Step by step guide - Preparing for defended hearing

When you enter a plea of not guilty, the Court may order that the brief of evidence be served on (given to) you. For some offences, the police are not required to serve a brief of evidence. See more information below.

You don't have to have a lawyer when you go to court. However, if you want to plead not guilty​, it is a good idea to get a lawyer to represent you (or at least get some legal advice about your situation) because hearings can be complicated.

Before the hearing you should make sure you prepare and gather all the evidence you want to use to run your case. Evidence that you could use includes:

• evidence from witnesses
  
• photographs
  
• diagrams or maps
  
• receipts, bank statements
  
• mobile phone records
  
• in car video (ICV)
  
• closed circuit television (CCTV) footage
  
• body-worn video.
  

You should give yourself plenty of time to gather your evidence. You should also make sure you give your witnesses enough notice about the date of the hearing so that they can make arrangements to attend.

For more information, see Evidence.

Sometimes you or the prosecutor may need to ask the Court to postpone the hearing to another date. This is called an 'adjournment'. The Court may not agree to this unless there is a good reason.

If you need an adjournment, you will have to ask the Court to cancel (vacate) the hearing date and set another date for hearing. You can do this by filling out a form called 'Application to vacate a hearing date'. 

The Court and the prosecutor should receive this form at least 21 days before the hearing date, unless urgent circumstances arise after this time.

Instructions: Instructions for filling out an Application to vacate a hearing date

Sample: Sample Application to vacate a hearing date

If the Court agrees to an adjournment, they may make a costs order against the party who needed the adjournment. For more information, see Paying costs.

If you receive an Application to vacate a hearing date from the police prosecutor, you should get legal advice about whether you should agree to have the hearing moved to another day.

You may be able to get some of the evidence yourself or you may have to ask the prosecutor.

In some cases, you may need to issue a 'subpoena' (pronounced supeena). A subpoena is an order from the Court to a person or organisation to produce documents to the Court or attend court to give evidence on a certain date, or both.

For more information, see Step by step guide - Subpoenas.

If the Court ordered that the police serve a brief of evidence on you, you may be told to come back to court for another mention. This is when your case is listed 'for reply' and it will be about six weeks after your previous court date.

On the reply date the Court will want to know if the brief of evidence has been served on you.

If you have not received the brief of evidence, you should tell the Court. The Court will usually make further orders for the police to serve the brief of evidence. The Court may then either give you another reply date on which to check if the brief is served or just give you a hearing date. If you have not received the brief, you should get legal advice.

If you have received the complete brief of evidence, you should tell the Court if any documents are missing and if you have asked the prosecution to provide them.

When the Court sets the case for hearing, it will want to know:

• if you want any of the prosecution's witnesses to attend so you can cross-examine (question) them
  
• if you agree to the Court reading the statements of witnesses who will not be coming to court
  
• if you have any witnesses and how many there are
  
• how long you think the hearing might take
  
• if you need an interpreter.
  

The Court will usually ask you to fill out and hand up (give them) a form called 'Local Court Listing Advice'. This form tells the Court how many police witnesses you want to attend court so you can cross-examine (question) them.

Instructions: Instructions for filling out a Local Court listing advice

Sample: Sample Local Court listing advice

If you agree that a witness statement can be handed up (given) to the Court without the witnesses having to attend court, this means you are agreeing with what's in the witness statement. For more information, see Witnesses in Evidence.

If there is no order for a brief of evidence to be served, and therefore no reply date, you will need to tell the Court about what prosecution witnesses you want to cross-examine, what witnesses you have and if you need an interpreter, at the time the case is listed for hearing. This will probably be at the first mention. You can then arrange any subpoenas and prepare for the hearing.

• the brief of evidence (if one was served)
  
• your Court Attendance Notice (CAN)
  
• any photos, ICV or CCTV footage you have
  
• copies of any police incident reports
  
• any other evidence or documents that support your version of events
  
• your notes for speaking to the Court and questioning witnesses
  
• a notebook and pen to make notes
  
• highlighters and post-it notes to mark important information.
  

You should also make sure that your witnesses attend court on the hearing date. If you are concerned that they may not attend, you should arrange a Subpoena to give evidence well before the hearing date. For more information, see Step by step guide - Subpoenas.

You should take the original and three copies of any documents you intend to show the Court. The original will be kept by the Court. You will need to give one copy to the prosecutor, keep one for your records and have a spare.

Before you go to court for the hearing, it is helpful to write down what you plan to say. This may include:

• an 'opening address', which is a brief explanation of your defence, how many witnesses you will be calling and the documentary evidence you have to support your defence
  
• the questions you want to ask the prosecution's witnesses
  
• the questions you want to ask your witnesses
  
• what you want to say to the Court after all the evidence has been heard (called 'summing up' or 'making submissions').

When you are summing up or making your submissions, you should emphasise:

• the evidence that supports your case
  
• the weaknesses in the prosecution's case
  
• why the Court should find you not guilty.
  

Checklist: Checklist: Summing up

You could practice speaking to the Court with one of your friends or relatives. You could also go to a Local Court and watch some hearings. If you telephone the Court, you can find out the dates and times that hearings are held. ​