Facing a trial in NSW
Where trials are held, the jury, the burden of proof, the six stages from opening to verdict, the decision whether to give evidence, and the appeal.
A trial is a hearing of a serious charge in the District or Supreme Court, usually before a jury of twelve, sometimes before a Judge alone. The prosecution must prove every element beyond reasonable doubt and you need prove nothing. A trial takes months to prepare and days or weeks to run, and it is the most complex proceeding in the system. It is not a self-representation matter under any circumstances.
- Confirm your matter is on the trial pathway: strictly indictable, or a table offence where an election was madeAfter charged guide
- If you do not have a lawyer, apply for Legal Aid today; trial funding has its own tests and takes timeSection 7 of this guide
- Start a written timeline of events and people, for your lawyer onlySection 7 of this guide
This entire guide is a description of a process you should not attempt alone. It exists so that you understand what your lawyer is doing and why the decisions they ask you to make matter.
| Where | District Court for most indictable offences; Supreme Court for murder, manslaughter, large commercial drug supply and the most serious matters |
| Who decides | A jury of twelve on the facts; the Judge on the law. Judge alone on application |
| Burden | Prosecution, every element, beyond reasonable doubt |
| Your evidence | You cannot be compelled; the choice is yours with advice |
| Verdict | Unanimous, or 11 to 1 after deliberation in some cases |
| Appeal | Court of Criminal Appeal, on error, with leave |
1Where trials are held
Start here
Trials are held in the District Court for most serious indictable offences and in the Supreme Court for murder, manslaughter, large commercial drug supply and the most serious matters. A matter reaches trial after committal from the Local Court, described in the guide on the early guilty plea process, where no plea has been entered. Local Court hearings before a Judge alone are called defended hearings, not trials, and are covered in the guide on pleading not guilty.
Legal basis: Criminal Procedure Act 1986 (NSW) Chapter 3; District Court Act 1973 (NSW); Supreme Court Act 1970 (NSW). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2The jury
Who decides
A jury of twelve people is selected from the community, empanelled after challenges by both sides, and sworn to decide the facts on the evidence. The Judge directs them on the law, and they apply it. A verdict must be unanimous, but where the jury has deliberated for at least eight hours and the Judge is satisfied they will not reach unanimity, a verdict of eleven to one can be accepted for most offences other than murder and Commonwealth offences. Either side can apply for a trial by Judge alone, which is granted where the Judge considers it in the interests of justice, and which is common where the evidence is technical or pretrial publicity is a concern.
Legal basis: Jury Act 1977 (NSW) ss 55F (majority verdicts); Criminal Procedure Act 1986 (NSW) s 132 (trial by Judge alone). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
3The burden and standard of proof
The foundation
The prosecution bears the burden of proving every element of every charge beyond reasonable doubt, from the first minute of the trial to the last. You bear no burden, need call no evidence, and need prove nothing, with narrow exceptions such as the deemed supply rule in drug cases and the defence of mental illness. Beyond reasonable doubt is the highest standard known to the law. It does not mean beyond any doubt at all; it means that after considering all the evidence the jury is left without a doubt that a reasonable person would hold. If they have such a doubt, they must acquit.
Legal basis: Woolmington v DPP [1935] AC 462; Evidence Act 1995 (NSW) s 141. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
4The six stages
Start to finish
| Stage | What happens |
|---|---|
| 1. Arraignment and empanelment | The charges are read, you plead, the jury is selected |
| 2. Opening addresses | The prosecution outlines its case. The defence may open briefly or reserve |
| 3. The prosecution case | Each witness is examined by the prosecutor, cross-examined by your counsel, and re-examined. Exhibits are tendered. Expert evidence is called. This is usually the longest stage |
| 4. The defence case | If evidence is called, including your own, it is led and cross-examined. Or no evidence is called and the defence rests on the prosecution's failure |
| 5. Closing addresses and summing up | Both sides address the jury on what the evidence shows. The Judge then sums up: directs on the law, summarises the evidence, and explains the questions the jury must answer |
| 6. Verdict | The jury deliberates, in private, for as long as it takes, and returns a verdict on each charge |
5Whether to give evidence
The decision
You cannot be compelled to give evidence, and the Judge will direct the jury that your silence is not evidence of guilt. But if you do not give evidence, the prosecution's account of what you did goes unanswered by you, and where the case turns on your state of mind or your version of a conversation, that can matter. If you do give evidence, you are cross-examined by an experienced prosecutor on every inconsistency between what you say, what you told police, and what the exhibits show. This is one of the two or three most consequential decisions in a trial. It is made with your counsel, on the evidence as it has actually come out, usually at the close of the prosecution case.
Legal basis: Evidence Act 1995 (NSW) ss 17, 20; Azzopardi v The Queen (2001) 205 CLR 50. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
6After the verdict
Outcome and appeal
A not guilty verdict is an acquittal. The prosecution cannot appeal it and cannot retry you, except in narrow circumstances involving fresh and compelling evidence for the most serious offences. A guilty verdict leads to sentence, usually at a later date after a sentencing assessment report. A conviction can be appealed to the Court of Criminal Appeal on grounds that the verdict was unreasonable, that there was an error of law, or that there was a miscarriage of justice, and a sentence can be appealed as manifestly excessive. Leave is required and the time limit is 28 days from sentence, with extensions available.
Legal basis: Criminal Appeal Act 1912 (NSW) ss 5, 6, 10; Crimes (Appeal and Review) Act 2001 (NSW) Part 8 (retrial after acquittal). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
7What to do now
Action
If you do not have a lawyer, apply for Legal Aid today; funding for a trial has its own tests and takes weeks to approve. Prepare for your lawyer, not for the court: a timeline of events, a list of every person who was present or who might know something, any documents, messages or records you hold, and a note of anything police said to you at the time. Keep it in one place and give it to no one else. And clear the dates. A trial is listed months out and can run days or weeks, and you must be there for all of it.
If your matter is heading to trial
There is no version of a District or Supreme Court trial that a person should run alone. Apply for Legal Aid the day you are charged, or book a consultation with the lawyers who built Standard to understand your position and what representation will involve.
Request a consultationGeneral information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.