When you go to court for the hearing, you should arrive at court at least half an hour before your case is listed for hearing. You can find the courtroom where your case will be heard by looking up your name on the court list (usually in the foyer of the court house)
If you are going to be late ring the court registry, otherwise the court may decide your case without you.
Before you enter the courtroom, make sure you turn your mobile phone off and remove your hat and sunglasses. You can sit in the public gallery of the courtroom until your name is called.
Be prepared to be at court all day. You may not be the first to have your case called, so make arrangements with work or childcare, if necessary. Sometimes cases are 'not reached', depending on how long other matters take. If this happens, your case will be adjourned and you and all the witnesses will have to go back to court on a different date.
Once your case is called, you can move to the table at the front of the courtroom facing the Magistrate. This is called the 'bar table'. The prosecutor will usually sit on the right hand side. You can sit in a chair on the left hand side of the table. This may vary from court to court.
The Magistrate will usually ask if you and the prosecutor are ready to start with the hearing and will listen to any issues, for example, if there were documents missing from the police brief and they were not served on you after you asked for them.
The Magistrate will either:
- start the hearing straight away
- tell you a time later in the day to return (called a 'marking')
- send you to another courtroom.
Once everyone is ready to start, the witnesses will be asked to wait outside. The prosecutor will present their case first. They will call their witnesses and question them. You will also be given a chance to question their witnesses.
After hearing the prosecution evidence, if the Magistrate decides there is a case to answer, you can present your case, by giving evidence and calling any other witnesses you have.
For more information, see At the hearing below.
Sometimes, when there is a lot of evidence or many witnesses, the Magistrate will not be able to finish the hearing in one day. If this happens, the Magistrate will have to adjourn the hearing until the rest of the evidence can be heard. Depending on when the Magistrate is next available, the adjournment may be for a few weeks or for a few months.
The Magistrate will give you instructions on when to come back to court and who should come to court on that day. In some cases, your witnesses and the prosecution witnesses will all have to come back to court for the rest of the hearing. If your witnesses were subpoenaed they will need to come back on the next court date.
The bar table should only be used to place documents and folders. It is not be used for personal belongings for example coffee cups, water bottles or handbags.
When you go to a hearing, both you and the prosecution can present evidence to the Court. Once all the evidence has been presented to the Court, both sides get a chance to sum up their case.
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 prosecutor 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.
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:
Submissions
For information about how to sum up your evidence and arguments, you should watch this video:
After the Magistrate has heard all the evidence and listened to the summaries from you and the prosecutor, they will decide whether you are guilty or not guilty of the offence. The Magistrate will often give their decision straight away, or after a short break. The Magistrate will give reasons for their decision. Sometimes, the decision of the Magistrate will be 'reserved'. This means that a decision is not given on the day of the hearing and the Court will contact you when the decision has been made.
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 can't 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 the Magistrate finds you guilty, they 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 Magistrate 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.
For more information, see The decision.
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 Magistrate 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.
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