What Is a Criminal Trial? A Step-by-Step Guide for Defendants in Victoria
Jury Trials, Evidence and Verdicts in Victorian Criminal Cases
A criminal trial is a formal court process in which the prosecution must prove that an accused person is guilty of the offence charged.
In Victoria, jury trials for serious criminal offences are generally conducted in the County Court or Supreme Court. The judge manages the trial, determines questions of law and directs the jury about the legal principles it must apply. The jury considers the evidence and determines whether the prosecution has proved the charge beyond reasonable doubt.
This article explains how a Victorian criminal jury trial proceeds, the roles of the judge, jury, prosecution and defence, how evidence is presented and tested, and what can happen after the jury reaches a verdict.
Which criminal cases are heard by a jury?
Jury trials generally concern indictable offences that are prosecuted on indictment in a higher court. These can include serious offences such as homicide, serious assaults, sexual offences, armed robbery, serious drug offences and serious fraud or dishonesty offences.
Some indictable offences can instead be heard and determined summarily in the Magistrates' Court if the relevant legal requirements are met. The Magistrates' Court does not use juries in criminal cases.
Where a matter proceeds to a jury trial in a higher court and the accused pleads not guilty, a jury will ordinarily determine the charges unless a different procedure is authorised by law.
What is the role of the judge?
The judge manages the trial and makes decisions about questions of law.
This can include deciding whether evidence is admissible, ruling on legal objections, ensuring the trial is conducted fairly and giving the jury directions about the law.
The judge also explains the issues the jury needs to consider and responds to any questions from the jury during its deliberations.
In an ordinary jury trial, the judge does not decide whether the accused is guilty. That is the role of the jury.
What does the jury do?
The jury determines the facts of the case.
Jurors listen to the evidence, consider the exhibits and any agreed facts, assess the evidence of witnesses and apply the law as explained by the judge.
Jurors must decide the case based only on the evidence admitted at trial and the judge's directions. They must not conduct their own research, search for information about the case or use the internet or social media to investigate matters relevant to the trial.
Twelve jurors are generally selected for a criminal trial. In some circumstances, additional jurors may be empanelled, and a trial may continue with fewer jurors if a juror is discharged, subject to the requirements of Victorian law.
What happens before a jury trial?
Before the jury is empanelled, a number of issues may need to be resolved.
These can include the charges on the indictment, whether evidence is admissible, disclosure of prosecution material, witness arrangements, agreed facts, expert evidence and proposed jury directions.
The indictment is the formal document setting out the charges to be tried. At arraignment, the accused is asked to plead guilty or not guilty.
If a not-guilty plea is entered and the matter proceeds to trial, the jury is then selected and empanelled in accordance with the applicable procedure.
What is the presumption of innocence?
An accused person is presumed innocent unless and until the prosecution proves the charge beyond reasonable doubt.
The fact that a person has been charged or brought before a court is not evidence that they committed the offence. An indictment sets out allegations that must be proved at trial.
The prosecution generally bears the burden of proving every essential element of the offence. The accused does not ordinarily have to prove their innocence or establish an alternative explanation for the events.
There are limited circumstances in which legislation places an evidential or legal burden on an accused person in relation to a particular defence or issue. Where this applies, the judge will direct the jury about the relevant burden and standard of proof.
What happens at the start of the trial?
The prosecution will ordinarily give an opening address explaining the charges and outlining the case it intends to present.
The opening address is not evidence. It provides the jury with a framework for understanding the evidence that will be called.
The defence may also make an opening address.
The prosecution then begins presenting its evidence.
What evidence can be used at a criminal trial?
Evidence may be presented in many forms, including:
witness testimony;
documents and records;
photographs and CCTV;
body-worn camera recordings;
telephone and electronic data;
physical exhibits;
forensic evidence;
expert opinions; and
admissions attributed to the accused.
Not everything obtained during a police investigation can automatically be used at trial. Evidence must satisfy the applicable rules of relevance and admissibility.
The judge determines whether evidence can be admitted. The jury then decides what weight, if any, should be given to evidence that is admitted.
What is the difference between admissibility and weight?
Admissibility concerns whether evidence is legally permitted to be considered by the jury.
Weight concerns how persuasive or reliable the admitted evidence is.
Evidence may be admissible but ultimately given little weight by the jury.
Rules governing evidence can apply to matters including hearsay, opinion evidence, credibility evidence, tendency and coincidence evidence, identification evidence, admissions, privilege and improperly or illegally obtained evidence.
How are witnesses questioned?
A witness will generally give evidence-in-chief, followed by cross-examination by the opposing party. Re-examination may then occur to address matters arising during cross-examination.
Cross-examination allows the evidence to be tested. Questions may address inconsistencies, memory, perception, previous statements, bias, motive, identification and other issues relevant to the witness's account.
A witness's credibility and reliability are separate considerations. A witness may be honest but mistaken, or may be accurate about some matters but unreliable about others.
