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OUTLINE OF TRIAL PROCESSES

Stage of proceeding Summary Relevant law

Pre-trial legal In some cases, before a jury trial can start, there are legal issues which need to addressed. For example, there may be legal Criminal Procedure Act
argument questions about whether some of the evidence that the prosecution seeks to present is admissible (or allowable) under the 2009
rules of evidence, or how certain evidence can be used. Sometimes questions that the prosecutor or defence wish to ask a Evidence Act 2008
witness require leave of the court to be asked. Many of these issues are decided before a jury is empanelled to hear the
evidence. The judge decides the issue after hearing submissions from the parties. The party raising the issue usually makes Criminal Procedure Act
the first submission, followed by the other party responding to that submission. The first party then replies if there is 2009, Chapter 5, Part
something additional to raise. 5.1 to 5.6, Chapter 6
Division 4, Chapter 8
Evidence law is derived from a combination of statue (Acts of Parliament) and the common law (cases decided by Courts). Part 8.1 – 8.3

Sometimes there are issues about the law or the facts that require the judge to make a decision before the trial commences Evidence Act 2008,
with the jury. The judge might need to hear evidence from a witness before the trial. The judge will hear the evidence, make Part 3 - Admissibility of
findings about facts and apply the law after hearing submissions from both parties. This evidence does not form part of the evidence
evidence in the trial, and the jury is not present at this stage.

If the accused or the prosecution is not happy with a ruling made by the judge during the pre-trial argument or during the
trial, that party may seek leave to appeal that decision in the Court of Appeal. This is called an interlocutory appeal. The rules
relating to this are set out in the Criminal Procedure Act 2009, at sections 295-301. There are also cases decided by the Court
of Appeal regarding this type of appeal.

Arraignment Arraignment is the formal process by which an accused admits to being the person named on the indictment and pleads to Criminal Procedure Act
the charges on the indictment. The charge/s will be read out to the accused in open court by the judge’s associate and the 2009, ss 215-221
accused will be required to enter a plea of guilty or not guilty.

The accused must be arraigned in the presence of the jury panel, and the jury for the trial must be empanelled from that
panel.

If the accused pleads not guilty to any charge on arraignment in the presence of the jury panel, the date of the formal
arraignment is recorded by the court and marks the beginning of their trial.
This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.
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Jury Empanelment When a person is selected for jury service, through a legal document called a summons, they must attend the Jury Juries Act 2000
Commissioner’s Office. This group of prospective jurors is called the jury pool, and for each case where a jury is needed,
prospective jurors are randomly selected from the jury pool to form a jury panel.
An accused person cannot ask questions of or about the people in the jury panel before or during the empanelment process.
Jurors for a trial are selected randomly by ballot from the jury panel. When a juror is randomly selected, the associate will
state the juror number and the juror’s occupation.
An accused has the right to challenge a prospective juror. An accused can challenge up to three potential jurors, after their
number has been called, without needing to provide a reason. This means that the potential juror is immediately and
permanently excluded from being a juror on the trial.

For every challenge afterward, the accused must show cause for the challenge, that is, provide a reason to the Judge for why
the juror should be excluded.

The prosecution and judge also has a right to stand aside prospective jurors, which only temporarily excludes them from the
panel of jurors who may be selected.

Opening Addresses The trial commences with the Judge’s opening remarks to the jury. The judge addresses the jury to explain the trial process Criminal Procedure Act
and the jury’s role in that process. The judge may set out the approaches that the jury should take to assessing the evidence, 2009, s 222
for example regarding the credibility of any witnesses. The judge may also ask the jury to select a ‘foreperson’, who will be the
spokesperson if the jury has any questions during the trial and when the jury delivers its verdict.

