Procedure in Criminal Cases

Index

1. Summary Offences
2. Indictable Offences
3. Diversion (Criminal Justice Diversion Program)
4. Procedure:

(a) Summary Offences

(b) Indictable Offences – dealt with in the Summary Stream

(c) Indictable Offences – dealt with in the Committal Stream

5. County Court and Supreme Court Procedure
6. Sexual Offences and the conduct of Sex Cases in Victorian Courts
7. Jury Trials

 

1. 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 be re-dealt with in the County Court of Victoria before a Judge alone. This means there is no Jury.

2. 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 Section 28 of the Criminal Procedure Act 2009.

Section 28 provides that offences set out in Schedule 2 of the Criminal Procedure Act can be dealt with summarily and common law offences can also be dealt with if they are:-

1. Level 5 (10 years jail) or Level 6 (7.5 years jail) offence; or
2. Punishable by Level 5 or Level 6 imprisonment or fine or both; or
3. Punishable by no more than 10 years or a $12,000 fine

Schedule 2 offences are all set out at Page 305 of the Criminal Procedure 2009.

The maximum term for certain common law offences is set out as follows in Section 320 of the Crimes Act 1958. By reference to this table it is possible to ascertain whether or not a common law offence can be heard by a Magistrate’s Court.

Common law offence	Maximum Term of Imprisonment
Affray	Level 6 imprisonment(5 years maximum)
Attempt to pervert the course of justice	Level 2 imprisonment(25 years maximum)
Breach of prison	Level 6 imprisonment(5 years maximum)
Bribery of public official	Level 5 imprisonment(10 years maximum)
Common assault	Level 6 imprisonment(5 years maximum)
Conspiracy to cheat and defraud	Level 4 imprisonment(15 years maximum)
Conspiracy to defraud	Level 4 imprisonment(15 years maximum)
Criminal defamation	Level 5 imprisonment(10 years maximum)
Embracery	Level 4 imprisonment(15 years maximum)
False imprisonment	Level 5 imprisonment(10 years maximum)
Kidnapping	Level 2 imprisonment(25 years maximum)
Misconduct in public office	Level 5 imprisonment(10 years maximum)
Perverting the course of justice	Level 2 imprisonment(25 years maximum)
Public nuisance	Level 6 imprisonment(5 years maximum)
Riot	Level 5 imprisonment(10 years maximum)
Rout	Level 6 imprisonment(5 years maximum)
Unlawful assembly	Level 6 imprisonment(5 years maximum)

 

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.

3. 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.

4. 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 Summary Case Conference; or

(ii) a fixed hearing date arranged with the Co-ordinator; or

(iii) a Contest Mention date arranged with the Co-ordinator

Summary Case Conferences are dealt with by a Police Prosecutor at the Court. The lawyer for the accused and the Prosecutor try and sort out what should proceed and what should be withdrawn. Once this has been done, both parties sign a document which is given to the Court Registrar who then arranges a fixed hearing date for a plea of guilty or a plea of not guilty, or;

If the parties cannot agree, the case can be listed before a Magistrate for a Contest Mention.

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 – dealt with in the Summary Stream

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.

(c) Indictable Offences – dealt with in the Committal Stream

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 32 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 32 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 Case Conference

Sometimes the Magistrate or Defence or Prosecution can ask that the case be directed to a Committal Case Conference for resolution before the Committal.

There are cases where the solution seems sensible but one of the parties won’t agree. An example might be the case of an Accused who cannot understand why he is charged with theft of $120 000 when he only received part of that money for himself although he transferred the full $120 000. In a case like this, a Magistrate can step in and explain to the Accused that although he is technically guilty of the theft of $120 000, the Court takes notice of the fact that he only received $60 000 for himself.

Another example might be a Magistrate could point out to an Accused that he has no defence and would be better off to plead guilty and gain the very substantial discounts to sentence that apply to accuseds who plead guilty at an early stage.

Sometimes these Committal Case Conferences can lead to the Office of Public Prosecutions withdrawing charges and even agreeing to have the case dealt with in the summary stream meaning there is no need for a Committal or a Trial.

(d) Committal

The witnesses are called and cross-examined and the Accused is either discharged or committed to the County Court or Supreme Court to be dealt with later in the year.

The test a Magistrate applies in deciding whether or not to commit an Accused for trial is a simple question: Could the jury convict?

You should note that this is different from the question ‘Would a jury convict?’

Many Magistrates are of the view that they personally wouldn’t convict but can see that some jurors could convict and accordingly at law the case must be left for a jury to decide.

However, this does not mean that the Accused’s lawyers cannot contact the Office of Public of Prosecutions and lobby for the charges to be discontinued.

This is called an Application for a Nolle Prosequi (this is not equivalent to an acquittal and is not a bar to a new indictment. However, in practical terms, if a Nolle Prosequi is granted in relation to all or some of the charges, those charges are at an end).

The next hearing date after the Committal will be called a Case Conference.

5. County Court and Supreme Court Procedure 

(a) 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.

(b) 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.

6. 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.

7. 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.