How a criminal prosecution begins
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).
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 default 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 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).
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. 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 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.
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.
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;
- victim impact statement (if any);
- agreed criminal history (if any);
- maximum penalties and/or mandatory 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 bond, 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 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.
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 Registry 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 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 on Magistrates’ Court procedures, visit www.mcv.vic.gov.au.
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 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.
Choosing between summary trial or judge and jury
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:
- 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 offer 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 appeal from Magistrates’ Court decisions, but some error must be shown in order to succeed on appeal from the County or Supreme Court.