After the judge’s opening remarks, an opening address is made to the jury by the prosecution and the accused is entitled to Criminal Procedure Act
make a defence response . 2009, s 224,

The purpose of the prosecution opening is to outline the prosecution case so the judge, jury and the defence can hear an
outline of the evidence the prosecution will lead in the trial. Criminal Procedure Act
2009, s 225
The defence’s response is to identify the issues in dispute between the prosecution and defence, rather than addressing
general matters about how the jury should approach the case. If the defence has filed and served a ‘response to the
prosecution opening’, the defence response made to the jury must not depart from what is set out in that document, unless Duong v the Queen
the Judge finds there are exceptional circumstances. [2017] VSCA 78.

This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.
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In the prosecution opening address and the defence response, the parties should not address the jury about the way in which
they might approach the evidence. These matters may be discussed in closing addresses. The Judge may interrupt an opening
address or defence response if an inappropriate comment is made.

Prosecution case The prosecution presents its entire case first, before the defence presents its case. The prosecution presents its case by calling
witnesses to give evidence in response to questions by the prosecution. This is called evidence in chief. Criminal Procedure Act
2009, ss232 - 233
The prosecution generally decides the order in which witnesses are called.

Defence has the opportunity to test the evidence of each witness by cross-examining the witness. This involves asking
questions about the evidence that the witness has given and putting the defence case to the witness (see below*).

Once cross-examination is complete, the witness may be re-examined by the prosecutor. Questions in re-examination are
limited to what has arisen from questions in cross-examination. The defence cannot ask further questions after that without
leave from the judge,
The ‘Browne v Dunn
*Important: When cross-examining a witness, the cross-examining party must put (i.e., say or explain) to the witness the rule’
nature of the case upon which it is proposed to rely to contradict the witness’s evidence, so that the witness has the
opportunity to offer an explanation and lead any evidence in rebuttal.
 Example: A prosecution witness gives evidence in chief that he saw the accused steal some money. The defence
wants to argue in its closing address that the witness is lying because he does not like the accused. To satisfy the
Browne v Dunn rule, defence must ask or put to the witness in cross-examination separate propositions that the
witness knows the accused, that they dislike the accused, that they are lying about what they saw for that reason,
and that they did not see the accused steal any money. The witness then has an opportunity to respond. Defence
may then argue in its closing address to the jury that the witness should not be believed and that their evidence is a Criminal Procedure Act
lie. 2009 ss353-358

Where the charges relate to a sexual offence or family violence offences, s357 of the Criminal Procedure Act 2009 prohibits
the accused him or herself personally cross-examining a protected witness. A protected witness may be the alleged victim, a
family member of the alleged victim, a family member of the accused or any other person the Court declares to be a
protected witness. In certain circumstances the Court may order Victoria Legal Aid to provide legal representation for the
purposes of cross examining a protected witness. If the accused refuses such help the accused will not be allowed to put
evidence before the court which contradicts that witness.

This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.
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Defence case When the prosecution has finished its case, the accused may do any of the following:
Criminal Procedure Act
(1) make an argument that there is no case to answer on the evidence presented in the prosecution case; 2009, ss226-231
(2) give evidence or call evidence from other witnesses; or
(3) choose not to give evidence or call any witnesses. Re No Case to Answer
see Doney v R (1990)
The accused does not have to present any evidence to support their case. The accused does not bear the burden of proving 171 CLR 207
that he or she is not guilty, unless he or she raises a specific defence to the charge (such as self-defence).

If the accused elects to give evidence or call witnesses, the prosecution must also satisfy the Browne v Dunn rule*.

Jury directions After all the evidence in the case has been put before the jury, the jury leaves the courtroom and the parties make Jury Directions Act
submissions to the judge on what directions ought to be given by the judge to the jury to guide the deliberation process (for 2015, s12
example, how to treat particular evidence). The types of direction that a judge can give are contained in the Jury Directions
Act 2015.
ss 15-16
In general, the prosecution and defence are responsible for requesting the judge to give a particular direction.

