TRIAL

1. Introduction
1.1    The Trial Process

STRUCTURE OF A TRIAL:

Phases of Trial: Pt 34 SCR
1.) Beginning Party is party bearing onus of proof (not always P!)
-Opening Address: Explain facts/issues, Evidence to come, Points of Law to be raised
-Adducing Evidence: Witnesses, Docs etc., in order party wants
2.) Responding Party
-If RP adduces evidence, will Open, Adduce, Sum Up and BP will Sum Up
-If RP doesn’t adduce evidence, BP sums up then RP addresses case

Civil Cases: Pt 33 SCR
1.    Parties file Notice to Set Down For Trial
2.    If ready, Court will set down
(a) Place of Trial
(b) Mode of Trial (Judge / Judge & Jury )
(c) Extent of Trial (till all questions and issues on every claim covered)
3.    If necessary, relevant party will file Notice to Requisition a Jury

Criminal Cases: see Criminal Procedure Act 1986
1.    Opening statements,
2.    Indictment will be read
3.    Then the accused will plead. 
4.    The Crown opens.  They will call a witness and examine them in chief then the defence cross examines, then the Crown can re-examine, then the defence can further cross-examine.  Evidence may be tended.  Then the Crown closes.
5.    The defence will then open and call witnesses.  There is no obligation to present evidence.  The accused does not have to give evidence.  If they do though, they will be the first witness for the defence.  The defence will then close. 
6.    The first closing address will be given by the Crown, then the defence, then the judge sums up and directs the jury on the evidence.  The jury then considers the matter and comes back with its verdict.

1.) Court will set down the matter for trial, and if not it is to be dealt with summarily
2.) May be dealt with by Judge or Judge & Jury, depending on offence and election of P/D to have a jury trial
3.) If necessary, Prosecutor will requisition a jury
ROLE OF JUDGE:
Fact and Law: Responsibility of Judges and Juries
•    The judge must be impartial (SCR14.10).
•    The judge can call witnesses but that is very rare (see Apostilides v Damic) 
•   
They can also question witnesses (s26) and can make legal rulings on evidence as well as direction on evidence.  They also sum up and at non jury trials they make up the verdict.

1.) Law is for Judge to decide, facts are for jury
2.) Some facts are for the judge to decide such as:
a) Some ‘reasonableness’ tests;
b) Admissibility questions depending on questions of fact
3.) Judge can tell jury how NOT to reason, but must take care in telling jury HOW TO reason to a conclusion of fact, especially in criminal trials

General Powers of the Court s11
(1)The power of a court to control the conduct of a proceeding is not affected by this   Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
•    The right to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases in which processes and procedures of the court may be’ converted into instruments of injustice or unfairness - per Walton v Gardiner and Ridgeway v R 

Court’s Control over questioning of witnesses s26
The court may make such orders as it considers just in relation to:
(a)the way in which witnesses are to be questioned; and
(b)the production and use of documents and things in connection with the questioning of witnesses; and
(c)the order in which parties may question a witness; and
(d)the presence and behaviour of any person in connection with the questioning of witnesses.

Parties may question witnesses s27
A party may question any witness, except as provided by this Act

Order of examination in chief, cross-examination and re-examination s28
Unless the court otherwise directs:                                                                            
(a)cross-examination of a witness is not to take place before the examination in chief of the witness; and
(b)re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.

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