Chapters

Prosecution and Defence

If the defendant pleads ‘not guilty’ the case will be listed as a defended hearing.

The Prosecution Case

On the day of the hearing, the magistrate will first call on the police prosecutor (when the charge has been laid by the police and not by a private citizen) to present the case for the prosecution. The prosecutor normally does not make an opening statement, but calls on the police witnesses and other witnesses to give their evidence one by one. Each witness enters the witness box near the magistrate, and is required to take an oath on a bible, or an affirmation to tell the truth (Justices Act 1959 (Tas), s39). The prosecutor then asks the witness questions (called ‘evidence in chief’).

When the prosecutor is finished, the defendant (or their lawyer if represented) is entitled to ask questions in ‘cross-examination’. The magistrate will decide whether questions asked by either side are permissible in terms of the rules of evidence for criminal court hearings.

The Defence Case

When all the witnesses for the prosecution have been heard, and the prosecution case has closed, the defendant may submit to the magistrate that they have no case to answer. In this submission, the defendant asks the magistrate to dismiss the prosecution's charge, without even hearing from the defendant, on the basis that the prosecution has not produced any evidence in law to support the charge. If the magistrate agrees with this submission, the charge will be dismissed and the case against the defendant will be over.

If the magistrate does not agree with this submission (if it is made), that there is no case to answer, the magistrate will call upon the defendant to present their case. The defendant may give evidence by going into the witness box, taking the oath or affirmation and answering any questions, asked firstly by their lawyer and then by the prosecutor in cross-examination.

The defendant cannot, however, be forced to give evidence. The defendant may also call witnesses who can give evidence. If the defence wishes to address the magistrate about the case, this should be done at the opening of the case. Neither side has a right to address the court at the close of the evidence without leave  (Justices Rules 2003 (Tas)rule 35(1)(f)).

Defences

There are a number of different defences available to the defendant. If appropriate, a defendant may rely on more than one defence as alternatives, but must be careful not to prejudice a good defence by throwing in weaker and conflicting defences. Some common examples of general defences are as follows.

Mens Rea

This is a Latin term meaning ‘guilty mind’. It is presumed to be an aspect of all offences unless displaced by the wording of the Act. Where the state of mind is an ingredient of the crime, such as murder, the prosecution has to prove not only that the defendant did the act, but also that they had a guilty mind (they knew the wrongfulness of the act). However the absence of mens rea is an aspect of defence.

For instance, in a case of fraud there must be the intention to defraud or recklessness. So in a case of social security fraud where the defendant has under-declared their income, the defence might be that the accused provided Centrelink with net earnings instead of gross earnings under the mistaken belief that this was what was required. If the court believes this, then the mental element necessary for fraud would not be made out.

Failure to identify the defendant

The prosecution may try to prove that it was the defendant who committed an offence by means of eye witnesses, identification parades, fingerprint evidence and handwriting evidence. The defendant will attempt to point out weaknesses in the prosecution’s evidence of identification.

Alibi

Alibi evidence is used to show that the defendant could not have been at the place where the offence is supposed to have been committed, because at the time they were somewhere else. This evidence may be given by the defendant and other witnesses on the defendant’s  behalf.

Intoxication (Drunkenness)

Being affected by alcohol or drugs is no defence to a serious crime unless the defendant was so intoxicated that they were incapable of reason, in which case a crime of specific intent such as murder may be reduced to manslaughter.  This is therefore a limited defence.  However, intoxication is relevant and admissible regarding minor offences where intent or knowledge on the part of the defendant is an element of the charge.

Mental illness

It is a defence that the defendant was mentally ill at the time of the alleged offence. However, the result of a successful defence on this ground is that the defendant is detained in a mental hospital ‘during the governor's pleasure’. Because of the serious consequences, mental illness is rarely raised as a defence, and only in the most grave cases such as murder. Expert medical evidence is necessary to establish this defence.

Provocation

Provocation can only be used as a defence to reduce the charge of murder to manslaughter. In any other case, it cannot be used as a defence, although it can be taken into account by the court after conviction when considering an appropriate penalty. Provocation is not a defence to a charge of assault.

Self-defence

A person may be entitled to use force to defend themself or another person or even their property from attack by someone else. In defence of property, the force used must be reasonable, an issue of fact for the court to determine. Raising a defence of self-defence for murder, it must be established that the defendant was assaulted with such force as to cause him/her to think they might be killed or suffer grievous bodily harm. However, in defence, for assault, it is what the accused believed upon reasonable grounds was necessary in self-defence.

Consent

In some cases of assault and sexual assault, it is a defence that the complainant consented to the alleged assault.

Necessity

Necessity may be raised as a defence where the act of the defendant was necessary to avert serious danger, and the action taken was in proportion to the danger which the defendant was trying to avert. The defence of necessity is approached by courts with considerable caution.

Duress

A defendant may raise the defence of duress where threats of immediate death or serious personal violence were so great as to overbear their resistance to  carrying out the criminal act. The overpowering of the defendant's will must have occurred at the time the criminal act was committed.

Infancy

Criminal responsibility of children is dealt with under Youth.

Failure to prove beyond reasonable doubt

The defendant may concentrate on putting the prosecution to the test of proving their case beyond reasonable doubt. The defence will attempt to show up any inconsistencies and shortcomings in the prosecution case.

The Prosecutor's Reply

When the defence case is closed, the prosecution may give evidence in reply to any new point raised in the defence case. This is called 'evidence in rebuttal' and is very rarely permitted.

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