Section 13 of the Jury Directions Act 2015 provides that a self-represented accused is assumed to have asked for all directions
that may be available, and does not require the accused to request directions, subject to the trial judge finding good reasons
for not giving a particular direction.
s 14
Other than under section 13 of the Jury Directions Act. if the judge wishes to give a direction that the parties have not
requested, the judge must raise this for discussion with the parties. The judge must not give a direction that has not been
requested unless there are ‘substantial and compelling reasons’ for not doing so.

The judge must give a direction requested by a party unless there are good reasons for not giving it.

For all types of directions that may be requested and given, see Jury Directions Act 2015, Parts 4 – 7
 note: Jury Direction Act 2015, Part 5 – directions in proceedings that relate to sexual offences

Closing addresses Once the prosecution case and the defence case (if any) are complete (that is, all proposed evidence has been given), and Criminal Procedure Act
after the discussion about the directions to be given to the jury, both parties may each make a closing address. The 2009, ss234 - 237
prosecution makes their closing address first.

This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.
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The arguments in the closing addresses must be based upon the evidence that the jury heard or has seen in court. The Evidence Act 2008, s20
prosecutor must not comment on any failure of the accused to give evidence.

Judge’s Charge of After the prosecution and defence have made their closing addresses. the judge also addresses the jury, summing up the Criminal Procedure Act
the Jury evidence that was presented in the case, and giving any directions under the law as to how the jury should assess the 2009, s 238
evidence, including the requested directions. This is called charging the jury.

Once all of the evidence has been heard, the prosecution and defence have made their closing addresses, and the judge has
Jury Deliberation charged the jury and given all appropriate directions, the jury then retires to consider its verdict in the jury room.
and Verdict The jury may come back into the courtroom during their deliberations to ask questions of the judge, seek further directions
from the judge or be reminded of certain evidence that was presented. That can be done by replaying audio-visual recordings
of the evidence.

When the jury have reached their verdict, the verdict is taken in open court in the presence of the judge. The associate asks
two questions of the foreperson:
1. Have you agreed upon your verdict? (the foreperson will answer yes)
2. What do you say on Charge 1 of [name of charge] do you find [Name of Accused] guilty or not guilty?

When a jury returns a verdict of guilty on any or all of the charges, the accused is found guilty and it is entered into the
records of the Court.

When a jury returns a verdict of not guilty on all of the charges, the accused is acquitted of the offences and is released
unconditionally.

If the jury are unable to reach a verdict on a charge, they can be discharged from giving a verdict on that charge. If that
happens there can be another trial on that charge, with a different jury.

Post-trial: If the accused is found guilty on any of the charges, there will then be a sentencing ( or plea) hearing, in which the prosecution
Plea hearing & and defence make sentencing submissions to the judge. The judge must impose sentence on the offender.
Sentence
This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.
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Further resources In Victoria, the three main Acts relevant to a criminal trial are the Juries Act 2000 (Vic), the Criminal Procedure Act 2009 (Vic) the Evidence
Act 2008 (Vic), and the Jury Directions Act 2015 (Vic). Acts can be found and downloaded for no charge from the following websites:
www.austlii.edu.au
www.legislation.vic.gov.au/

Decisions in other cases can also be found at www.austlii.edu.au

Information about the elements of offences and other matters regarding the trial procedure can be found using the following online
resources:
Victorian Criminal Charge Book - https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19193.htm
Victorian Criminal Proceedings Manual - https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm
Uniform Evidence Manual - https://www.judicialcollege.vic.edu.au/eManuals/UEM/index.htm#26880.htm

This document is intended to assist a self-represented person to understand the processes of a criminal trial. It is not a complete guide to all issues that may arise and it does not list every
legislative provision that may be relevant.
The prosecutor and the judge cannot provide legal advice to self-represented people. The judge will ensure that the trial is fair and the accused understands what needs to be done and what
can be done, but cannot advise on other decisions that an accused must make.
Any person who is self-represented should take steps to ensure that they understand the processes of the trial and what is relevant or important in their particular case.