Defended Hearings

19 November 2025 in Criminal Law | 5 min read | skip to FAQs

This article explains how defended hearings operate in the NSW Local Court. It outlines the process of when a person pleads not guilty, the role of the magistrate, the rules of evidence, the stages of a hearing and the possible outcome.

A defended hearing is the procedure used to determine whether the prosecution has proven the alleged offence/s beyond reasonable doubt. It is the local court equivalent of a trial and similarly operates under the legal principle of the presumption of innocence.

What is a Defended Hearing?

A defended hearing occurs when an accused person enters a plea of not guilty to a criminal charge. Almost all criminal matters in NSW begin in the Local Court. Less serious offences, known as summary offences, must be finalised in the Local Court. More serious offences, known as Table one and Table two offences, may also be heard in the Local Court unless an election is made for the matter to proceed to a higher court.

At a defended hearing, the magistrate decides what facts have been proven, and whether the prosecution has satisfied the matter beyond a reasonable doubt. The magistrate listens to evidence, determines the credibility of witnesses, applies the relevant legal principles and then decides whether the accused is guilty of the offences.

When does a Matter Proceeds to a Defended Hearing

A matter will proceed to a defended hearing once a plea of not guilty is entered. People plead not guilty for a variety of reasons, including:

1. The accused denies the alleged conduct
2. The accused disputes the accuracy or reliability of the police evidence
3. A legal defence applies, such as self defence, duress, necessity or honest and reasonable mistake
4. The prosecution brief does not support the elements of the offence

Once the plea is entered, the court makes an order for the prosecution to serve on the defence a brief of evidence. Where the matter is a domestic violence offence, a hearing date will be allocated on that occasion. If it is not a domestic violence offence and the accused maintains a not guilty plea, a hearing date will be allocated on the reply date.

The Brief of Evidence

Before a defended hearing, the prosecution must serve on the accused the brief of evidence. This is a collection of material or documents that the prosecution intend to rely on. A brief of evidence can include:

1. Police statements
2. Witness statements (written or recorded)
3. Body worn video footage from police
4. CCTV recordings
5. Photographs and diagrams
6. 000 calls
7. Forensic or medical evidence
8. Expert reports

The defence then review the brief of evidence to identify any issues such as inconsistencies in the evidence, errors in the police narrative and gaps in the elements required for the offence.

The Evidence Act provides for what can be admitted into evidence at court, including the rules of evidence, such as hearsay, opinions, identification evidence, tendency evidence and expert evidence. Where there is a dispute about the admissibility of a particular piece of evidence, the court may hold a separate hearing to determine whether the evidence can be used.

How a Defended Hearing Works

A defended hearing has a structured sequence that ensures both the prosecution and defence have a fair opportunity to present their case.

Prosecution Case

The prosecution presents their evidence first as they carry the burden of proving the offence/s beyond a reasonable doubt. This usually involves calling witnesses, tendering documents and playing recorded interviews, BWV or CCTV.

Each witness that is called to give evidence may be cross examined by the defence. Cross examination is an important part of a hearing, as it allows the defence to:

1. Test the witnesses credibility
2. Expose gaps in the prosecution case through errors or inconsistencies
3. Highlight reasonable doubt

Once the prosecution has presented all of its evidence, it closes its case.

Defence Case

After the prosecution finalises their case, the defence may choose to call evidence, although it is not required to do so. The accused cannot be compelled to give evidence, and no inference of guilt can be drawn from an accused who elects not to give evidence during a hearing.

The defence may also call lay witnesses, expert witnesses, character evidence and any other evidence that contradicts or undermines the prosecutions case.

It is a common occurrence in defended hearings that the defence will not call any evidence and relies solely on the prosecutions failure to meet the burden of proof.

Closing Submissions

At the end of evidence, both the prosecution and defence have the chance to make closing submissions to the magistrate. These submissions focus on how the evidence should be interpreted, how the law applies to the facts and why the charge/s should be dismissed or proven.

Judgement

The magistrate must then make a judgement as to whether the prosecution has proven the charge/s beyond a reasonable doubt. If the magistrate is not satisfied that the offence has been proven, the accused will be found not guilty and the charge/s will be dismissed. If the magistrate is satisfied the accused is guilty beyond a reasonable doubt, the matter moves to sentencing.

Appeals

If the accused is not satisfied with the judgement by the magistrate at the hearing, they may lodge an appeal to the District Court. The defence may claim that there has been an error in the facts presented, the legal principles referred to or the severity of the sentence. The accused has 28 days to lodge an appeal to the District Court, who may then confirm, change or overturn the Local Court decision.

How can BSM Sydney Lawyers assist you?

Defended hearings can be complex and require the kind of legal expertise that the criminal lawyers at Brander Smith McKnight Sydney Lawyers have. Our criminal defence lawyers can advise you on your options, including whether to plead not guilty and defend the charges at a hearing. We will ensure your rights are protected and your defence is presented effectively. Our senior criminal lawyers offer a free-20 minute consultation.

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BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.