Index
1. Summary Offences
2. Indictable Offences
3. Diversion (Criminal Justice Diversion Program)
4. Procedure:
(a) Summary Offences
(b) Indictable Offences
5. County Court and Supreme Court Procedure
6. Sexual Offences and the conduct of Sex Cases in Victorian Courts
7. Jury Trials
8. Cyber Based Sexual Offences
Summary Offences
Summary Offences can only be dealt with in the Magistrates Court. The Magistrates Courts are located at places such as Melbourne, Broadmeadows, Dandenong, Ringwood, Frankston, Sunshine and Geelong.
Summary Offences are dealt with by Magistrates who are trained lawyers.
If a Defendant is not happy with the Court result the Defendant can appeal which means the case will be then re-dealt with in the County Court of Victoria before a Judge alone. This means there is no Jury.
Indictable Offences
Indictable Offences are the more serious type of cases and include offences such as murder, manslaughter, culpable driving, theft, inflicting serious injury, indecent assault and sexual offences. Many of these offences can be dealt with in the Magistrates Court.
To see whether or not an indictable offence can be heard summarily it is necessary to look at schedule 4 of the Magistrates Court Act 1989. If the case can be dealt with summarily the case will be heard in front of a Magistrate. If the case cannot be heard summarily the case will proceed as a Committal in the Magistrates Court and then be dealt with by a Judge and a Jury if pleading not guilty, or a Judge alone if pleading guilty. These cases are dealt with in the County Court or the Supreme Court.
Diversion Program
Pursuant to the Criminal Procedure Act 2009 section 59, the Magistrates Court may adjourn a proceeding for a period not exceeding 12 months in certain circumstances. In many ways a Diversion is similar to not having been charged at all. If a Diversion is granted, the case is removed from the Police record system and the court computers.
A Diversion will reveal to future employers nil.
A Diversion is a court sanctioned withdrawal of the charges.
Before a Diversion can be granted, the Police must agree and if a victim is involved the victim’s opinion is sought by the court.
Once the Police agree to a Diversion, a Magistrate must have a look at the case and also agree to the Diversion.
The existence of prior convictions does not disqualify an offender from the Progam but the Court will take this into account in deciding whether a Diversion Program is appropriate.
Procedure
(a) Summary Offences
The Police interview the suspect and
(a) Charge the suspect on the spot and:
(i) release the suspect on bail; or
(ii) remand the suspect in custody and a bail application will have to be made by the suspect’s lawyer.
(b) Send the suspect home and charge the suspect later on a summons. This means there is no bail.
The accused is given the summons usually by mail but it can be delivered by the Police. The first hearing date is known as a Mention.
The case only proceeds on a Mention date if the accused is pleading guilty and the case is short and ready to proceed.
A first adjournment is usually not a problem. However, if the case is to be adjourned a second time it is now usually necessary to appear before a Magistrate and give good reasons.
If an accused needs time to obtain witnesses such as Psychiatrists, Psychologists, Radar Experts, Drug Counsellors or Alcohol Counsellors, it will be necessary to book the case in for a special hearing.
If the accused is going to plead not guilty it is necessary to adjourn the case from the Mention date to either:
(i) a fixed hearing date arranged with the Co-ordinator; or
(ii) a Contest Mention date arranged with the Co-ordinator.
Contest Mentions are organised to sort out preliminary matters and involve a hearing in the courtroom before the Magistrate. Magistrates often try and settle cases to avoid the need for a Contest but if the case can’t be settled, a booked in hearing date will be arranged.
The case is then fought out at the booked in hearing date.
(b) Indictable Offences
The Police interview the suspect and
(a) Charge the suspect on the spot and:
(i) release the suspect on bail; or
(ii) remand suspect in custody and a bail application will have to be made by the suspect’s lawyer.
(b) Send the suspect home and charge the suspect later on a summons. This means there is no bail.
The first hearing date will be a Mention if the case is to be dealt with summarily and all of the procedural steps outlined in the summary jurisdiction section are the same.
If the case is to be dealt with in the Indictable jurisdiction the first hearing date is known as
(a) Filing Hearing
At a Filing Hearing the Magistrate explains to the Defendant that he must get a lawyer. The Magistrate will also tell the Police that they are to prepare a Hand-up Brief and serve it on the Defendant by a certain time and then all parties are to appear at the next hearing which is called a Committal Mention.
(b) Committal Mention
By the time of a Committal Mention the Police are to serve on the Defendant a Hand-up Brief. This document contains the statements of all of the witnesses and includes photographs which the Police intend to use. The Defence are to examine the Hand-up Brief and if they wish any of the witnesses to attend at the hearing the Defence must prepare a Form 10A which sets out which witnesses are required and why.
At the Committal Mention the Magistrate will either allow the witnesses or order that the witnesses will not be called to give evidence.
If a Form 10A is not filed the accused runs the risk of being sent to the County Court or the Supreme Court without a Committal.
If the Magistrate allows witnesses to be called a new hearing is then listed which is known as the Committal.
(c) Committal
The witnesses are called and cross-examined and the Defendant is either discharged or committed to the County Court or Supreme Court to be dealt with later in the year.
The next hearing date will be called a Case Conference.
(d) Case Conference
At the Case Conference a Judge sitting alone will expect the Office of Public Prosecutions to provide the Defence with the following document:
Prosecution Summary.
This is to be done fourteen days before the Case Conference.
The Defence is to provide the Office of Public Prosecutions with the following document:
Defence Brief Response.
