Get advice first
You should seek legal advice if you are charged with a criminal offence. People charged with a criminal offence who cannot afford a lawyer are usually eligible for at least initial free advice from a legal service. Sometimes, duty lawyers at court may be able to assist you on the day of your hearing but always try to get advice before your court day (see ‘Duty lawyers’ in Chapter 2.2: How legal aid can help).
Availability of duty lawyers affected by COVID-19
Due to the COVID-19 pandemic, duty lawyers may not be available to help you on the day of your hearing (i.e. duty lawyers may not be physically present at court or you may be accessing the hearing remotely and so there’s no opportunity for you to approach the duty lawyers). This makes it particularly important to seek legal advice before your hearing. It also means you need to contact the court to confirm what you need to do to participate in your hearing.
Indictable vs summary cases
Court procedures are different depending on whether a case is a ‘summary’ or ‘indictable’ case.
Indictable cases involve serious charges that may be transferred to a higher court. Free representation is often available for people who have been charged with an indictable offence and who cannot afford a lawyer.
Indictable cases start with a ‘filing hearing’. If you are facing a filing hearing, it is important to seek legal help.
The rest of this section deals with summary cases. Summary cases are heard and finished in the Magistrates’ Court. Victoria Police is responsible for prosecuting summary offences – that is, police officers present the case against you to the court. While the Magistrates’ Court can deal with quite serious charges, the most serious criminal cases are heard in higher courts.
Police prosecutions and the brief of evidence
You will need a copy of the ‘preliminary brief’, which summarises what the police say happened and what evidence they plan to use to prove their case against you. This will help you to decide whether to plead guilty or not guilty. While police often provide this document automatically, you have a right to request the preliminary brief under section 35 of the CP Act.
Police will most often give you either a summons or a charge sheet along with the preliminary brief. Both documents show the charges against you and the date of your court hearing. Both documents also contain the contact details of the ‘informant’, who is the police officer who charged you.
If you need to, you can ask for a copy of the preliminary brief by emailing the informant. Always be calm and polite when speaking or writing to police officers. Keep detailed notes of any conversations with the informant and save copies of any correspondence.
To prove a crime was committed, the police need to prove each ‘element’ of the offence. This usually involves proving that the physical actions occurred and that you had a certain state of mind at the time of the offending (e.g. you physically injured the victim and you intended to injure that person).
There are many situations where you may have done certain actions, but you did not have the required state of mind for a crime to have occurred. On the other hand, your actions and intentions may mean that you have committed a crime, even though you think you did nothing wrong.
Also, being unaware that something is against the law is never a defence. Therefore, you can commit a crime without knowing you have broken the law. This is why it is important to seek legal advice early in a criminal case when deciding to plead guilty or not guilty.
Summary case conference
A summary case conference is an out-of-court discussion (which is often conducted via email) with a police prosecutor who can negotiate about the charges or about what is said in the summary of facts about a case. They can change or withdraw charges if you both agree.
A summary case conference is supposed to help both sides narrow down the issues in dispute, and to help you decide early on whether you will plead guilty or not guilty to some or all the charges. Ideally, you should try to have a summary case conference before your court date.
If you are self-representing, it is important to seek legal advice before engaging in a summary case conference with the police. A lawyer can advise you on how to negotiate with the police.
Pleading guilty to a criminal charge
If you decide to plead guilty, the process is:
- After your name is called, the court clerk will direct you to come to the front of the court.
- The prosecutor applies for ‘summary jurisdiction’ if the charge is an indictable offence that is allowed to be heard summarily – that is, it can be dealt with in a Magistrates’ Court. The magistrate must tell you that you can choose to have your case decided by a judge and jury in the County Court (see Chapter 3.7: Which court for which crime?).
When making this decision, the things to consider are the longer delays, greater cost and enhanced complexity involved in having a case transferred to be heard by a judge and jury. Otherwise, you can ask to have the magistrate hear the charge there and then.
