Criminal Procedure in NSW
What Occurs Between Mention and Hearing
The period between first mention and defended hearing is where most criminal cases are decided. This guide explains the procedural steps, strategic decisions, and preparation requirements from a defence practitioner's perspective.
CORE Defence Framework
The Prosecution Burden Map
This procedural guide applies CORE Defence Lawyers' Prosecution Burden Map to identify critical decision points where prosecution weakness becomes apparent.
The Journey From Mention to Hearing
In the Local Court of NSW, the period between first mention and defended hearing typically spans 3-6 months. During this time, the prosecution must serve its brief of evidence, the defence must analyse that material, and both parties must comply with procedural requirements designed to narrow issues for hearing.
From a defence perspective, this period represents the primary opportunity to identify weaknesses in the prosecution case, explore negotiated outcomes, and prepare effective cross-examination strategies.
Typical Timeline: Mention to Hearing
First Mention
Brief ordered, adjournment for service
Brief Service
Prosecution serves statement of facts, witness statements, exhibits
Defence Analysis
Review of evidence, identification of issues, expert consultation
Case Conference
Negotiations, potential resolution, narrowing of issues
Defended Hearing
Prosecution case, defence case, submissions, judgment
Brief of Evidence: What Police Must Provide
Under the Criminal Procedure Act 1986 (NSW), the prosecution must serve a brief of evidence containing all material upon which it intends to rely. The prosecution also has ongoing disclosure obligations for material that might reasonably assist the defence.
Standard Brief Contents
- Statement of FactsProsecution summary of alleged events (not evidence)
- Witness StatementsSigned statements from complainant, police, civilian witnesses
- Exhibit ListPhotos, CCTV, BWV, medical records, phone extractions
- COPS EventPolice database entry with timeline, attending officers, actions
- Criminal HistoryAccused's prior convictions (if any)
Common Brief Deficiencies
CORE Defence Lawyers applies systematic analysis to identify brief deficiencies that may affect the prosecution's ability to prove its case. Common issues include:
- Missing BWV footage - particularly relevant portions not included
- Incomplete 000 call recordings - only transcripts provided, not audio
- Absent witness statements - witnesses mentioned but not interviewed
- Delayed forensic results - DNA, fingerprints, drug analysis outstanding
- Redacted material - excessive redaction obscuring relevant context
Defence Analysis of Prosecution Material
Effective defence preparation requires systematic analysis of every element the prosecution must prove. CORE Defence Lawyers applies the Prosecution Burden Map to track evidentiary support for each element and identify weaknesses.
The CORE Defence Analysis Protocol
CORE Defence Lawyers Methodology
- 1Element MappingIdentify each element prosecution must prove beyond reasonable doubt
- 2Evidence AllocationAssign each piece of evidence to elements it purports to prove
- 3Weakness IdentificationApply Evidence Continuum to assess reliability of each item
- 4Gap AnalysisIdentify elements with insufficient or vulnerable evidentiary support
Case Conferences and Negotiations
Case conferences between prosecution and defence are a mandatory feature of NSW criminal procedure. These conferences serve to narrow issues, explore resolution, and ensure efficient use of court time.
What Happens at Case Conference
Case conferences typically involve discussions about:
- Charge negotiations - potential withdrawal or amendment of charges
- Agreed facts - matters not genuinely in dispute
- Witness requirements - which witnesses defence requires for cross-examination
- Admissions - matters defence is prepared to admit
- Hearing estimates - realistic time allocation for defended hearing
Strategic Considerations for Defence
From a defence perspective, case conferences require careful preparation. Revealing defence strategy is not required, but demonstrating awareness of brief weaknesses can facilitate favourable negotiations without compromising hearing position.
CORE Defence Lawyers approaches case conferences with clear instructions from the client about acceptable outcomes. This may include:
- Withdrawal of charges where evidence is insufficient
- Amendment to less serious charges reflecting actual conduct
- Agreed facts that limit aggravating features
- Sentence indications where appropriate under the Crimes (Sentencing Procedure) Act 1999
Hearing Preparation
Where matter proceeds to defended hearing, preparation intensifies in the weeks before the listed date. Key preparation tasks include:
Cross-Examination Preparation
Development of cross-examination themes targeting specific inconsistencies, applying the Credibility Assessment Matrix to identify vulnerability points.
Exhibit Analysis
Detailed review of BWV, CCTV, photographs, and documentary evidence for use in cross-examination and submissions.
Defence Evidence
Preparation of defence witnesses, consideration of whether accused will give evidence, expert report engagement where required.
Legal Research
Preparation of submissions on law, Evidence Act objections, and relevant authorities for anticipated evidentiary disputes.
Practitioner Note: Adjournments and Delays
NSW courts are increasingly resistant to adjournments without good cause. However, adjournments may be appropriate where prosecution has failed to serve complete brief, expert evidence requires time for preparation, or defence has recently been engaged. CORE Defence Lawyers advises early engagement to ensure adequate preparation time without requiring adjournments that may prejudice the client.