Criminal Procedure Act
The Criminal Procedure Act 2009 (Vic) (‘CP Act’) consolidates the criminal procedures for the Magistrates’, County, and Supreme Courts of Victoria into a single Act. The Judicial College of Victoria has prepared the Victorian Criminal Proceedings Manual, which provides detailed explanations of criminal procedure under the CP Act. This manual is available at www.judicialcollege.vic.edu.au.
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The procedures for summary offences can be found in chapter 3 of the CP Act. Under section 27 of the CP Act, summary offences will continue to be heard in the Magistrates’ Court. The Children, Youth and Families Act 2005 (Vic) introduces a six-month time limit for the filing of charges for summary offences in the Children’s Court.
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The procedures for indictable matters are dealt with in chapter 5 of the CP Act. They will continue to be heard by a judge and jury. Indictable offences that may be heard in the Magistrates’ Court (if the defendant consents) are:
those listed in schedule 2;
any offence punishable by 10 years’ imprisonment or less; or
those where the offence is punishable by 10 years’ imprisonment or less, or a maximum fine not exceeding 120 penalty units) (see ‘A note about penalty units’ in Additional Information).
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The procedure for dealing with committals is dealt with in Parts 4.6–4.8 of the CP Act.
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Under the CP Act, the mention hearing process remains the same.
The summary case conference procedure is described in section 54. It is a conference between the prosecution and the accused for the purpose of managing the progression of a case. The procedure includes the prosecution providing the accused with all the information and documents that may assist the accused to understand the evidence relied upon in the case. It also includes identifying any issues in dispute and identifying steps to be taken to advance the case. The Magistrates’ Court directs the parties to attend a case conference if it is satisfied the conference is appropriate.
The contest mention hearing is described in section 55. At that hearing the magistrate may require the prosecution and defence to:
give an estimate of the time the contested case will take;
advise regarding the estimated number and availability of witnesses;
identify the issues in dispute;
advise whether there is any problem with legal representation or the funding of a case;
advise whether interpreters will be required or other facilities will be needed for witnesses (e.g. video link requirements if a witness is interstate);
order a party to file and serve written or oral material required by the court;
amend any documents that have been filed; and
do anything else for the management of the case.
These requirements are all directed towards the efficient management of the case. The defendant must attend all contest mention hearings.
Ground rules hearings may be held in respect of certain witnesses (not the defendant) in cases involving sexual offences (including the complainant) or offences consisting of family violence or an indictable offence involving assault, injury or a threat of injury or common assault or aggravated assault (CP Act s 389A(1)).
A ground rules hearings may be held when the witness is under 18 years old, has cognitive impairment or is a complainant in a charge of a sexual offence (CP Act s 389A(3)). It must be held in cases where the witness is a complainant in a sexual offence or where an intermediary is appointed (CP Act s 389B). It must be held before a contested hearing or committal (Magistrates’ Court of Victoria, Practice Direction 5 of 2023). If the defendant is represented, the legal practitioner must attend; if the defendant is unrepresented, the defendant must attend at the hearing (CP Act s 389D(1)(b)).
At the ground rules hearing, directions may be made about the manner, duration and topics of questions to be asked of a witness. Directions may also be made as to the use of aids (for example models, plans, body maps) to help in communicating a question or answer.
To assist witnesses who are under 18 years old or cognitively impaired adults, an intermediary (a professional with specialist communication skills) may also be used (CP Act s 389F).
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Trials in the County Court and the Supreme Court are governed by chapter 5 of the CP Act. A trial is heard by a judge and a jury of 12 people.
However, chapter 9 of the CP Act provides for temporary arrangements where a trial can be heard by a judge alone on an order. A judge-alone trial may be ordered only if each accused person consents and the court is satisfied that each accused has obtained legal advice on whether to give that consent; the court must also consider it to be in the interests of justice for the trial to be heard by a judge alone (CP Act s 420E).
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Appeals from the Magistrates’ Court to the County Court are dealt with in Part 6.1. Appeals on questions of law from the Magistrates’ Court to the Supreme Court are dealt with in Part 6.2.
Criminal Procedure Act
Chapter: 3.7: Which court for which crime?
Contributor: Manolya Ilanli, Senior Lawyer, Academic and Writer
Current as of: 1 September 2024
Law Handbook Page: 190
Next Section: Classification of offences
