Overview

What is a Defended Hearing?

A defended hearing in the Local Court is the opportunity to test the prosecution case by cross examining witnesses after the accused has pleaded not guilty. Occasionally, it is also the opportunity of the accused person to give their version of what really occurred – if it becomes necessary to do so.

Defended hearings require intense preparation. Our criminal lawyers thoroughly prepare cases where our client pleads not guilty. We meticulously scrutinise the prosecution case contained in the brief of evidence and offer advice backed by years of experience.

Nothing beats experience. Our accredited criminal law specialist and all of our criminal defence lawyers have experience in running defended hearings. Cross examination is not simply asking questions. It is the deliberate and logical exploration of evidence, the testing of witness reliability and honesty, the exposure of inconsistencies.

Running a defended hearing also involves thinking on your feet and knowing the relevant law, including the rules of evidence, so that the legal argument can be presented in a convincing manner.

Our lawyers can advise whether it is necessary to obtain expert evidence to counter or negate the prosecution case. Perhaps it will be necessary to issue a subpoena or two, or to complete a Listing Advice.

When running a defended hearing, it is also important to look ahead – particularly in difficult or complex matters. A defended criminal local court hearing must be conducted properly to preserve rights, if required, upon appeal. Magistrates do not always get it right!

FAQs

Defended Hearings FAQs

Local Court Hearings – What Happens Prior to the Hearing?

For most offences that can be dealt with in the Local Court, a brief of evidence is ordered to be provided to the client or their solicitor upon a plea of not guilty being ordered. Some offences require a brief of evidence to served whether or not a plea of not guilty is entered. There are some offences, such as drink driving matters and offensive language/manner that are given a hearing date once a plea of not guilty is entered.

The brief of evidence consists of the witness statements – normally the arresting police, any alleged victim, other witnesses, experts etc.

Once the brief is served, your criminal lawyer will advise which witnesses are required for cross examination at the defended hearing. Serious consideration needs to be given to gathering evidence to mount the defence case – such as by issuing subpoenas, taking photographs, visiting the scene of the alleged crime, interviewing potential witnesses, gathering character evidence material, requesting expert reports where necessary etc.

A defended criminal law hearing is an event. Our criminal lawyers do nothing else but criminal law and have the experience to advise you and represent you in Court. Your lawyer must know the rules of evidence, court etiquette, the law, the facts and the potential evidence as well as the key points for cross examination and submissions.

What Happens At a Hearing?

The prosecution witness give their evidence and are then cross examined by the criminal defence lawyer. Objection is taken to inadmissible or unfair/prejudicial evidence. Exhibits are tendered. After all of the prosecution witnesses have given their evidence, we then advise you based on the evidence as to whether or not there is a case to answer. In other words, sometimes at this point in the hearing we are able to submit to the Magistrate that the charge cannot be proved. If that submission cannot be made, or is not accepted, then you have the opportunity of giving evidence and being cross examined. This is not a decision made on the spot – it is a decision that has been planned during our preparation for the hearing and discussions with you in conference.

Once all of the defence witnesses have given their evidence, submissions are made from both the prosecution and the criminal defence lawyer to the Magistrate, who then makes a decision as to guilt or innocence.

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