Changing Courts

Sometimes cases headed towards the County Court can be diverted to the Magistrates’ Court.

This would be a real advantage for any Accused as it cuts the cost of legal proceedings and the maximum penalties are limited.

An application can be made at different stages of a proceeding.  It is generally made at either of these two stages:-

1. When the Indictable Offence is being dealt with in the Committal Stream at the Magistrates’ Court

– Usually dealt with at the Committal Mention or at the very latest, at the start of the Committal.

2. When the Indictable Offence is at a preliminary stage of being dealt with at the County Court. The Judge has a discretion under Section 168 of the Criminal Procedure Act 2009  to revert the matter to the Summary Stream in the Magistrates’ Court. This is on the basis that:-

a) The Accused consents to the transfer

b) The Court considers it is appropriate having regard to the matters outlined in Section 29(2) of the Criminal Procedure Act 2009   

Bear in mind that the offence must be an offence which is listed in Schedule 2 of the Criminal Procedure Act 2009.

Section 29 of the Criminal Procedure Act 2009 provides a non-exhaustive list of factors relevant to the determination of whether an Indictable Offence should be dealt with summarily.

Factors: Section 29, Criminal Procedure Act 2009  

–         Seriousness of the offence

  • The nature of the offence
  • The manner in which the offence is alleged to have occurred
    • Degree of organisation behind the commission of the offence
    • Presence of any aggravating circumstances
    • Whether the offence forms part of a series of offences
  • The complexity of the proceeding for determining the charge

–         Adequacy of the available sentencing orders

–         Any prior convictions

–         How the co-accused was dealt with and the outcome

Below is an example of an Indictable Offence that can be dealt with summarily:-

Jane is an employee at a small company where she manages the accounts. Over a period of two years, she steals money from the company by diverting funds into her personal bank account. She steals to feed her gambling habit.She makes a total of 700 transfers over the period of two years and the total amount stolen is $170 000. However each transfer is a small amount; no one transfer exceeds $100 000.
As the theft involves an amount exceeding $100 000, the matter could be listed in the Committal Stream at the Magistrates’ Court which means it will eventually be dealt with at the County Court.

If the Police or Office of Public Prosecutions (the OPP) refuse to agree to Summary Jurisdiction, it is possible to make an application for it to be dealt with summarily here because although the total amount is over $100 000, each transaction/transfer does not exceed $100 000 and in fact, most of the transfers were about $500 each.

If you are considering transferring your case to the Magistrates’ Court, you should feel free to ring Brendan Wilkinson.

Free first Consultation.

All clients will deal with Mr Wilkinson personally.

Brendan Wilkinson, Criminal Defence Lawyer

Level 4 116 Hardware St

Melbourne VIC 3000

9670 1987 // 0438 670 198

brendanwilkinson@bigpond.com