The Law Handbook 2024

216 SECTION 3: Fines, infringements and criminal law Indictable offences triable by either a judge and jury (or a judge alone) or summarily These offences – although considered serious and classified as indictable offences – may, with the accused’s consent, be heard by a magistrate. Section 28 of the CP Act allows for the hearing in the Magistrates’ Court of any matter punishable by a maximum term of 10 years’ imprisonment (level 5 imprisonment), or a fine of $120 000 (level 5 fine). Other indictable offences with maximum penalties higher than those referred to in section 28 that can still be heard in the Magistrates’ Court are listed in schedule 2 of the CP Act. Summary offences: Crimes triable only by the Magistrates’ Court Summary offences are almost always heard in the Magistrates’ Court. The summary procedure is in the CP Act (ss 27–94). The only exception is where the accused person is before the County or Supreme Court for an indictable offence; that court may also determine the summary offence if the accused consents and pleads guilty (s 243 CP Act). Section 25(1) of the Magistrates’ Court Act 1989 (Vic) (‘ MC Act ’) establishes the jurisdiction of the Magistrates’ Court in relation to summary offences. However, many summary offences (in particular, traffic offences) are dealt with without going to court, through the infringement notice system (see Chapter 3.1: Fines and infringements and Chapter 6.8: Driving offences). Under this system, an infringement penalty will be registered unless the person indicates they want the offence heard by a court, in which case normal court procedures apply. The hearing of summary offences can proceed in the absence of the person charged. However, a warrant is issued for their arrest if they are on bail and/or fail to appear at an indictable offence hearing. Charges for summary offences must be laid within 12 months of the alleged offence being committed. Charges for indictable offences can be laid at any time. Going to court A criminal prosecution is generally commenced by way of a ‘charge’, which specifies the crime the person is alleged to have committed. The person making the charge (usually a police officer) is called the ‘informant’. The informant files the charge with the court registrar. The charge may be given to an accused at the time they are arrested, following which they will either be remanded in custody or bailed to appear at court on a later date. Alternatively, the charge may be served by summons. The first appearance for a person charged with a criminal offence is always in the Magistrates’ Court. Many cases are actually dealt with by the Magistrates’ Court, but others must go to the County Court or Supreme Court for final hearing (see Chapter 1.2: An introduction to the courts). For all criminal cases, you will need to appear in person at the Magistrates’ Court. If you are in custody (i.e. on remand or a prisoner), you can appear online. For more information for lawyers about the online court, call the Magistrates’ Court or visit www.mcv. vic.gov.au/lawyers/online-magistrates-court. Prosecutors A criminal prosecution in the Magistrates’ Court is usually conducted by a police prosecutor. Police prosecutors have traditionally been senior police officers with some legal training who specialise in court work; an increasing number are now qualified lawyers. The role of police prosecutors is to ensure that the charges laid by the informant can be supported by the evidence, to negotiate with defence counsel, and to conduct the case itself. The Office of Public Prosecutions ( OPP ) is a statutory office comprising lawyers responsible primarily for the conduct of prosecutions in the Supreme and County Courts, and committal matters in the Magistrates’ Court. In Melbourne metropolitan Magistrates’ Courts, lawyers from the OPP appear at the filing hearing (the first hearing after an indictable charge is laid) – this is when a date is fixed for the service of the ‘hand-up brief ’ (all the witness statements) and a further date is fixed for the committal mention hearing (s 125 CP Act).