If you choose to go before a judge and jury in the County Court, the magistrate will ‘adjourn’ (i.e. put off until a later date) the hearing. If you choose to have the charge dealt with by the magistrate, the hearing will proceed.
- The magistrate will ask what your plea is to the charge: guilty or not guilty. You must answer this question. If you have not made a decision, the hearing will be paused and might be adjourned.
- If you plead guilty, the prosecutor will read to the court the summary of facts relating to the charge against you. You will be asked if this is true and correct. For the case to go ahead as a guilty plea, you must agree with the summary read out to the court. Remember, if you disagree with the summary of facts, this needs to be discussed during a summary case conference, ideally before the day of the court hearing.
- If you plead guilty, the magistrate will ask if you have any prior criminal history – this means if you have previously been to court and been found guilty of an offence. If you are in court for a traffic offence, the magistrate will ask for your driving history. This information is required to be included with the preliminary brief or full brief of evidence, so you should have had a change to read this before court and raise any issues with the prosecutor.
You are then asked to agree or disagree that your prior criminal history is correct. If you disagree, the hearing will stop while the prosecutor investigates. If you agree, the record will be accepted and shown to the magistrate, and the hearing will continue. It is important to make sure that any record is accurate, because it will influence the magistrate’s sentencing.
- The magistrate will ask you to explain yourself to help them determine an appropriate penalty. If you hear a phrase like, ‘What do you want to say?’, stay calm and speak clearly and briefly. The magistrate may ask you lots of specific questions or they may let you speak freely. The topics the magistrate will be most concerned to hear about are:
- a reasons for the offending that explain why it happened, as well as your understanding of why it happened, which could help to reassure the magistrate that you can prevent it reoccurring;
- whether you are remorseful (i.e. sorry for what happened) and if you have apologised or made amends in any way;
- anything you have done since the offence to ensure it does not happen again;
- personal details such as:
- your age, occupation and financial circumstances,
- your family situation including any caring responsibilities and who lives with you and who supports you,
- any medical issues that impacted you at the time of the offending (or that are currently impacting you) and any treatment you were or are undergoing and any support you have in place,
- why you need your driver licence (if you are in danger of losing it);
- The magistrate will sentence you. (See Chapter 1.3: Sentencing in the Magistrates’ Court.)
If you are at risk of imprisonment, the magistrate will ask whether you have had legal advice, and advise you of your right to do so, before sentencing you. If the magistrate is not convinced that you have had adequate legal advice, they might pause or adjourn the case to give you a chance to do this.
Pleading ‘not guilty’ to a criminal charge
If the case does not ‘resolve’ – which means you disagree with the police’s version of what happened and could not reach an agreement during the summary case conference – the court will likely adjourn your case to a ‘contest mention’.
A contest mention is a brief hearing where parties must say which issues are disputed, which prosecution witnesses need to attend a hearing to be cross-examined, and any other things that need to be done to prepare the evidence for a ‘contested hearing’. At a contested hearing, a magistrate hears all the evidence and decides whether the charges have been proven beyond reasonable doubt.
If your case is booked into a contest mention, you should request a full brief under section 39 of the CP Act. The full brief includes the evidence (e.g. documents, images and recordings) that the police prosecutor will rely on to prove the charge against you in court. A full brief is more detailed than a preliminary brief.
Having this detailed brief is essential if you are going to contest the charge as you need to plan how you will challenge the evidence, which witnesses you will cross-examine, what questions you will ask the witnesses, and whether you need to call your own witnesses.
You also need further legal advice at this point – on the merit and likely outcome of your case, as well as on strategy and court procedures. In a criminal matter, there are many opportunities to try again to negotiate with the other party. You can also change your plea at many different points in the process, although after a certain point, it is not possible.
If you contest a matter and are found guilty, the penalty imposed on you could be more severe than if you had pleaded ‘guilty’ in the first place. This is because the law says that if you plead guilty from the start, you must get a less severe penalty than you would if you contested the case and were found guilty.