What happens when a criminal law trial is set to happen? From the mouth of Perth’s most respected defence lawyer, Dr Marc Saupin.
In the last few vlogs that I’ve done, I’ve talked about what happens when you’re arrested by police, what happens at your first appearance in court and a few other things that happen when you are charged with a criminal offence. Today I want to talk about the trial preparation process. So the assumption is you’ve already been to court, you’ve entered a plea of not guilty and now we’re getting ready to go to trial. There are three main parts to this or players. There’s the prosecution that has to bring the case on behalf of the state. There’s the defence, of which I’m a defence lawyer, and we look after accused persons during the trial process. And thirdly there’s the court itself which has oversight of all matters that go before it. During the trial process really begins when the defence has been served by the prosecution with the prosecution brief. It’s usually a bundle of papers which have statements in there from various witnesses.
It has incident report sheets. It’s got maybe photographic evidence, forensic evidence and a whole range of documents that the police intend to rely on. On this case, the prosecution tends to rely on in court. The first thing we do is go through that prosecution brief and we sit down quietly in a quiet place and go through it to make sure that everything is there that should be there. If there’s anything that we think is missing such as, for example, a forensic report, we’ll then go to the prosecutor or in some cases in the early part of trial preparation, we’ll go to the investigating officer and ask them for a copy of the forensic report if it exists of course. It could be a blood splatter analysis, it could be a finger report, DNA report. Along those lines.
Once we are fairly certain that we’ve got the full extent of the prosecution brief and I must say that even right up to trial and before a court returns a verdict, the prosecutor is able to continually disclose new material to the defence. But putting that aside, once we’re reasonably satisfied that the prosecution brief is in its entirety, then my practice is to then get the client and the accused person and sit down and go through that prosecution brief with them. That’s a fairly quick process. Often these prosecution briefs can go to hundreds of pages and some might only be 10-15 pages. After that initial interview with the client, bearing in mind we’ve had a number of interviews with the client getting his or her side of the story so to speak, and we get the client in and we sit down with them and go through the prosecution brief to get their side of the story.
Now, bearing in mind we’ve already had two or three meetings with the client already to get their instructions, which is essentially their side of the story. At that meeting first trial proofing meeting or prior trial preparation meeting, as I said, we go through the prosecution brief page by page and then we leave it with the client. We give a copy to the client for the client to go away and contemplate it in his or her own environment. Then perhaps a month to six weeks later we get the client back in and we go through it again in detail. In the meantime, I would have had a number of conversations with the prosecutors to just tease out their take on the case, the state’s case and leaving very little to them about the defence case. Remember we have the right to silence and we do very little by way of communicating our side of things to the prosecutors and they’re aware of that.
Once we’re in a position where the client fully understands the case against them, once we’re in a position that we fully understand the case that must be tried. We understand the facts, the laws and everything that applies to it. We’re then in a position to say, we’re ready to go to trial. And usually, a trial date will have already been set and our trial preparation would complete at least two to three weeks before the commencement of trial. That allows us sufficient time to receive any further disclosure by the prosecution and to make sure we’ve got everything before us before we go to trial. That period of time when an accused person enters a plea of not guilty to the time they set foot into the court for their trial. The first day of trial, quite a lot of legal work goes into preparing the client or the accused person and the trial lawyer for a successful trial.
