Step by step guide - Going to a defended hearing

The prosecutor will usually go first. They may begin by giving the Court a brief overview of the case, or by calling their first witness.

All witnesses are required to sit outside the courtroom. When their name is called, they will be asked to go into the witness box and take an oath or affirmation.

After the prosecutor has presented all their evidence, the Court will decide whether there is a case against you. This is sometimes referred to as 'a case to answer'. 

If the Court believes that the prosecution has not provided sufficient evidence to convict you, the case will end there, and you will be found not guilty.  

If the Court believes there is a case for you to answer, you will be given a chance to give your evidence.

When it is your turn, you can give a short summary of your case known as an opening address or you can call your first witness (usually yourself).

You may have to:

• Question a prosecution witness
  
• Question your own witness
  
• Re-question a witness
  

Questioning a prosecution witness

A prosecutor will question their own witnesses before you do. This is called 'examination in chief'. 

After the witness has been questioned by the prosecutor you will have a chance to question the witness. This is called 'cross-examination'. 

If your case is about a domestic violence criminal matter and you are self-represented, you are not allowed to directly ask the complainant questions about their evidence. The Court will appoint a suitable person from the court staff or a Justice of the Peace to ask your questions on your behalf. This person is called a Court Appointed Questioner.

After the Court Appointed Questioner has cross-examined the complainant, you will also get a chance to cross-examine the prosecutions other witnesses.

Questioning your own witness

If you have any witnesses, it is a good idea to issue a subpoena to make sure they come to the hearing to give evidence.

You will question your witnesses before the prosecuto​r has the chance to cross-examine them. You can ask the witness a series of questions to allow the witness to give their story to the Court.

When you are questioning your own witnesses, you should start by asking the witness to tell the Court their name, address and occupation. Once the witness has given that information, you could:

• ask the witness to tell the Court what happened on the day of the incident, for example "Can you tell the Court what happened on 12 June 2013?"
  
• ask the witness questions to clarify issues or to confirm their evidence, for example: "You said you know I wasn't speeding, how can you be sure?" and "What speed was I driving at?"
  

Your questions should allow the witness to give their evidence in their own words. The prosecutor may object if you try to lead the witness to give a certain answer.

If you did not ask for a prosecution witness to attend the hearing when you filled out a listing advice, the prosecutor may try to tender (present to the Court) the statement of the witness. If the Court agrees, this means that the statement will become evidence for the prosecution case. Make sure you check that any statement the prosecution wants to tender is the same as the one in the police brief of evidence (if you were given one).

Once you have finished asking your witness questions, the prosecutor may cross-examine them.

Re-questioning a witness 

At the end of the cross-examination of a witness, you (or the prosecutor) may decide to re-examine the witness. This is known as re-examination.

Re-examination only happens where necessary. For example, you (or the prosecutor) may need to ask questions to clear up any issues raised during cross-examination. The witness shouldn't be asked questions about anything they were not cross-examined about.

You don't have to give evidence. The decision about whether to give evidence yourself can be complex, and if you are not sure that giving evidence is in your best interests, you should get legal advice.

If you decide to give evidence, you will have to stand next to the witness box and make an 'oath' or 'affirmation'. Both are promises to tell the truth. An oath has a religious meaning and an affirmation does not.

You can then tell the Court your version of what happened, and why you believe you are not guilty. The Court may ask you to explain some things in more detail. The Court may also ask you to move on to another point if they feel they have heard enough about an issue or that what you are saying is not relevant to your case.

If you decide to give evidence, the prosecutor will have the opportunity to cross-examine you and your evidence. When the prosecutor is asking you questions, you should:

• let the prosecutor finish asking the question before you answer
  
• listen carefully and think about each question before you answer
  
• ask the question to be repeated if you don't understand
  
• admit if you don't know the answer to a question
  
• speak loudly, clearly and slowly
  
• give exact details, for example if a conversation took place tell the Court the exact words that were used.
  

Try not to get angry, even if the prosecutor is rude or aggressive.

If you want the Court to see evidence other than that from witnesses, you can make it an 'exhibit'. An exhibit is physical evidence, such as a document, photo or object, that is tendered (given to the Court).

Physical evidence usually needs to be identified by a witness who created it or knows where it came from before it can be tendered. When the witness gives evidence in the witness box, the evidence can be identified. For example, if the evidence is a photo, the witness can give evidence about:

• where they took the photo
  
• when they took the photo.
  

If you want to ask a witness some questions about a piece of evidence, but they were not involved in its creation, you can ask that the evidence be 'marked for identification' (MFI). This means that the evidence can be identified by another witness later but you can ask other witnesses questions about it. The evidence will not be tendered and become an exhibit until the witness who was responsible for creating it gives their evidence later in the hearing.

For example, if you wanted a witness to give evidence about a photo, but they did not take it, you could say to the Court something like:

'I have a photograph I want to show to the witness. Could it be marked for identification, Your Honour?'

You should be given an opportunity to examine any exhibit before it is tendered or marked for identification by the prosecution. If the prosecution tries to tender it without showing you, you can ask the Court to have a look at it. 

After all the evidence has been presented, you and the prosecutor will be given a chance to summarise your evidence and arguments. The prosecutor will go first.

You should summarise the evidence that supports your case and explain to the Court why you think they should accept your version of events. If there are gaps, mistakes or things that don't make sense in the prosecutor's case you should mention these. You should not introduce any new evidence during your summing up.

Checklist: Summing up

Prosecution evidence

For more information about prosecution evidence, you should watch the video below.

LawAccess NSW -  The hearing: prosecution evidence

Cross examining witnesses

For information about cross examining a witness, you should watch this video below: 

LawAccess NSW - The hearing: cross-examining a witness

Questioning your own witnesses

For more information about questioning your own witnesses, you should watch this video: 

LawAccess NSW - The hearing: questioning your witnesses

Giving evidence

For information about giving evidence yourself, you should watch this video: 

The hearing: giving evidence

Submissions

For information about how to sum up your evidence and arguments, you should watch this video: 

The hearing: making submissions

If you are successful in defending the charges against you, you will be found not guilty and the charge will be dismissed. You are then free to leave the court.

The prosecutor cannot appeal the local court's decision to a higher court, such as the district court. In some cases you may be able to ask that your legal costs be paid (if you have any).

For more information, see Paying costs.

If you have pleaded not guilty to more than one offence, the magistrate will need to make a decision about your guilt for each offence. It is possible for the magistrate to find you not guilty for some offences and guilty for other offences. 

If you lose the case, the magistrate may sentence you for the offence on the same day or on another day.

Depending on the seriousness of the offence and whether you already have a criminal record, the court may make orders about:

• a sentencing assessment report, which looks at what type of penalty would be suitable for you
  
• assessing your suitability for a program like the Magistrates Early Referral into Treatment (MERIT) Program, if you have a problem with illegal drugs
  
• adjourning your case to allow you to complete a driver education program, such as the Traffic Offenders Intervention Program.
  

It is important that if you go to court for a hearing, you are prepared to make submissions about sentence in case you are found guilty, even if you pleaded not guilty.

For more information on how to prepare your submissions and what sentence the court can give you, see Your submissions in Preparing for court if you are pleading guilty.

For more information on what happens after a decision is made, see After court.