If a person accused of a crime in NSW pleads not guilty to an indictable offence, then their matter will ordinarily proceed to a trial before a jury in the NSW District or Supreme Court. A jury hears evidence, applies the law as directed by the judge, and decides whether a person is guilty or not guilty of a crime. In very limited cases, a case may be heard by a judge alone instead of a jury.


The purpose of a jury trial

The accused is presumed to be innocent until proven guilty. A suspicion that the accused may be guilty is not enough; the prosecution must prove each essential element for each particular charge.

When an accused pleads not guilty and takes their matter to trial, they are denying each allegation made by the prosecution and it is the jury’s responsibility to decide whether the prosecution has proved the elements of the charges.

At a jury trial, the prosecution must prove that the accused is guilty of the offences beyond reasonable doubt. If the jury has a reasonable doubt, then they must dismiss the charge.


Role of the judge at a jury trial

While jury members decide the facts of a case, the judge will ensure that all the rules of evidence and procedure are followed. The judge will provide directions to the jury, instructing them on the legal principles that are relevant to the case and explaining how they should be applied to the issues which they have to decide. The judge must ensure the trial is fair and that the law is applied correctly.


What happens at a jury trial?


Opening statements

The prosecution will open the case by outlining the charges and the evidence they intend to present. The defence may also make an opening address to the jury about matters that they think are appropriate.


The prosecution case

The prosecutor represents the police or the state. They will tender evidence and call witnesses in an attempt to prove that the accused committed the crime.

When the witnesses first give evidence, they are giving “evidence in chief” and the defence may object to questions asked. After the prosecutor has finished, the defence may cross-examine the witness. This means that they will ask the witness questions in an attempt to cast doubt on the witness’ evidence and to confirm the points that support the defence’s case.

The prosecutor will then be able to re-examine the witness by asking further clarifying questions. After all witnesses have given evidence, the prosecutor will close their case.


The defence case

The defence will then also tender evidence and call witnesses.

The accused themselves will normally give evidence first, and their lawyer will ask questions about their recollection of events. The prosecution will cross-examine the accused in an attempt to confirm the prosecution case and cast doubt on evidence of the accused.

For example, if the accused participated in an interview with the police and then gives a version of events at trial that don’t match the police interview, then very little weight will be placed on their credibility and reliability.

In some matters, the defence may decide not to call any defence witnesses or tender evidence at all. Rather, the defence case will be based simply on the fact that the prosecution has failed to prove their case beyond reasonable doubt. Remember, the onus and burden of proof falls on the prosecution.


Closing submissions

After the defence case is complete, both the prosecutor and the defence will make closing submissions summarising their case to the jury.

The judge will sum up the case and give directions. The jury will deliberate and are expected to return a verdict of guilty or not guilty. It may take days or weeks for the jury to decide.


Frequently Asked Questions

Which criminal matters will be heard before a jury?

Typically, indictable offences (those considered to be the more serious criminal offences) will be heard before a jury. Table offences can also be heard before a jury if the prosecution or accused choose to take the matter to the District Court.

For some indictable matters, it is possible to have the case heard before a judge alone. There are advantages and disadvantages of both judge alone cases and jury cases. For instance, with cases involving a defence of mental illness, it may be more appropriate to have a judge trial as these cases may involve many technical arguments regarding the accused’s state of mind, and psychiatrist evidence for both the defence and prosecution would be required.

How is a jury selected?

Potential jurors are summonsed to attend court. The crown prosecutor gives an indication of what the matter is about and will read out the names of people involved in the trial. Jurors will be excused if, because of the type of matter or people involved, they would be unable to consider the case “impartially”.

Each member of the jury panel is given an identification number and each number is placed in a ballot box. The numbers of 12 people will be drawn from the box. Those 12 people then proceed to the jury area where both the prosecution and the defence have the right to challenge up to three people. If a potential jury member is challenged, they stand down and another number is drawn.

Once a full panel of jurors has been selected, each person will take an oath or an affirmation to carry out his or her task faithfully and impartially.

Why do some juries get discharged during trials?

Juries can be discharged if:

  • Some members are not paying attention,
  • A witness discloses something unfairly prejudicial to the accused and not permitted by the rules of evidence,
  • Jurors have been making their own inquiries about the matter, or
  • A juror becomes ill during a trial.

There are many potential reasons, but the main consideration is whether the trial of the accused person is fair.

Can I represent myself at a jury trial?

You can represent yourself at a jury trial, however the law and procedure for these trials can be very complicated. The potential penalties if you are found guilty are severe and you risk imprisonment.  Before deciding to represent yourself, it is important that you first speak to a defence lawyer who can give proper advice on the risks involved.

Engaging a defence lawyer to represent you before a jury trial will ensure the best possible outcome. An experienced defence lawyer knows the applicable law, including when to object, court etiquette and procedure, the prosecution case as well as the defence case, and must think on their feet. There may be subpoenas to issue, witnesses to conference, photos to take, scenes to visit, multiple conferences with you (which may include jail visits), recorded interviews to listen to, CCTV footage to watch, DNA materials and reports to be examined, and medical, psychological or psychiatric reports to be considered.

How can we help?

We are experienced in successfully running trials before a jury.

Call us on 1300 668 484 for 24/7 legal advice or book a consultation with a defence lawyer.