This is to be done seven days before the Case Conference.
At the Case Conference the Judge will set a provisional hearing date if the case is to be a Trial because the accused is pleading not guilty. If the accused is pleading guilty the Judge will set a definite plea date.
If the accused is pleading not guilty the Judge will adjourn the case for a directions hearing.
(e) Directions hearing
At a directions hearing the Judge will expect the Office of Public Prosecutions to have a Presentment for the Court. A Presentment is the word used to describe a Charge Sheet in the County or Supreme Court.
The Presentment has the exact charges and the Judge will want to know the following:
1. Is funding in place?
2. Are the witnesses all available?
3. Is there any need for special arrangements such as video link-ups?
At the directions hearing the Judge will expect the accused to plead not guilty formally.
At the directions hearing the Office of Public Prosecutions will be expected to provide the Court with;
(i) A summary of the Prosecution Opening. (This is what the Prosecutor will read to the Jury in his opening).
At the directions hearing the Defence will be expected to provide the Court with a document known as follows;
(i) Defence Response to Summary of Prosecution Opening. (This is the outline of the Defence).
The Judge will then adjourn the case for the Trial.
Sexual Offences and the Conduct of Sex Cases in Victorian Courts
In Victoria sexual offences have been given a special significance and are dealt with in the courts in a separate stream to other offences. Sexual offences include rape, indecent assault, assault with intent to rape, incest, sexual penetration of a child under the age of 16, indecent act with a child under the age of 16, sexual relationship with a child under the age of 16, sexual penetration of a sixteen year old child, indecent act with a 16 year old child, and various other offences.
Other offences such as;
1. Use a carriage service to procure a person under the age of 16 years with the intention of procuring that person to engage in, or submit to, sexual activity, are not strictly sexual offences.
When a person is charged with a sexual offence in Victoria, the Victorian Government is keen to have the cases dealt with as soon as possible. This means these offences take priority in the court system. Charges such as rape have very strict time limits as to providing paperwork after a charge is laid.
Filing Hearing
In simple terms, a first hearing is usually required within seven days after the charge sheets are filed if the Accused has been arrested and either (a) remanded in custody or granted bail, or (b) within 28 days after the charge sheet is filed if a summons to answer to a charge is issued in respect of the Accused. This hearing is known as a Filing Hearing.
Committal Mention
At the Filing Hearing, the Magistrate will order the Police to serve the hand-up brief which contains all of the statements of all of the witnesses on the Defendant or his lawyer. This must be done within specified times. A hand-up brief must be served at least 42 days before the Committal Mention.
The Committal Mention will be set at the Filing Hearing so that all the dates can be arranged around the Committal Mention date.
Time for holding Committal Mention hearing
A Committal Mention hearing must be held (a) in the case of a sexual offence within three months after the commencement of the criminal proceeding; or (b) in the case of any other offence within six months. See section 126 of the Criminal Procedure Act 2009.
After the hand-up brief is served, the lawyer for the Accused must read the hand-up brief and determine which witnesses will be needed to attend at the eventual hearing. A form must be filed with the court; this is known as Form 32 or a Case Direction Notice.
The Case Direction Notice must set out the list of witnesses the Accused intends to seek leave to cross-examine and specify in respect of each of these witnesses whether the Director of Public Prosecutions consents or opposes leave being granted.
See section 119 of the Criminal Procedure Act 2009.
The Case Direction Notice must be filed at least seven days before the Committal Mention hearing.
At the Committal Mention hearing the Magistrate will have a look at the Case Direction Notice and make a decision as to whether or not the witnesses required are really necessary and will give evidence which is relevant and important. If witnesses are called who really have little bearing on the hearing the Magistrate has the power to decline the right to call the witnesses to be cross-examined by the Accused.
Special Rules applicable to Sexual Offences
The Police must be represented by a lawyer when the victim is giving evidence or a recording of the victim’s evidence is being played the only persons allowed in court are:
- the Police;
- the Accused;
- an emotional support worker for the victim;
- lawyers for the Accused and not more than one assistant for each legal practitioner;
- court officials.
No Cross Examination of children or persons with mental impairment at a Committal
In sex cases it is not possible to cross-examine a child or a person with a cognitive impairment when the criminal proceeding was commenced. However, a copy of a recorded interview in a transcript of the recording must be served as part of the hand-up brief.
The Criminal Procedure Act 2009 section 123.
Jury Trials
Jury trials are conducted in Victoria in the County Court and the Supreme Court. A Jury trial simply means that twelve jurors decide whether the Accused is guilty or not.
(1) If the Jury decide that the Accused is not guilty:
(i) The Accused is released and goes home;
(ii) The Jury go home. Their job is finished.
(2) If the Jury decides that the Accused is guilty:
(i) the Accused is either held in custody or released on bail depending on the case and a plea hearing will be conducted that day or at a later time.
(ii) the Jury go home. Their job is finished.
8. Cyber Based Sexual Offences
1. Using a Carriage Service
Using a carriageway to procure a person under 16 for sexual activity by a person over the age of 18 is an offence under subsection 474.26(1) of the Criminal Code (Commonwealth).
Sexual activity means a wide range of activities which really require a conference with Mr Wilkinson. Procuring a person is also very complicated and not easily explained on a website page.
Usually this crime is started by logging on to a chat site and becoming involved with another by accessing a particular room on the chat site. For example ’Young Girl Sex’. Before long, the various participants are discussing sex and eventually make arrangements to meet.
2. Child Pornography
This site is currently being developed.
