The Law Handbook 2024

218 SECTION 3: Fines, infringements and criminal law a conviction by a jury (s 97). If a magistrate decides there is sufficient evidence to support a conviction, then the accused is ordered to stand trial in a higher court. If a magistrate decides that there is insufficient evidence, then the accused is discharged. Where the prosecution case is particularly strong or where the accused intends to plead guilty, the defence may choose to proceed by way of a hand-up brief (s 141). In this case no witnesses are called. There are also special rules in relation to sexual offences, including limiting the people who are present in a courtroom while a complainant is giving evidence. No cross-examination is permitted where the complainant in a charge of a sexual offence is a child (i.e. under 18 years) or where a witness is a person with cognitive impairment (CP Act s 123). Choosing between a summary trial or a judge and jury (or a judge alone) For indictable cases triable summarily, the informant or prosecutor will normally apply for summary jurisdiction, although the defendant usually has a right to choose between the two types of hearing. If the defendant consents, the case will almost always be tried summarily. If the defendant refuses consent, the case usually proceeds as a committal. An important factor to consider in making the choice is that Magistrates’ Courts are limited to imposing shorter prison terms than the County Court or Supreme Courts. Magistrates’ Courts can impose up to two years for indictable offences tried summarily (s 113 Sentencing Act 1991 (Vic) (‘ Sentencing Act ’); up to three years for drug offences; and a maximum cumulative sentence of five years for several offences committed at the same time (s 113B Sentencing Act). A court, when imposing a sentence, may take into account the fact that the accused has pleaded guilty and the time at which they indicated an intention to do so (s 5(2)(e) Sentencing Act). This will often provide a further incentive to have a matter dealt with earlier in the Magistrates’ Court. Therefore, the following factors are relevant when there is a choice between trial before judge and jury or summary jurisdiction: 1 The penalties that can be imposed by aMagistrates’ Court for indictable offences are lower than those available to the higher courts. 2 The summary hearing is shorter than a trial. 3 Opting for a judge and jury trial (or a judge alone trial) gives more time for the defence to prepare its case. 4 Jury trials are sometimes thought to offer a greater possibility of an acquittal than a summary trial. 5 Where the case could be heard in the Magistrates’ Court, it is extremely rare for legal aid to be provided for a judge and jury trial. 6 There is an automatic right of appeal from Magistrates’ Court decisions, but some error must be shown in order to succeed on appeal from the County or Supreme Court. Contacts County Court of Victoria 250 William Street, Melbourne Vic 3000 Tel (general queries): 8636 6888 Tel (common law registry): 8636 6515 Tel (commercial and civil registry): 8636 6690 Tel (criminal registry): 8636 6570 Email (common law): commonlaw.registry@countycourt. vic.gov.au Email (commercial and civil): commercial.registry@ countycourt.vic.gov.au Email (criminal): criminal.registry@countycourt.vic.gov.au Web: www.countycourt.vic.gov.au Magistrates’ Court of Victoria Email: customerassistance@courts.vic.gov.au (for Melbourne Magistrates’ Court only) Web: www.mcv.vic.gov.au There are Magistrates’ Courts throughout metropolitan and regional Victoria; see the court’s website for addresses. Supreme Court of Victoria 210 William Street, Melbourne Vic 3000 Tel: 8600 2000 Web: www.supremecourt.vic.gov.au Office of Public Prosecutions Victoria (OPP) – Victims and Witness Assistance Service 565 Lonsdale Street, Melbourne Vic 3000 Tel: 9603 7425; 1800 641 927 Email: wasadmin@opp.vic.gov.au Web: www.opp.vic.gov.au/victims-witnesses/how-we-can- support-you/#vwas