The Victorian Legal System: How Does it Work?

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Ophelia HollwayThe article The Victorian Legal System: How Does it Work? is written by Ophelia Hollway, Senior Associate, Doogue + George Defence Lawyers.

Ophelia is currently based at our Melbourne office. She regularly represents clients at Magistrates’ Courts as well as other metropolitan and regional courts of Victoria.

Since becoming a lawyer, Ophelia has worked exclusively on matters related to crime and family violence. She previously worked for Melinda Walker Criminal Law and Victoria Legal Aid handling state and Commonwealth cases, as well as volunteered overseas to assist in the preparation of capital defense cases.

Justice Scale and GavelFor the layperson, the court system is a complex web comprising the judiciary, lawyers, prosecutors and court staff.

This blog outlines the court hierarchy in the Victorian legal system to help clients and their families familiarise themselves with the legal system so as to make the court experience less daunting.

In Victoria, courts are divided as follows:

– Magistrates’ Court:

  • Hears civil and criminal cases
  • Determines the majority of cases in Victoria
  • Criminal cases include offences against the person, property offences, family violence, driving-related matters etc.
  • Hears all ‘summary’ and ‘indictable offences triable summarily’
    • NB: See below for a description of the types of offences
  • Deals with matters under $100,000
  • Magistrates and judicial registrars decide matters
  • Parties: Police prosecutors or Office of Public Prosecutions lawyers (‘the prosecution’) and defence lawyers (‘the defence’)
  • Person can plead guilty or not guilty
  • If guilty:
    • Case will be determined by a magistrate at ‘Plea Hearing’
  • If not guilty:
    • Case will be decided by a magistrate at ‘Contested Hearing’ where witnesses are called and cross-examined
  • Chief Magistrate: Lisa Hannan
  • Sentencing limits mean jail terms cannot go above 2 years for one offence or 5 years for multiple offences
  • Courts are located across Victoria

County Court:

  • Hears civil and criminal cases
  • Hears only indictable matters*
  • Deals with matters $100,000+
  • Judges and judicial registrars decide matters
  • Chief Judge: Peter Kidd
  • Court also sits ‘on circuit’ in regional locations such as Latrobe Valley, Wangaratta, Bendigo and Ballarat
  • *Unless there are also summary matters related to the indictable matter

– Supreme Court:

  • Justices decide matters
  • Divided into Trial Division and Court of Appeal
  • Trial Division:
    • Criminal: trial before a jury (12 people) or pleas of guilty to serious crimes
      • Examples: murder, manslaughter, large-scale drug trafficking
    • Civil: trial before a jury (6 people) etc.
  • Court of Appeal: hears appeals from County Court and Supreme Court and occasionally from VCAT. Most appeals require permission i.e. ‘leave’ in order to be heard
    • This court can either:
      1. Order a retrial;
      2. Change the decision in a case;
      3. Find that there was no error meaning the lower court’s decision remains
  • Hears only indictable matters
  • Court also sits ‘on circuit’ in regional locations such as Latrobe Valley, Wangaratta, Bendigo and Ballarat

– High Court of Australia:

  • Must be granted ‘special leave’ to have case heard
  • Once ‘special leave’ is granted, appeal is heard
  • Chief Justice: Susan Kiefel AC

Other Courts/Tribunals in Victoria:

– Children’s Court:

  • Deals with accused people who are children and young people
  • Includes family violence (intervention orders and child protection) and criminal division
  • Sits in Melbourne as well as regionally

– Coroners Court:

  • Inquisitorial court
  • Looks into ‘reportable deaths’ including:
    • Violent, unnatural or unexpected deaths e.g. homicide
    • Accidents or injury-related deaths e.g. road fatalities
    • Identity of the deceased person is not known
    • Cause of death is not known
    • Health-care related deaths
    • Deaths without a death notice
    • Deaths in care or custody
  • Death must be connected to Victoria
  • Makes recommendations following an inquest or may order that investigations are re-opened

– Victorian Civil and Administrative Tribunal (VCAT):

  • Determines matters relating to building and construction; mental health and disability; guardianship and powers of attorney amongst others
  • Less formal than a court
  • Encourages individuals to self-represent

Offence Types:

  • Summary offences: deemed less serious. Heard by a Magistrate, as opposed to a jury
  • Indictable offences triable summary: mid-range. Accused person can elect to have these heard in either Magistrates’ Court or County Court
  • Indictable offences: must be heard in either County or Supreme Court (depending on level of seriousness)

Date Published: 25 November 2020

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