Criminal Procedure in Australia

Introduction

Criminal procedure in Australia governs the process by which the state brings criminal charges against an accused person and determines guilt or innocence. The procedure is divided between summary procedure (for less serious offences, heard in the Magistrates Court) and proceedings on indictment (for serious offences, heard in the District Court or Supreme Court before a judge and jury). Each Australian jurisdiction has its own criminal procedure legislation, though the core principles are broadly uniform across the country.

The criminal process is adversarial: the prosecution (representing the state) bears the burden of proving the accused’s guilt beyond reasonable doubt, and the accused is presumed innocent until proven guilty. The process is overseen by an independent judiciary, and the accused has fundamental rights, including the right to silence, the right to legal representation, and (for indictable offences) the right to trial by jury.

Arrest and Charge

Criminal proceedings typically commence with the arrest of a suspect by police, either with or without a warrant. A warrant is required for entry into premises but not for arrest in a public place where the police officer has reasonable grounds to suspect that the person has committed an offence. Following arrest, the person must be brought before a magistrate “as soon as practicable” (usually within 24 hours, unless an extension is granted). The police may also proceed by way of court attendance notice (summons), requiring the person to appear at court on a specified date.

At the first court appearance, the charge is formally read to the accused. The charge must identify the legal offence alleged and contain sufficient particulars of time, place, and circumstances to enable the accused to understand the case to be met. Defects in the charge may be fatal to the prosecution.

Bail

The bail system regulates the release of an accused person pending the determination of proceedings. Each state and territory has its own bail legislation (e.g., the Bail Act 2013 (NSW); the Bail Act 1977 (Vic)). The central question is whether there is an unacceptable risk that the accused, if released, would: fail to appear at court, commit a serious offence, endanger the community, or interfere with witnesses or evidence.

For less serious offences, there is a presumption in favour of bail. The prosecution must satisfy the court that detention is justified. For more serious offences (e.g., armed robbery, drug trafficking), the accused bears the burden of “showing cause” why bail should not be refused. For the most serious offences (murder, certain terrorism and firearm offences), the accused must demonstrate exceptional circumstances justifying release — a very high threshold. The court may impose conditions on bail (reporting to police, Surety, electronic monitoring, non-association orders).

Committal Hearing

For indictable offences, a committal hearing is held before a magistrate to determine whether there is a prima facie case against the accused — sufficient evidence to warrant a trial. The prosecution presents its evidence, and the defence may cross-examine prosecution witnesses. If the magistrate is satisfied that a prima facie case exists, the matter is committed for trial to the appropriate superior court. If not, the charge is dismissed.

The committal process serves a screening function, filtering out weak cases and narrowing the issues in dispute. In some jurisdictions, the defence may apply for a “permanent stay” of proceedings where the prosecution’s conduct is so unfair that a fair trial cannot be held.

Indictment

The indictment is the formal charging document filed in the superior court once a matter has been committed for trial. It sets out the counts on which the accused is to be tried, with sufficient particulars of the alleged offending. The indictment may be amended by the prosecution, but the defence is entitled to adequate notice of any amendment. The accused is arraigned — required to plead “guilty” or “not guilty” to each count.

Trial

A trial on indictment is heard before a judge and jury (see Trial by Jury, s 80 of the Constitution, discussed in the Criminal Glossary). The trial commences with the empanelment of the jury (12 jurors in criminal trials in most jurisdictions). The judge directs the jury on the law, and the jury determines the facts.

The prosecution presents its case first, calling witnesses and tendering evidence. Each witness is examined-in-chief by the prosecution, cross-examined by the defence, and may be re-examined. After the close of the prosecution case, the defence may make a no-case submission, arguing that the prosecution evidence is insufficient to sustain a conviction. If the submission fails, the defence presents its case (if it chooses to do so; the accused is not required to give evidence and may remain silent).

At the conclusion of the evidence, the parties present closing addresses to the jury. The judge sums up the evidence and directs the jury on the applicable law, including the burden and standard of proof (the prosecution bears the burden of proving every element of the offence beyond reasonable doubt). The jury then retires to consider its verdict.

Verdict

The jury must deliver a verdict of “guilty” or “not guilty.” In most Australian jurisdictions, a unanimous verdict is required for criminal trials, though some states permit majority verdicts (11:1 or 10:2) after a period of deliberation (e.g., in New South Wales, Victoria, South Australia, and Tasmania). If the jury cannot reach a verdict (a “hung jury”), the accused may be retried before a new jury.

If the verdict is “not guilty,” the accused is acquitted and discharged. The prosecution may not appeal an acquittal (the rule against double jeopardy, though limited exceptions exist in some jurisdictions for tainted acquittals or new evidence). If the verdict is “guilty,” a conviction is entered, and the matter proceeds to sentencing.

Sentencing Procedure

The sentencing hearing is conducted by the trial judge (in the superior courts) or the magistrate (in summary proceedings). The prosecution makes submissions on sentence, including the facts of the offence, any aggravating factors, and the applicable sentencing principles and guideline judgments. The defence makes submissions in mitigation, relying on the offender’s personal circumstances, any mitigating factors (remorse, rehabilitation, early plea), and the relevant sentencing statistics.

The court may receive a pre-sentence report from Community Corrections, providing an assessment of the offender’s risk of reoffending and suitability for community-based orders. A victim impact statement may be read by or on behalf of the victim, describing the physical, emotional, and financial impact of the offence. The judge then delivers a sentencing judgment, imposing the appropriate penalty.

Appeal

A convicted person has a right to appeal against conviction on a question of law (Criminal Appeal Act 1912 (NSW) and equivalent legislation in each jurisdiction). An appeal against conviction on a question of fact, or against sentence, requires leave of the appellate court. The prosecution may appeal against sentence (arguing that it is manifestly inadequate) and, in limited circumstances, against an acquittal or a directed verdict. The appellate court may dismiss the appeal, allow the appeal and quash the conviction, order a new trial, or (in sentencing appeals) vary the sentence.

Summary Procedure

Summary procedure applies to less serious offences (summary offences and some indictable offences that may be dealt with summarily). The proceeding is heard by a magistrate alone, without a jury. The procedure is less formal than a trial on indictment: the charge is read, the accused enters a plea, and the prosecution and defence present their cases. The magistrate decides both fact and law and delivers a verdict. Sentencing follows if the accused is convicted.

The Director of Public Prosecutions

The Director of Public Prosecutions (DPP) is the independent statutory officer responsible for the prosecution of criminal offences in each jurisdiction. The DPP (and the Office of the Director of Public Prosecutions, the ODPP) makes decisions about whether to institute proceedings, the charges to be laid, whether to accept a plea of guilty to a lesser charge, and whether to appeal. The DPP is independent of the government and the police in making prosecutorial decisions.

Plea Bargaining

Charge negotiation (often called plea bargaining) is the process by which the prosecution and defence negotiate an agreed resolution of the charges. The DPP may accept a plea of guilty to a lesser charge, withdraw some charges, or make submissions on sentence (including a factual basis for sentencing). The process is regulated by DPP guidelines and is supervised by the court, which must be satisfied that any agreed factual basis is accurate and that the resulting sentence is appropriate.