The jury can consider matters such as the witness's opportunity to observe an event, the passage of time, consistency with other evidence, possible bias or interest and whether the account is supported or contradicted by objective evidence.
Special rules and protections can apply to particular witnesses, including complainants in sexual offence proceedings and other vulnerable or protected witnesses.
Can the defence challenge the prosecution evidence?
Yes. Testing the prosecution evidence is an important part of a criminal trial.
The defence may challenge evidence through cross-examination, objections to admissibility, competing evidence and submissions about weaknesses or inconsistencies in the prosecution case.
The defence may call witnesses or present other evidence, but an accused person is not ordinarily required to prove their innocence or call evidence simply because the prosecution has presented its case.
Does the accused have to give evidence?
No. An accused person generally has a choice about whether to give evidence.
Choosing not to give evidence does not remove the presumption of innocence or transfer the prosecution's burden of proof to the accused.
If the accused does give evidence, that evidence can be tested through cross-examination and considered by the jury together with the other evidence.
What happens with expert and forensic evidence?
Expert evidence may be used where specialised knowledge is required. This can include evidence about DNA, fingerprints, toxicology, pathology, digital forensics, firearms or other specialised areas.
The jury is not required to accept an expert's opinion simply because it comes from an expert. It can consider the expert's qualifications, the material and assumptions relied upon, the methods used, limitations in the evidence and any competing expert evidence.
Forensic or scientific evidence must be considered together with the other evidence in the case.
What happens after all the evidence is heard?
Once the evidence has concluded, the prosecution and defence make closing submissions.
The prosecution may explain why it says the evidence proves each element of the offence beyond reasonable doubt. The defence may identify weaknesses, inconsistencies or reasonable possibilities that are inconsistent with guilt.
Closing submissions are not evidence. They are each party's explanation of how the jury should approach the evidence.
The prosecution retains the burden of proof throughout the trial.
What does the judge tell the jury?
Before the jury retires to consider its verdict, the judge gives directions about the law.
The directions can cover the presumption of innocence, the burden and standard of proof, the elements of the offences, available defences and the way particular types of evidence may be used.
The judge may also give directions about identification evidence, circumstantial evidence, admissions, tendency or coincidence evidence and the accused's decision whether or not to give evidence.
The jury must apply the law as directed by the judge.
How does the jury reach a verdict?
The jury retires to deliberate in private.
Jurors consider the evidence collectively and must attempt to reach a verdict in accordance with the judge's directions. They may have access to approved exhibits, transcripts or other material during deliberations.
The jury may return a verdict of guilty or not guilty on each charge. Where there are multiple charges, different verdicts can be returned on different charges.
A majority verdict may be available in some criminal trials after the jury has deliberated for a reasonable period. Under Victorian law, a majority verdict generally requires the agreement of all but one juror, although some offences require unanimity.
What happens if the jury cannot reach a verdict?
If the jury cannot reach a verdict permitted by law, the judge may discharge the jury.
A discharge of the jury is not a finding that the accused is guilty or not guilty. Depending on the circumstances, the prosecution may decide whether the matter should be tried again or resolved in another way.
A jury can also be discharged in other circumstances where continuing the trial would not be appropriate, such as serious juror misconduct or circumstances affecting the fairness of the trial.
What happens after a guilty verdict?
If the jury finds the accused guilty, the matter proceeds to sentencing.
Sentencing may occur immediately but is usually adjourned so that further material can be prepared, including reports or victim impact material.
The available sentence depends on the offence and the court's powers. Depending on the circumstances, outcomes can include a fine, community correction order or imprisonment, as well as other orders authorised by legislation.
Because the matter has proceeded to trial, there is no sentencing benefit for a guilty plea. However, an accused person must not be punished merely for exercising their right to have the prosecution prove its case at trial.
What happens after a not-guilty verdict?
A not-guilty verdict means the prosecution has not proved the charge beyond reasonable doubt. The accused is acquitted of that charge.
An acquittal does not necessarily mean that the jury decided that every prosecution witness was dishonest or that the events alleged did not occur. It means that the prosecution did not satisfy the required standard of proof.
Can a jury trial decision be appealed?
There are circumstances in which a person convicted after a jury trial may appeal against the conviction, sentence or both.
Depending on the circumstances, an appeal may involve issues such as an unreasonable or unsupported verdict, an error of law, an incorrect jury direction, an error concerning the admission or exclusion of evidence or a miscarriage of justice.
An appeal is not ordinarily a complete retrial. The appeal court considers the grounds of appeal, the trial record and the applicable legal principles.
Strict time limits and procedural requirements apply to criminal appeals.
Get legal advice about a criminal trial
A jury trial involves detailed rules about evidence, procedure and the way the prosecution must prove its case. Understanding the charges, the prosecution evidence and the issues that may arise at trial is an important part of preparing for a criminal proceeding.
Our criminal lawyers can provide advice and representation in jury trials and other criminal proceedings throughout Victoria.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.