If you plead not guilty to some or all sexual offences on the indictment, then your case will go to trial. Trials in the District Court are heard before a Judge and jury. There are situations where there can be a Judge only trial, but these are rare.
In a trial Judges handle all of the issues of law (e.g. admissibility of evidence, instructing the jury about legal issues). Juries determine the factual issues. The jury are present during the trial when evidence is produced in Court. At the end of the evidence, the jury decide if you are guilty beyond reasonable doubt of the offence or not guilty.
THE START OF YOUR TRIAL
At the start of the trial and during your trial you will sit in the dock, which is usually positioned at the back of the courtroom. Your barrister (if you have one) will be at the left side of the bar table with your instructing solicitor. The Crown Prosecutor from the Office of the Director of Public Prosecutions will stand to the right of the bar table. Once the lawyers are all seated at the bar table and you are sitting in the dock, the Judge and their associate will enter the courtroom. As the Judge is entering the courtroom, the bailiff (who assists the court) will tell everyone to stand. The Judge will sit in their chair and then everyone in the courtroom can take a seat.
The Crown Prosecutor will announce their appearance to the court and will ask the Judge to take your matter. Your barrister will stand and announce their appearance.
The Judge will then tell the Bailiff to bring the potential jurors inside the courtroom.
When you are charged on indictment with a criminal offence you will need to enter your plea to the offence (i.e. whether you are pleading guilty or not guilty to the offence). This process of entering your plea is called the arraignment. This process will usually be performed in front of the jury pool of persons, 12 of whom will be chosen as members of the jury for your trial.
You will need to stand and the Judge’s Associate will ask you how you want to plead (guilty or not guilty) to each count (offence) on the indictment. The process is as follows:
Judge’s Associate speaks:
“Your name stand charged on date at place with the text of the charge in the indictment. Your Name how do you plead, guilty or not guilty?”
The usual response is “Not Guilty.”
The Judge’s Associate will then turn to the judge and tell him or her your plea to the count. For example, they will say “Not Guilty Your Honour.”
If there is more than one count on the indictment, the Judge’s Associate goes through the same process for each count one by one.
Once you have been arraigned, 12 persons from the jury pool will be selected (empanelled) as the jury of your trial. Prior to your trial starting your lawyer will get a jury list from the court registry. Each potential juror is given a number on the jury list. This jury list details for each potential member of the jury the following information:
- Their allocated number.
- Their name.
- Their occupation (if provided).
- The suburb where they live.
During the jury selection process, the defence and prosecution can each say they do not want a person on the jury. If either the defence or prosecution say they do not want a person on the jury, this is called a pre-emptory challenge. The defence and prosecution each are allowed up to 8 pre-emptory challenges. This means the defence and prosecution can each only challenge 8 potential jurors. When the defence challenge a juror, the barrister will usually say “Challenge” and the prosecutor will usually say “Standby”.
The jury selection process is as follows:
1. The Judge directs the Associate to empanel the jury and to inform you of your right to challenge.
2. The Judge’s Associate will say something like:
“Your Name these representatives of the community whom you will now hear called may become the jurors who are to decide between the Prosecution and you on your trial. If you wish to challenge them, or any of them, you, or your representative, must do so before the bailiff begins to recite the words of the oath or affirmation”.
3. The Associate will say to the pool of potential jurors “Members of the jury, please answer to your names.”
4. The Judge’s Associate places cards with the number of each juror into a barrel. The Associate spins the barrel and takes out a card. The Associate will read out the number and the name of the potential juror.
5. The potential juror will walk towards where the bailiff is standing to be sworn in as a juror. The bailiff will ask the juror if they wish to take an oath or affirmation. The bailiff will then start to take the oath or affirmation from the potential juror. Up until the point of when the oath or affirmation has been administered, the potential juror can be challenged either by the defence or prosecution. In some situations, a potential juror may be challenged before they have even made it to the bailiff.
6. If a juror is challenged the Judge’s Associate will place the card with the number of the potential juror who was challenged into a pile.
7. If a potential juror is sworn, the Associate makes a note of the number in their notebook and hands the card with the number of the juror on it to the Judge.
The above process of selecting a jury continues until 12 persons are empanelled as the jury.
JUDGE REMARKS TO JURY
After the jury is selected and before the persons who were not selected as members of the jury leave, the Judge tells the jury the name of the defendant and the offence/s he or she is charged with. The Judge then asks the Crown Prosecutor to read out the names of the persons who will be called as witnesses in the trial. The reason for this, is so any of the jurors can see if they recognise any of the names of the witnesses.
The Crown Prosecutor reads out the names of each witness and they may provide details about where they live or work. The Judge will then tell the jury how it is important they be impartial. The Judge will ask the jurors if any of them feel they cannot be impartial or if there is anything about the trial they believe would prevent them from performing their role as a juror. If any juror say they have an issue the Judge will speak to them and decide if they should be discharged from serving on the jury.
ASSOCIATE SPEAKS TO JURY
The Associate reads out the names of each juror and asks them to individually answer their names.
The Associate reads out the charge/s on the indictment to the jury. The Associate tells the jury:
- the defendant says they are not guilty to the charge.
- it is their duty to say whether the defendant is guilty or not guilty of the charge.
- it is their duty to pay attention to the evidence.
- they are to choose a member of the jury to be their speaker.
