From Committal to Verdict: The Criminal Trial Process in NSW

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By Paul Gregoire and Ugur Nedim

A NSW District Court jury found former Australian Taxation Office deputy commissioner Michael Cranston not guilty of misusing his position to benefit his son on 15 February 2019. Following the verdict’s delivery, the 40-year ATO veteran held back the tears in the dock at Sydney’s Downing Centre District Court.

During the three week trial, the jury heard that Mr Cranston had tried to set up a meeting between the ATO and the company Plutus Payroll, with whom his son Adam had a business relationship. At the time, the ATO had frozen the company’s assets due to unpaid taxes.

The jury took two days to decide that Cranston was not guilty of the offences. District Court Judge Robyn Tupman said she found the case a “refreshing intellectual challenge” compared to the usual “disgusting” matters she’s confronted with.

But, whether a judge in NSW is presiding over a seemingly innocuous case like Cranston’s, or if the matter before them deals with more heinous crimes as in the case of Mohammed Khazma who stands accused of the brutal murder of a 2-year old girl, trial proceedings follow the same basic procedures.

The committal process

The procedure for cases dealt with on indictment in the NSW Supreme and District Court are set out in sections 45 through to 169 of the Criminal Procedure Act 1986 (the Act).

As a result of amendments to the Act that came into force on 30 April 2018, the committal process for a person who has been charged with a serious indictable offence has changed. Committal hearings have essentially been replaced with charge certification and case conferencing.

Nowadays, a senior prosecutor reviews a brief of evidence that has been produced by NSW Police Force or other investigatory body and then decides whether the case will proceed. If it does, a charge certificate is filed with the Local Court and a case conference is then held between the prosecution and defence.

A case conference certificate is then filed with the Local Court. The arraignment then takes place, which is when the charges are read out by a magistrate and the accused must enter a plea of guilty or not guilty. If they dispute the charges against them, the the magistrate will commit the case to the higher court for trial.

There may be a number of administrative court dates in the higher court before the case ultimately proceeds to a trial, the purpose of which is to determine whether the accused person is guilty or not guilty of the offence or offences charged.

Empanelling the jury  

Provisions regarding the jury are set out in the Jury Act 1977. The NSW Sheriff summons a jury panel into the court. Each prospective juror has a number. The judge’s associate picks numbered cards from a box, and the twelve individuals who have their numbers read out take a seat in the jury box.

Each potential juror is asked to stand and either take the bible to swear an oath, or take an affirmation. As they do, both the defence and prosecution have the right to challenge up to three jurors, who are then asked to leave and are replaced by another randomly selected panel member. The prosecutor has three challenges for each accused person on trial, which, for example, means they have nine challenges where there are three accused persons.

The presiding judge will then open by explaining the trial process to the jury, along with their role in it, the onus and standard of proof, the duty of jurors to only discuss the case with fellow jurors while in the court, and how they’re required to ignore media reports on the case.

The case of the prosecution

The judge will then ask the prosecution to address the court and provide a statement regarding the charges against the accused and present a brief outline of its case. It can also refer to the witnesses it intends to call, as well as the evidence they’re likely to provide.

The prosecution then calls its witnesses to the stand one at a time. The prosecution will question them first, a process known as examination-in-chief. After this, the criminal defence lawyer has a chance to question the witness, which is a process known as cross-examination.

If new facts arise during the cross-examination – facts that weren’t mentioned in the examination-in-chief – the prosecution can ask for a re-examination of the witness, which allows them to ask more questions in regard to the new facts only.

If at the end of the prosecution case, the evidence falls short of being capable of establishing each essential element of the offence, the judge has a duty to direct an acquittal, while the defence can ask for a “Prasad direction”, which is when the judge advises the jury that they can move to acquit without hearing anymore evidence.

The defence case

At this stage, the defence then decides which, if any, of its witnesses it will call to the stand. The accused is not required to give evidence, but it is an option. In the event defence witnesses are called, the same process of evidence-in-chief, cross-examination and possible re-examination will occur.

Closing addresses

Following the conclusion of the defence case, the prosecution will then address the court and state its case, putting forward that the offences charged against the accused have been proven beyond a reasonable doubt.

The criminal defence lawyer will then provide their closing address, during which they will submit why the jury should find that the prosecution has failed to prove its case.

The summing up

The judge will give his or her summing up of the case, which is a summary of what has transpired in the court. And while the judge may express views on matters, they should in no way influence the jury.

The judge will then provide directions to the jury, which will involve discussion of laws that are relevant to the case only. The judge will explain how these laws apply to the offences that the accused has been charged with.

The role of the jury

After the judge has finished, the jury will be asked to retire and consider its verdict. If they are unable to reach a verdict after a significant amount of time has transpired, the judge will give a ‘Black direction’ asking them to take their time and consider the evidence with an open mind. If the jury is still deadlocked, the judge can direct that a majority verdict may be given, which is when all but one of the jurors are in agreement.

If the jury is able to reach a verdict, the court will reconvene and a foreperson who has been selected by the jury itself, will stand and in response to the judge’s questioning deliver either a guilty or not guilty verdict.

If the jury is still deadlocked, a hung jury may be declared in which case the case will come to an end.

The prosecuting body will then need to decide whether to conduct as retrial.

Sentencing procedures

If the jury finds the accused guilty, a sentencing hearing will follow. If the judge requires a full pre-sentence report, it can take up to six to eight weeks before the hearing takes place. Otherwise, sentencing can happen at any time following the reading of the verdict.

In the case of Michael Cranston a few weeks back, the accused was able to walk out of court a free man. Following his acquittal, his former ATO director Tania Waterhouse called him up and offered him a contract as a tax consultant at her law firm.

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