This guide is intended to inform and assist those who have been charged with an indictable offence that will be dealt with in the Supreme Court or the District Court in Queensland.
Of course, this guide can only give a brief overview of what is involved and it is no substitute at all for the years of study and experience that a good criminal lawyer brings to the table. It may provide an insight into selecting the right criminal lawyer and providing them with the right information to conduct the most effective defence.
Picking the Right Lawyer
What should become apparent is that every person charged with a serious offence needs to be selective when they choose the criminal lawyer that will represent them in the Supreme Court or the District Court in Queensland. Making the wrong choice could have disastrous long term consequences, not only in relation to the costs incurred but also for the ultimate outcome.
Some lawyers claim to be specialists in a range of largely unrelated fields of the law. The truth is, if their practice involves a mix of conveyancing, personal injuries, commercial law, family law and crime, they simply cannot keep abreast and be specialists in each of those areas. It is much more likely that that they are not specialists in any of them. That is not to say that those lawyers should be overlooked; their broad knowledge and experience may have a practical benefit in the conduct of the case; it just means that care needs to be taken in the selection of the other part of the legal team. In the superior courts, there is almost always a team comprised of a solicitor and a criminal law barrister.
It is not uncommon for an accused person to select their lawyer based upon public perception of which law firm is the best. Scratch a little deeper and make some enquiries of your own. Those reputations may have been earned a long time ago by people that have since died, retired, moved on to other firms, moved into management or moved onto more lucrative clients, leaving their inexperienced juniors to handle new clients. Find out which individual lawyer will have carriage of your matter and ask for details of that individual’s experience in criminal law jury trials.
Once the legal team has been selected, monitor their work and reconsider your position if changes occur to the defence team. Solicitors move from one firm to another, sometimes the barrister that was briefed has a conflict. When a member of the legal team changes, re-evaluate the skills and experience of the lawyers you are left with.
At the Police Station
If you have been arrested, then the chances are that you will need to secure the services of a lawyer quickly. Most lawyers will tell you not to give a police interview – ever. Unfortunately, its not that simple.
If the offence is one that you are ultimately going to plead guilty to, then co-operating by taking part in a police interview goes a long way to mitigate or lessen the punishment that will be imposed. It is usually the case that if you have not participated in a record of interview at the beginning of the criminal law process, you will probably never be asked to do so at a later time. As well as the benefits that come from making confessions or admissions during an interview, special sentencing discounts can be attracted where a person makes a confession or admission about an offence not otherwise known to police or where they provide evidence against another person that is likely to lead to their conviction.
Even if you intend to plead not guilty and go to trial, participation in a record might of long term benefit to you. If it is played at the trial, and they usually are, they provide an opportunity for the jury to see and hear your version of events without you having to get into the witness box and give evidence which has some serious downfalls.
Sometimes, a record of interview should simply not be given.
One answer does not fit all. Your criminal law team should apply their minds to your factual scenario, to you personality, education and experience and to the likely course of your matter before they give you advice to act either way.
Committal
Historically, committals were an opportunity to test and explore the evidence without the risk of the jury hearing information that might be damaging and a magistrate could refuse to commit a charge if it did not have a reasonable likelihood of conviction.
The committal process has been significantly curtailed in Queensland and it is now necessary to make an application in order to cross examine a prosecution witness at a committal. If the application is granted, cross examination will usually be limited.
Alibi and Experts
If you intend to lead evidence of an alibi, that you were somewhere else for example, then you are required to give notice in writing to the Director of Public Prosecutions of the name and contact details of the alibi witness (section 590A of the Criminal Code). That notice has to be given not later than 14 days after the committal. If it is not given, then you can be prevented from calling the alibi witness at your trial.
Section 590B of the Criminal Code requires you to give notice of the name of any expert you intend to call to give evidence as well as details of any finding or opinion the expert proposes to give evidence about. This notice has to be given in writing as soon as it is practicable to do so.
Disclosure
As soon as the committal brief is delivered, an assessment should be made of the disclosure that has been provided.
The brief will contain the written statements of the witnesses that the prosecution intend to rely upon to prove their case. It should also include a copy of each exhibit intended to be relied upon, such as photographs, reports, analysis certificates etc.
The question for the defence team to determine at that point in time is often what has not been provided. If something fundamental is missing, then it might justify a submission being made against the committal of one or more charges. If it is not so fundamental, then it is a matter that would warrant a request being made for further disclosure.
Some often fruitful areas for further disclosure by the prosecution include:
· Police notebooks and official diaries;
· Applications for search warrants or for post search approval orders;
· Digital recordings (hand held);
· Criminal history of a prosecution witness;
· Copies of statements that the prosecution took but do not intend to rely upon;
· The brief given to a prosecution expert;
Subpoenas
There are limits on the disclosure that must be given by the prosecution, beyond which it is necessary to conduct your own investigations. Thinking about the nature of the case, it is sometimes fruitful to have a subpoena issued requiring a person to produce documents, such as:
- · Queensland police for material not directly relevant to the charge;
- · Queensland Health
- · Child Safety;
- · Telephone companies;
- · Organizations holding CCTV footage
The list of possible recipients is almost endless and depends upon the nature of the case against you and the nature of your defence.
In the District Court, subpoenas to produce documents require an Order from the court before they can be issued. An order is not required in the Supreme Court, unless the Registrar refuses to issue it for some reason.