PROCLAMATION TO WITNESSES
The Judge will ask the bailiff to make a proclamation to witnesses. This means the bailiff will say out loud that all persons who are witnesses in the trial should leave the courtroom until they are called to give evidence.
BAILIFF IS SWORN IN
The bailiff will then be sworn in. This means they will take an oath on the Bible to swear they will not communicate with the jury or allow anyone else to communicate with the jury unless authorised by the court or by the law.
JUDGE GIVES OPENING REMARKS
After the jury has been selected the Judge will generally talk to the jury about various things, including:
- the offence/s on the indictment.
- their role during the trial.
- the prohibition against making their own inquiries about the defendant.
PROSECUTION GIVES OPENING ADDRESS
The Crown Prosecutor will tell the jury what the trial is about and the evidence the Crown expects each of their witnesses to give.
PROSECUTION CALLS WITNESSES
After the Crown Prosecutor has given their opening address to the jury they will call each of their witnesses one-by-one to give evidence.
When a witness is called to give evidence, they sit in the witness box. The witness will not have their witness statement with them. The witness must give evidence based on what they can remember from their memory. The Bailiff of the Court swears in the witness. The Bailiff asks the witness if they wish to take an oath on the Bible or an affirmation. This is to confirm the witness swears to tell the truth to the Court. After the witness has taken an oath or affirmation, the Crown Prosecutor will ask the witness questions (this is known as examination-in-chief). The questions asked by the Crown Prosecutor cannot generally be leading questions (i.e. questions that in themselves suggest the answer to the question e.g. the car that went through the red light was blue, wasn’t it?).
When the Crown Prosecutor has finished asking a witness questions, the defence can ask the witness questions. This is known as cross-examination of the witness. During cross-examination the defence can ask a witness leading questions. However, the defence cannot ask a witness anything they want. The questions must be relevant to the issues to be determined at the trial (they must have some relevance to the trial).
When the defence has finished asking a witness questions, the prosecution can ask the witness questions. This is called re-examination of the witness. You will hear the Judge ask the prosecution if they want to re-examine the witness.
After the Crown has called each of their witnesses to give evidence, the defence can call witnesses. Witnesses called by the defence may be the defendant or some other person who helps the defendant. The defence will not always call witnesses to give evidence.
If your trial involves any children who have had their evidence pre-recorded their evidence will be played to the jury.
At the close of the prosecution case and the defence case, each side gives a “closing address” to the jury. The order in which closing addresses take place depends on if the defendant presented any evidence or gave evidence. If the defendant did not give evidence or present any evidence, the prosecution gives their closing address first.
JUDGE SUMS UP
At the end of the closing addresses, the Judge will sum up the evidence to the jury and give them directions about any legal issues (e.g. if self-defence is raised on the evidence or provocation).
THE JURY RETIRES
After the Judge has summed up to the jury, the jury retires to deliberate (they go out of the courtroom to decide if they will return a guilty or not guilty verdict). In Queensland there needs to be a unanimous verdict. This means all 12 jurors need to agree on the verdict whether this is guilty or not guilty. However, there are circumstances where a judge can allow a jury to return a majority verdict, which is discussed below.
If the jury returns a unanimous verdict, the Judge’s Associate will ask the jury some questions for each count on the indictment as outlined below.
Associate: Members of the jury, are you agreed upon your verdict.
Associate: Do you find the defendant guilty or not guilty of the offence.
The speaker for the Jury: Will say “guilty” or “not guilty”.
Associate: So says your speaker, so say you all?.
THE BLACK DIRECTION
If the jury indicates to the Judge they are unable to reach a verdict, the Judge can give the jury a “Black Direction”.
The Judge will tell the jury something like:
- They can take as long as they wish to reach a verdict.
- He or She has the power to discharge them from giving a verdict, but they should only do so if he/she is satisfied there is no likelihood of genuine agreement being reached after further deliberation.
- Experience has shown juries can often agree on a verdict if they are given enough time to consider and discuss the issues.
- If a juror has considered the evidence and listened to the opinions of other jurors, but they you cannot honestly agree with the conclusions of other jurors, then they must give effect to their own view of the evidence.
- The process of considering your verdict should involve weighing up one another’s opinions about the evidence and testing them by discussion.
- Experience has shown juries are often able to agree in the end. Please re-examine the matters on which they are in disagreement and make a further attempt to reach a verdict.
If the jury deliberate for 8 hours or more and cannot reach a verdict, the Judge can give them a Majority Verdict Direction. The judge will tell the jury the law permits a majority verdict in certain circumstances, which have now been met. A majority verdict means a verdict on which 11 of the jurors are agreed. If the jury cannot all agree on a verdict, the Judge will take a verdict on which 11 of the jurors are agreed.
JURY RETURNS “GUILTY” VERDICT
If the jury returns a guilty verdict, you will be sentenced by the Judge straight away.
JURY RETURNS “NOT GUILTY” VERDICT
If the jury return a not guilty verdict, you will be discharged and free to leave.
If the jury cannot reach a verdict, the Judge will discharge the jury. This means the jury are not made to reach a verdict and are let free. What this means is you will likely stand trial before a different jury at a time in the future. The matter will be mentioned in Court on another date and a new trial date will be set. This is unless the prosecution discontinues the charge, which in most cases is unlikely.
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