The Law Handbook 2024

Chapter 3.7: Which court for which crime? 215 Ground rules hearings may be held in respect of certain witnesses (not the defendant) in cases involving sexual offences (including the complainant) or offences consisting of family violence or an indictable offence involving assault, injury or a threat of injury or common assault or aggravated assault (CP Act s 389A(1)). A ground rules hearings may be held when the witness is under 18 years old, has cognitive impairment or is a complainant in a charge of a sexual offence (CP Act s 389A(3)). It must be held in cases where the witness is a complainant in a sexual offence or where an intermediary is appointed (CP Act s 389B). It must be held before a contested hearing or committal (Magistrates’ Court of Victoria, Practice Direction 5 of 2023). If the defendant is represented, the legal practitioner must attend; if the defendant is unrepresented, the defendant must attend at the hearing (CP Act s 389D(1)(b)). At the ground rules hearing, directions may be made about the manner, duration and topics of questions to be asked of a witness. Directions may also be made as to the use of aids (for example models, plans, body maps) to help in communicating a question or answer. To assist witnesses who are under 18 years old or cognitively impaired adults, an intermediary (a professional with specialist communication skills) may also be used (CP Act s 389F). Trials Trials in the County Court and the Supreme Court are governed by chapter 5 of the CP Act. A trial is heard by a judge and a jury of 12 people. However, chapter 9 of the CP Act provides for temporary arrangements where a trial can be heard by a judge alone on an order made or applied for while a pandemic declaration (made pursuant to the Public Health and Wellbeing Act 2008 (Vic)) is in force. A judge-alone trial may be ordered only if each accused person consents and the court is satisfied that each accused has obtained legal advice on whether to give that consent; the court must also consider it to be in the interests of justice for the trial to be heard by a judge alone (s 420E CP Act). Appeals Appeals from the Magistrates’ Court to the County Court are dealt with in Part 6.1. Appeals on questions of law from the Magistrates’ Court to the Supreme Court are dealt with in Part 6.2. Classification of offences Criminal offences in Victoria are divided into three categories: 1 indictable offences; 2 indictable offences triable summarily; and 3 summary offences. Any offence that was known to the common law or expressed by statute to be a felony is now referred to as an indictable offence. A further category is serious indictable offences, which are indictable offences punishable on first conviction with imprisonment for life or for a term of five years or more (s 325(6) Crimes Act 1958 (Vic) (‘ Crimes Act (Vic) ’)). Whether an offence is classified as indictable or summary determines in which court, in what manner, and after what pre-trial procedures, the offence will be tried. Where an offence is described as a summary offence, or if the Act does not say what type of offence it is, then it is to be prosecuted before a Magistrates’ Court as a summary offence (s 52 Interpretation of Legislation Act 1984 (Vic)). Indictable offences triable only by a judge and jury (or a judge alone) ‘Indictable offences’ are serious crimes that are usually triable only by a judge and jury (or a judge alone), and are therefore heard in either the County Court or the Supreme Court. These offences may carry serious consequences for the convicted offender. Most of the matters tried in this manner are those crimes specified as such in the Crimes Act (Vic), although there are many other Victorian and Commonwealth Acts that create indictable offences. There are also a number of common law (i.e. not set out in a statute) indictable offences.