Keep in mind that if you want to use any of the documents produced on subpoena, then you have to be able to “prove” them. Usually that means that one of the witnesses has created or at least written upon the document, or they might be the keeper of the document. If not, then you may need to subpoena an appropriate person to attend and to give evidence about the documents you want to enter into evidence.
You might also need a subpoena to attend to give evidence for a witness that you want to come along and give evidence on your behalf, just to make sure that they attend.
Subpoenas to attend usually do not need an Order in either court, unless the Registrar refuses to issue it for some reason.
Character Evidence
Obtaining the criminal history of a prosecution witness was mentioned earlier and their most obvious use is to attack the credit of the witness so that the jury are less likely to believe them. Again, thought needs to be given to the nature of the case to be answered, but often the kind of criminal history that will have the most impact is the kind that goes to their honesty – so look for fraud, stealing and other dishonesty offences. If it is intended to suggest that a prosecution witness is in fact the perpetrator, then perhaps convictions for similar offences might be relevant.
Subpoenas were also mentioned earlier and often they are issued to secure information that goes to the credit of a prosecution witness. Similar considerations would then apply.
Keep in mind that if the character of a prosecution witness is attacked, then the character of the accused is open for similar scrutiny if he or she gives evidence. The usual rule that an accused’s criminal convictions or past bad behaviour cannot be disclosed will not apply.
It is a balancing act and careful consideration needs to be given before you launch an attack on a prosecution witness’s chartacter.
Pre-Trial Issues
A pre-trial hearing may be required for many different reasons including applications:
- · to exclude evidence which is inadmissible, or which is admissible but should be excluded in the judge’s discretion;
- · to stay the prosecution either temporarily or permanently;
- · for further disclosure;
- · for particulars of the charge/s;
- · for the issue of subpoenas;
- · for leave to adduce certain evidence at the trial, such as sexual history, the identity of a notifier to Child Safety etc;
- · for directions on the conduct of the trial;
- · and the list goes on…..
At the Trial
At the appointed time for the trial, the Accused is in the dock and the lawyers are at the bar table. The jury panel is brought in and then the following steps occur:
- Arraignment. The Accused stands and each of the charges are read to him or her with a plea, usually not guilty, being made to each of the charges in turn;
- Jury Selection. Once the jury has been selected, the prosecutor reads the name of the witnesses to be called and the jurors are asked of there is any reason they cannot be impartial.
- Opening Address/es. The prosecution open their case but telling the jury what it is about and a summary of the evidence that each of the witnesses is expected to give. Defence can seek leave to give an opening statement; see R v Nona [1998] 1998 QCA 312.
- The Crown Case. The prosecutor will case each of the prosecution witnesses to give their evidence. The defence then cross examine each of them in turn and there is a limited right for the prosecutor to ask further questions on matters arising from the cross examination.
- No Case to Answer. After the prosecution has closed its case, the defence can make a submission that there is no case to answer.
- Giving Evidence. If a “no case” submission is not made, or if it is rejected, then the Accused is asked whether they intend to give evidence or to adduce evidence from other witnesses.
o If they do, then an opening address can be given and then witnesses for the defence are called to give evidence, to be cross examined and if appropriate to be re-examined. If evidence is led of the Accused’s good character, or if the defence has attacked the character of a prosecution witness, then the Accused bad character and their criminal history can be exposed by the prosecution. A consequence of the Accused calling evidence in Queensland is that they lose the right of making the last address.
o If the Accused does not adduce any evidence, then the trial moves straight to closing addresses and the prosecutor has to go first, with the Accused getting the right of last address.
- Closing Addresses. The order in which closing addresses are given has been dealt with above. The closing address is the opportunity to bring everything together in one logical, convincing story to show the jury why they should have a reasonable doubt about the Accused’s guilt. It is the opportunity to point out to the jury all of the inconsistencies in the prosecution case, to remind them of things aid or done by prosecution witnesses that reduce their reliability, to point to evidence that supports a legal defence to the charge/s.
- Summing up. The trial judge gives the jury directions about matters of law affecting their deliberations. Sometimes this includes warnings about the evidence of prosecution witnesses. The trial judge then gives a summary of the competing arguments for the prosecution and for the defence before sending the jury out to deliberate on their verdict.
The Verdict (incl sentencing)
Finally of course there is the verdict of the jury. In Queensland it must be a unanimous verdict – all jurors must agree on guilt or they must all agree on not guilty. For most charges in Queensland (not those carrying life sentences) a jury that has been deliberating for 8 hours (not including breaks) can be directed to reach a majority verdict in which only 1 juror may dissent.
Once a verdict is reached, the jury is brought into the court room and they are asked to confirm that their verdict is unanimous. They are then asked in relation to each charge whether the verdict is guilty or not guilty.
If the verdict is not guilty, then the Accused is discharged and is free to go.
If the verdict on one or more charges is guilty, then the trial judge will usually proceed directly to sentencing – so be prepared just in case.
Picking the Right Lawyer
It should be apparent from this short guide that selection of the right lawyer from the outset can have a big impact upon how successful you are at the trial. If the lawyer that you select does not do the necessary ground work, or does not know the many rules of practice and evidence that can affect the trial, it could have disastrous long term consequences for you, not only in relation to the costs incurred but also for the ultimate outcome.
Getting to a verdict of not guilty usually takes a lot of preparation and a lot of knowledge about criminal law, practice and evidence.
Barrister-at-Law
Level 15 Quay Central
95 North Quay
Brisbane Qld 4000
Telephone: 0402 227 498
Facsimile: 1800 768 690
Email: alex@alexnelson.com.au
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