What is a defended hearing?
A defended hearing, or summary hearing, is a trial in the Local Court.
Defended hearings are held for summary or table offences where the accused has pled not guilty. They are held before a magistrate who hears the cases of both parties and determines whether the accused has been proven guilty.
A defended hearing provides the accused with the opportunity to test the prosecution’s case, and to give their version of events.
What happens at a defended hearing?
The prosecution case
The prosecution will make an opening address and outline their case to the court. They will then present their evidence through witnesses who can be cross-examined by the defence. The defence can object to inadmissible, unfair, or prejudicial evidence.
The defence case
At this point in the hearing, the defence can submit that there is no case to answer. That is, they will argue that the prosecution’s evidence cannot prove the charge, and request that the matter be dismissed.
If the matter is not dismissed, the defence has the opportunity to present its case. The defence can also give an opening address, present evidence, and its witnesses can be cross-examined by the prosecution.
Decision by the magistrate
Once all the evidence has been presented and closing submissions have been made, the magistrate will make a decision as to guilt or innocence. If the magistrate convicts the accused, sentencing will typically occur that day, or as soon as possible.
Prior to the hearing
First mention
If the accused enters a plea of not guilty, the magistrate or registrar will usually make orders for the service of the brief of evidence upon the accused. The brief of evidence contains all the evidence that the police intend to rely upon at the hearing. This can include:
- Police, victim, witness and expert statements.
- The results of forensic tests.
- Any photographs, plans, sketches or similar documents.
- DNA evidence.
- CCTV footage.
- Interview records.
- Drug analysis certificates.
- Call charge records of telephones.
Some offences require a brief of evidence to be served regardless of the plea, while others such as drink driving or offensive conduct do not require a brief at all.
Once the brief is served, the defence lawyer will determine which witnesses should be cross-examined and begin gathering evidence to mount the defence case. This might include issuing subpoenas, interviewing potential witnesses, gathering character evidence material, and requesting expert reports where necessary.
Second mention
If the prosecution has served the brief of evidence and the accused’s case is ready, the defence lawyer will ask the court for a hearing date. The defence lawyer will complete a Court Listing Advice that identifies the witnesses to be cross-examined, and estimates how long the hearing will take.
