The Law Handbook 2024

Chapter 3.7: Which court for which crime? 217 OPP lawyers also appear in committals in regional courts; local police prosecutors appear only at filing hearings. The OPP has power to take over the conduct of a prosecution in the Magistrates’ Court from a police prosecutor. This tends to happen in complex matters and where police officers are being prosecuted. The Director of Public Prosecutions shares, with a number of senior barristers appointed as Crown Prosecutors, responsibility for signing ‘indictments’ (s 158 CP Act). An indictment lists the charges against the accused in County or Supreme Court proceedings. Proceedings commence upon the filing of indictments with the court. InCommonwealth criminal proceedings this document is also called an indictment. Lawyers employed by the OPP (OPP preparation officers) are responsible for the preparation of all criminal trials. A Crown Prosecutor, or a private barrister retained by the OPP, appears in court to conduct the trial. The OPP has a Witness Assistance Service that provides information about the courts and explains the role of witnesses in court procedures. In particular, the service is intended to assist victim witnesses of sexual and serious violent assaults. It also attempts to assist family members of deceased victims. For the Witness Assistance Service’s contact details, see ‘Contacts’ at the end of this chapter. Mention procedure In the case of summary offences, or indictable offences triable summarily, a defendant is bailed, remanded or summonsed to appear at the Magistrates’ Court. The first hearing date is a ‘mention’ date (s 53 CP Act). Usually, the case can only be dealt with if the defendant is pleading guilty, as neither the informant nor prosecution witnesses attend court on the mention date. If the defendant is pleading not guilty, the case will be adjourned to a summary case conference (s 54) or to a contest mention hearing, which gives the parties the opportunity to negotiate issues in dispute, prior to the full hearing of the case (s 55) (see ‘Criminal Procedure Act’ above for further information). At the request of the defendant, the hearing can also be adjourned, even if the defendant is pleading guilty. The courts now take a much stricter view of when to allow adjournments, so that any more than one adjournment is unlikely to be allowed without the matter being considered by a magistrate. When a defendant is facing summary charges and is not on bail, they do not need to attend court on the mention date if prior arrangement is made with the court registrar (s 20) (this can be done by telephone). A defendant who is charged with an indictable offence or is on bail will have to attend court on the mention date, even if prior arrangement has been made to adjourn the case. If you are unrepresented, you can get an adjournment to obtain legal representation or legal aid (s 33). In relation to some summary offences, or indictable offences triable summarily, a defendant may seek to have the case dealt with by undertaking a ‘diversion program’ (s 59). This requires the consent of the informant and must be deemed an appropriate course by the magistrate. If so, a defendant will be required to acknowledge to the court responsibility for the offence and the charge(s) will be adjourned until after the defendant has participated in the diversion program. That diversion program may involve apologising to or compensating the victim, attending counselling or treatment, performing community work, abiding by a curfew, not associating with certain people, making a donation to a specified charity, or attending a defensive driving course. After the task is completed, the court will discharge the defendant without any finding of guilt. For more information about diversion programs, see Chapter 1.3: Sentencing in the Magistrates’ Court, and Chapter 3.2: Drug offences. For more information onMagistrates’ Court procedures, visit www.mcv.vic.gov.au. Committal procedure In cases to be heard by a judge and jury the defendant is first subject to a committal hearing in a Magistrates’ Court. The committal procedures set out in chapter 4 of the CP Act (ss 95–157) require the defence to show that witnesses can give relevant evidence, and to justify their attendance at the hearing. A document called a ‘case direction notice’ (s 118) must be filed with the court at least seven days before the committal mention date. Your lawyer must do this. If you do not have a lawyer appearing for you, the DPP must file the notice. The purpose of the committal hearing is for the magistrate to decide – after hearing all of the evidence of the witnesses and anything further put forward by the prosecution – whether there is sufficient evidence in the prosecution case to support