, a reverse onus of proof may apply. When the onus of proof is on the prosecution, the standard of proof is beyond reasonable doubt. However, when the onus is on the defendant, it is a standard to prove on the balance of probabilities. All the defendant has to do is to prove that it is more likely than not that they did not know that, for example, the property was stolen or that the drugs were illicit drugs. In such cases, it becomes important that a defendant understands the importance of giving some evidence proving their innocence. There are a number of similar ‘reversal of the onus of proof’ provisions scattered throughout the legislation, and legal advice on such offences should be obtained before a matter proceeds to court.
At the end of the evidence, both the prosecutor and the defendant (or the defendant’s lawyer) have the opportunity to address the magistrate about the case. Generally, an outline of the evidence led which supports the defence position and an argument that the prosecution has not proved its case beyond a reasonable doubt (including by negating any defences raised) is necessary.
Usually the verdict will be given promptly. However, if the trial was long or complicated, the magistrate may adjourn to consider the verdict or provide written reasons for judgment.
The magistrate must be satisfied beyond reasonable doubt that the defendant is guilty of the offence as charged. If the magistrate has a reasonable doubt about any of the essential elements of the charge, or if the magistrate is satisfied that a defence to the charge has been successfully made out, then the charge must be dismissed and the defendant discharged.
A discharged defendant has no further obligations to the court in respect of that charge and is free to leave the court. A defendant who is found guilty of the offence charged continues to be obligated to the court until the defendant has complied with any sentence order that might then be made. Sentence proceedings similar to that outlined above in respect of a guilty plea will follow a conviction.
Costs are generally not payable by an unsuccessful defendant when police lay the charge. However, if police call non-police witnesses (e.g. a doctor), the unsuccessful defendant may be ordered to pay the expenses for such witnesses. A defendant might also be required to pay the filing fee for any summons filed. Costs may be ordered in successful prosecutions by other statutory authorities, for example a workplace health and safety prosecution or a taxation offence prosecution.
When a charge is dismissed, the magistrate also has power to order such costs as seem just and reasonable against the complainant (usually the police). Section 158A of the Justices Act 1886 (Qld) stipulates some of the relevant considerations to the exercise of the costs discretion.
A defendant who has been convicted of a charge will also be ordered to pay an offender levy, an annually indexed administrative charge introduced to pay for costs of law enforcement and administration.