How a criminal prosecution begins
A criminal The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. is generally commenced by way of a ‘charge’, which specifies the crime the person is Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. to have committed. The person making the (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. (usually a police officer) is called the ‘informant’. The A person who swears an affidavit stating that an offence has occurred and is named on the documents that start a criminal case in court. The informant is usually a police officer, but can also be the victim of the crime. Not to be confused with an informer. files the charge with the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary.. The charge may be given to an A person who has been charged with a crime. Also known as a defendant. at the time they are arrested, following which they A document that sets out what a person wants to happen to their money and other property after they die. either be remanded in Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. or bailed to appear at court on a later date. Alternatively, the charge may be served by A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ..
The first appearance for a person charged with a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). 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 The time and place at which a court or tribunal hears the parties argue their case and makes a decision. (see Chapter 1.2: An introduction to the courts).
Court hearings and COVID-19
Due to the COVID-19 pandemic, the Magistrates’ Court has introduced an online court to hear certain cases.
For all criminal matters involving a represented accused, the Failure to do something that is legally required. For example, a person who fails to make a payment on their car is in default on the loan; if they continue to be in default the creditor may issue a default summons to take the debtor to court. position is that the hearing is held via the online Magistrates’ Court.
An accused who is unrepresented must visit the Magistrates’ Court website (www.mcv.vic.gov.au) for information about attending their court hearing.
Permission must be granted to attend court in person. To request permission, contact the registrar at the court where your case is to be heard. You must ask permission at least three days before the date of your hearing (unless the matter is urgent).
For more information about the online court – including how to book your case for an online Magistrates’ Court hearing – visit www.mcv.vic.gov.au/lawyers/online-magistrates-court.
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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects., to negotiate with (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. A lawyer who appears in court and speaks on behalf of their client, often a barrister., and to conduct the case itself.
The Office of Public Prosecutions (OPP) is a Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. 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 An accusation against a person who is suspected of a serious crime (an indictable offence). Being charged means the accused person must go before a court to have the offence tried. is laid) – this is when a date is fixed for the Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. of the ‘hand-up brief’ (all the A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. statements) and a further date is fixed for the committal mention hearing (s 125 CP A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.).
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 (1) A common term for the legal power and authority of the Commonwealth, state and territory governments. (2) Another name for the prosecution in a criminal trial. Prosecutors, responsibility for signing ‘indictments’ (s 158 CP Act). An A document that lists the the accused’s name, the charges against the accused and the particulars of the offence, and is filed with the court to begin criminal proceedings. lists the charges against the accused in County or Supreme Court proceedings. Proceedings commence upon the filing of indictments with the court. In Commonwealth 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 A lawyer who specialises in giving advice in difficult cases and representing clients in court. 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.
In the case of summary offences, or indictable offences triable summarily, a A person who has been charged with a criminal offence or against whom a civil action has been brought. 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 The first day on which a criminal matter is brought before a Magistrates’ Court. On that day, a person tells the court whether they will plead guilty or not guilty to a criminal charge. A case can only be finalised on the mention day if it is a plea of guilty..
Summary offences and COVID-19
Due to the COVID-19 pandemic, pleas of ‘guilty’ for summary offences (not indictable offences that can be heard summarily) will be dealt with ‘on the papers’ – that is, by filing by email documents with the court at which the matter is listed.
The documents to be filed in a single package are:
- Application for Plea of Guilty and Sentence on the Papers (Form P);
- copy of the charges to which the defendant is pleading guilty;
- list of charges to be withdrawn (if any);
- agreed summary;
- A statement made to the court by a victim of a crime. It sets out details of injury, loss or damage caused by the crime. (if any);
- agreed criminal history (if any);
- maximum penalties and/or Required by law to be done; a law that must be strictly complied with. Under mandatory reporting, people in particular jobs to tell a government agency if they know an offence is being committed – for example, doctors and teachers must report child abuse. Mandatory sentencing requires judges to give an automatic jail term for certain offences. orders sought by the prosecution;
- copy of any other orders sought;
- outline of submissions in dot point form on behalf of the defence;
- outline of submissions in dot point form on behalf of the prosecution (if any); and
- copies of any references or reports the defence intends to rely on.
