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.


Frequently Asked Questions

What is a summary offence?

Summary offences are less serious offences, often criminalised under the Summary Offences Act 1988 (NSW). They are heard in the Local Court and have a maximum penalty of two years imprisonment.

Some indictable offences can also be dealt with summarily if the prosecution and accused agree to keep them in the Local Court.  These are called table offences.

How can I prepare for a defended hearing?

Defended hearings require intense preparation, and the experience of a skilled defence lawyer is essential. Our lawyers can advise whether it is necessary to obtain expert evidence, call other witnesses, or issue subpoenas.

What do I have to prove at the hearing?

The prosecution must prove that you are guilty of the offence beyond a reasonable doubt. If the magistrate has a reasonable doubt, then he or she must dismiss the charge. In most cases, you do not have to prove anything because you are presumed to be innocent of the offence until proven guilty.

What happens if the brief of evidence is not served on time?

Police do not always serve the brief of evidence by the date allocated. However, they may still be able to serve the brief of evidence later. Normally, if the police provide a reasonable excuse, the registrar will give the police further time to serve it.

What is involved in a cross-examination?

A cross-examination is an opportunity to examine the opposing side’s witness(es). However, a cross-examination is not simply asking questions. It is the deliberate and logical exploration of evidence, the testing of witness reliability and honesty, and the exposure of inconsistencies.

How can we help?

We are experienced in successfully running defended hearings.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.