Most matters in Victoria are heard in the Magistrates’ Court. More serious matter are heard in the County Court or Supreme Court.
The more serious offences generally have to pass through the Magistrates’ Court for committal proceedings on their way to other Courts.
There are basically two types of cases in the Magistrates’ Court for criminal proceedings.
The mention cases that will be finished in the Magistrates’ Court and committal proceedings that will generally end in another Court (County Court or Supreme Court ).
You can tell which path your case by checking what it is listed for.
A brief explanation of the above terms follows. This is just to give you a general idea about the terms and flow of cases. It can not be a substitute for talking to a lawyer about your case but it will assist you and save you time if you have some grasp of these processes.
What is my matter listed for?
To check when a matter is listed for go to the following site: search court lists
This is the first time that a matter is listed in the Magistrates’ Court. On that date the matter can finish as a plea of guilty or be adjourned. If you are pleading not guilty the matter will be adjourned to a contest mention or straight to a contested hearing / plea of not guilty.
This is the second or subsequent listing of your matter. As with a first mention the matter can finish as a plea of guilty or be adjourned. If you are pleading not guilty the matter will be adjourned to a contest mention or straight to a contested hearing / plea of not guilty.
A contest mention is a step that is used to resolve matters that are going to be a contested hearing / plea of not guilty. The informant is expected to attend as are you and your lawyer. Your lawyer will have read the police brief, got instructions from you about what you want to happen and be able to advise the Magistrate what the issues in the case are.
The prosecutor and your lawyer will discuss whether the matter can be resolved before you get into Court. Charges are often withdrawn at contest mention as the Police may realise that they can not prove them or that what they are alleging did not happen.
The Magistrates will often give a sentence indication in a contest mention. This is where they will indicate to you what penalty you will get if you plead guilty at that stage and save the Court the further time of other hearings of your matter. You are in no way obliged to plead guilty and the Magistrate who hears the contest mention is not meant to hear the contested hearing.
Often the Magistrate will give a common sense evaluation of the strengths and weaknesses of the evidence against you.
At this stage your lawyer will indicate how many witnesses will be called (if any) and whether you are disputing specific pieces of police evidence, such as a record of the interview the Police had with you.
If the matter resolved to a plea of guilty it will either be heard on that same day or adjourned off to another date if you need to provide reports or references etc.
If the matter does not resolve at contest mention it then goes to what is called a contested hearing or a plea of not guilty.
Contested hearing or a plea of not guilty
All these terms mean the same thing. They are essentially the same process as a trial is in the higher courts. Witnesses can be called by prosecution and defence, they tell their version of events and then a decision is made as to whether the charges have been proved against you. In the Magistrates’ Court there are no juries and so the matter is decided by a Magistrate.
If the Magistrate finds you not guilty there is a discretion to award you payment of your costs. It is not something that you should rely on as happening as there are a number of factors that a Magistrate can take into account to not order payment of your costs.
Is where a plea of guilty is entered and then submissions are made on your behalf by your lawyer. Obviously the more positive things that can be put on your behalf the better result you will get. It is important to get character references from your work and references from people who know you well and can talk about your positive characteristics.
Is where the matter is adjourned for the Magistrate to decide what penalty they will impose. If sentencing is put off for quite a long time it is referred to as a deferral of sentencing.
If you, or your lawyers think the decision against you was wrong, or too harsh you can appeal from the Magistrates’ Court to the County Court.
You have 30 days from the date of the Magistrate making a final sentencing order against you to file an appeal. If you are late in filing an appeal you can put yourself in a position where your appeal will not be heard. You must fill out the paperwork at the Magistrates’ Court for an appeal and sign various documents.
If a Magistrate has imprisoned you, it is possible to apply for appeal bail.
This is the first Court appearance of a matter that will be going through a committal. It is the first opportunity that your lawyer will have to talk to the Prosecutor and the Informant about your matter. It is often very useful to discuss the matter with the Informant at this stage to get an idea of their view of the matter.
A prosecutor at the filing hearing may not be involved at any other stage and will generally not know anything much about the matter.
The Magistrate will set a date for the hand-up brief to be served on your lawyers by the Informant.
They will also set a date after you have received the hand-up brief for the committal mention.
Before the committal mention your lawyer will have discussed the contents of the hand-up brief with you and got instructions from you. You will then make a decision as to whether there are charges that you are contesting or not and whether if you will be pleading guilty there is a factual dispute.
If the matter is going to be a plea of guilty and there is no advantage in a committal then a date would be obtained from the County or Supreme Court and the matter would be adjourned by the Magistrate to that date.
If you want to contest charges or see a benefit in asking questions of some of the witnesses your lawyer will file a “Form 32” before the committal mention. A “form 32” tells the prosecutors what witnesses you want to call at the actual committal. You can also ask for other documents to be provided.
At the committal mention there will be a discussion with the Magistrate as to whether the prosecution object to you calling those witnesses and then discussion about booking the matter in for a committal (eg length of committal, availability of witnesses etc).
If the matter is booked in for a committal it may be booked in for a number of days depending on the number of witnesses or complexity of the issues.
Is ordered if there is an issue that needs to be checked prior to the committal. This could be an issue such as whether funding is in place or whether a particular witness is available
A committal decides whether there is sufficient evidence for you to go to the higher court. It is not deciding whether you are guilty of the charges.
The Magistrate at committal is deciding whether a jury properly directed could find you guilty. Not that they would find you guilty or that they will find you guilty.
It is a fairly low threshold test to be committed. The aim is to sort out what is worth proceeding with or as it is sometimes described “sorting the the wheat out from the chaff”.
At a committal it is the prosecution who are presenting their evidence. It is very unusual for the defendant or any of their witnesses to get in the witness box or give evidence at this stage.
The Magistrate at the end of the committal can dismiss all the charges against you if they do not believe there is enough evidence that you will be convicted.
At the end of the committal the defendant, you, are asked whether you plead “guilty” or “not guilty”.
If you plead guilty after a committal, your matter will normally go off for a plea of guilty in the County or Supreme Court.