After filing the documents, the parties will be advised of the date the plea is to be listed. On that date, if appropriate, the case will proceed and be dealt with on the papers filed. If the sentence imposed does not involve any imprisonment or any need for assessment, the sentence imposed (e.g. a fine) will be emailed to the parties. Where a magistrate is considering imprisonment or a community corrections order, the case will be adjourned part-heard to a date upon which the defendant, their lawyer and the prosecutor must attend the hearing in court. Where an assessment for a community corrections order is required, the court will communicate that to the defendant and their lawyer, and the defendant must then attend the assessment, including by telephone. If the court imposes a good behaviour (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent., the bond form will be sent to the defendant’s lawyer who must arrange to have the defendant sign it and return it to the court. If unrepresented, the court will make other arrangements for the bond to be signed.
If the defendant is pleading not guilty, the case will be adjourned to a summary case conference (s 54) or to a A preliminary hearing in which parties can try to reach agreement on some matters before a full hearing is held., 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 The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking., 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 A serious crime that is generally heard before a judge and jury in the County Court or the Supreme Court a criminal case. Examples of indictable offences include assault and armed robbery. or is on bail will have to attend court on the mention date, even if prior arrangement has been made to To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. 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 To agree to something being done, to approve an action or arrangement. See also informed consent. of the informant and must be Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. 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.
Diversion hearings and COVID-19
Due to the COVID-19 pandemic, diversion hearings will be conducted ‘on the papers’. That is, the case will be listed for diversion by completing the following documents and emailing them to the The administrative section of a court that accepts documents filed with the court and also handles some public enquiries. of the Magistrates’ Court where the case is listed.
The documents to be completed are:
- Application for Diversion Hearing on the Papers (Form D);
- copy of the completed diversion notice, signed on behalf of the prosecution, including confirmation of victim and notification and view (if any);
- agreed summary;
- victim impact statement (if any);
- agreed criminal history (if any);
- copy of charges for which diversion is sought;
- list of charges to be withdrawn if matter proceeds to diversion (if any);
- a completed diversion questionnaire;
- any references or reports relied on by the defence;
- outline of the defence’s submission in dot-point form;
- outline of the prosecution’s submissions in dot-point form (if any).
The parties will be advised of the date for the diversion hearing seven days before the listed date. On that date, the diversion will be considered by a magistrate or a judicial registrar. The parties will be notified of the decision by email. If diversion is granted, a diversion plan will be provided by email to the defendant or their lawyer for acceptance. If diversion is refused, the case will be listed for a mention and the parties advised of the date for them to appear at court.
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 (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. 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 on Magistrates’ Court procedures, visit www.mcv.vic.gov.au.
In cases to be heard by a judge and A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases. 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 A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. 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 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 A collection of documents that the prosecution must give to the accused person in a criminal case and also provide to the court. The brief must contain all the charges and a summary of evidence that will be used against the accused. See also service. (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 A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant. is giving evidence.
Choosing between summary trial or judge and jury
For indictable cases triable summarily, the informant or prosecutor will normally apply for summary The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area., 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 Two or more terms of imprisonment that are served one after the other, not at the same time. See also concurrent 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:
- The penalties that can be imposed by a Magistrates’ Court for indictable offences are lower than those available to the higher courts.
- The summary hearing is shorter than a trial.
- Opting for a judge and jury trial gives more time for the defence to prepare its case.
- Jury trials are sometimes thought to The first step in agreeing to make a legally binding agreement. An offer must be accepted before there can be a legally enforceable contract. For example, a person can offer to sell their car for $5000 and a buyer can accept the offer and pay that purchase price. a greater possibility of an acquittal than a summary trial.
- 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.
- There is an automatic right of The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. from Magistrates’ Court decisions, but some error must be shown in order to succeed on appeal from the County or Supreme Court.