Going to court
A criminal prosecution generally begins with a ‘charge’ detailing the alleged crime commi ed, filed by an informant (usually a police officer) with the court registrar. The accused may receive the charge at arrest and be remanded in custody or bailed, or the charge may be served via summons.
The first appearance for a person charged with a criminal offence is in the Magistrates’ Court, which handles many cases, though some are transferred to the County Court or Supreme Court for final hearings (see Chapter 1.2: An introduction to the courts). Defendants must appear in person at the Magistrates’ Court, but those in custody can appear online.
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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 lawyers. The role of 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 for the conduct of prosecutions in the Supreme and County Courts, and committal matters in the Magistrates’ Court. In the 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 (CP Act s 125).
OPP lawyers also appear in committals in regional courts; 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.
The Director of Public Prosecutions shares, with a number of senior barristers appointed as Crown Prosecutors, responsibility for signing ‘indictments’ (CP Act s 158). 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.
OPP lawyers are responsible for the preparation of criminal trials. A Crown Prosecutor, or a 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.
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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 (CP Act s 53). Usually, the case can only be dealt with if the defendant is pleading guilty, as neither the informant nor prosecution witnesses a end court on the mention date.
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 a end 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 a end 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 appropriate by the magistrate. If so, a defendant must 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.
That diversion program may involve apologising to or compensating the victim, a ending counselling or treatment, performing community work, not associating with certain people, making a donation to a specified charity, or a ending a 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.
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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. 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).
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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 (Sentencing Act 1991 (Vic) (‘Sentencing Act’) s 113); up to three years for drug offences; and a maximum cumulative sentence of five years for several offences committed at the same time (Sentencing Act s 113B).
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 (Sentencing Act s 5(2)(e)). 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 (or a judge alone 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.
Going to court
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: 192
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