Contest mention hearing

What Is a Contest Mention?

A contest mention is a preliminary court hearing held in the Magistrates’ Court of Victoria following a not guilty plea, occurring before the case moves to a contested hearing. It is regulated by section 55 of the Criminal Procedure Act 2009 (Vic).

The purpose of a contest mention, as outlined in Magistrates’ Court Practice Direction 3 of 2015, is twofold: to allow the court to efficiently manage the case and to give the involved parties an opportunity to resolve some or all issues in dispute prior to scheduling a full contested hearing.

Usually, a contest mention is scheduled after the first mention hearing. According to Practice Direction 3 of 2015, these hearings are conducted separately and are not included within any other court listing.

Who Is Required to Attend?

Section 55(4) of the Criminal Procedure Act 2009 (Vic) mandates that the accused must be present at all contest mention hearings, regardless of whether they are on bail or in custody. If attendance is impossible, it is essential to contact your lawyer immediately.

The prosecutor is expected to attend, along with your legal representative. While the informant, the police officer who filed the charges, was traditionally expected to attend, it is now less common for the informant to be present at contest mentions. 

Prior to the Hearing

Before the case is called before the Magistrate, your lawyer will typically meet with the prosecutor. This is a routine part of the contest mention process.

During this discussion, your lawyer will review the evidence, gather your instructions, and identify key issues in dispute. They may also explore the possibility of resolving some charges, raise concerns about disclosure, and inform the prosecutor about witnesses the defense plans to call or any contested police evidence, such as interview records.

Charges may sometimes be dropped during a contest mention if the prosecution recognizes weaknesses in their case, circumstances have changed, or the defense submits written arguments highlighting problems with the prosecution’s case. Whether charges are withdrawn depends entirely on the specifics of each case.

What Occurs Before the Magistrate?

After initial discussions, the case proceeds to be called before the Magistrate. Under section 55(3) of the Criminal Procedure Act 2009 (Vic), the Magistrates’ Court has several case management powers during a contest mention, including:

• Setting or adjusting the date for the contested hearing
• Clarifying the issues in dispute
• Requiring disclosure of relevant materials
• Confirming whether the accused has legal representation and funding for continued legal support through to the hearing
• Identifying any special requirements for witnesses or interpreters
• Making any other orders necessary to manage the case effectively

Your lawyer will inform the Magistrate about the case issues, the number of witnesses expected, any disputed police evidence, and the anticipated duration of the contested hearing.

Can a Matter be Resolved During a Contest Mention?

Yes. When the involved parties reach an agreement, several resolution options are available:

• Guilty plea — If you choose to admit guilt, the case can either be adjourned for a plea hearing or, if the court has enough time and sufficient material before it, proceed directly to sentencing on that day.
• Withdrawal of charges — The prosecution might opt to drop one or more charges.
• Charge amendments — The prosecution may agree to modify the charges, which you then plead guilty to.
• Diversion — Under s 59 of the Criminal Procedure Act 2009 (Vic), where the accused acknowledges responsibility for the offence and both the prosecution and the accused consent, the court may adjourn the matter for the accused to complete a diversion program. Eligibility depends on the nature of the offence and the circumstances of the case.

If no resolution is achieved, the Magistrate will set a date for a contested hearing.

Sentence Indications

During a contest mention, the Magistrate has the authority to provide a sentence indication under s 60 of the Criminal Procedure Act 2009 (Vic). This indication offers an idea of the type of sentence the Magistrate might impose if you decide to plead guilty at that point. Specifically, under s 60(1), it can include an indication of:

• Whether an immediate custodial sentence is likely; or
• The general type of sentence that might be imposed.

It’s crucial to understand that there are significant legal implications and limitations associated with relying on a sentence indication.

Legal Effects and Limitations

• Binding Nature on Sentence Type: Pursuant to s 61(1) of the Criminal Procedure Act 2009 (Vic), if the Magistrate provides a sentence indication and you plead guilty at the earliest opportunity, the court cannot impose a more severe type of sentence than the type of sentence indicated. For instance, if a non-custodial sentence is suggested, the court cannot then impose immediate imprisonment. This indication pertains to the general type of sentence, not specific penalties within that category.
• Implications of Not Pleading Guilty Promptly: Under s 61(1)(b), if you do not plead guilty at the first opportunity after a sentence indication is given, the magistrate who will hear and decide the case must be different, unless all parties agree otherwise. This means the original magistrate who provided the indication will not conduct the contested hearing.
• Lack of Binding Effect on Different Magistrates: According to s 61(3), a sentence indication does not bind any other magistrate or court. If your case is adjourned and heard by a different magistrate, the prior indication carries no binding weight.
• Court’s Discretion to Decline: As per s 60(2), the Magistrate can refuse to give a sentence indication if there isn’t enough information about how the offence impacted any victim.
• Confidentiality: Under s 61(5), requests for a sentence indication and their outcomes are not admissible as evidence against the accused in any legal proceeding.
• No Obligation to Plead Guilty: Receiving a sentence indication does not oblige you to plead guilty. Its purpose is to help you make an informed decision. It’s advisable to consult your lawyer before deciding how to proceed.

The Magistrate Handling the Contest Mention

Under Practice Direction 3 of 2015 of the Magistrates’ Court of Victoria, unless the parties agree otherwise, the Magistrate who hears the contest mention will not hear the trial of the proceeding. Where a sentence indication has been given and the accused does not plead guilty at the first available opportunity, this separation is also given statutory force by s 61(1)(b) of the Criminal Procedure Act 2009 (Vic).

What Happens if the Matter Remains Unresolved?

If the case does not settle during the contest mention, the Magistrate will schedule a contested hearing, with the date determined based on witness availability and expected hearing duration.

In some instances—particularly when the issues are straightforward and resolution seems unlikely—the court might set the case directly for a contested hearing without a prior contest mention. Nonetheless, experienced criminal lawyers generally recommend attending a contest mention whenever possible, as it provides opportunities for further disclosure, exploring resolution options, and applying pressure on the prosecution before facing the costs and uncertainties of a contested hearing.

Preparation Tips

To maximize the chances of a positive outcome during your contest mention:

• Engage your lawyer early. Adequate time is needed for them to review the evidence, take your instructions, and prepare submissions for the prosecution.
• Go through the evidence with your lawyer. Understanding the prosecution’s case helps identify weaknesses and formulate your response.
• Think carefully about your options. Discuss with your lawyer whether to seek a sentence indication, pursue charge withdrawal or amendments, and assess the likelihood of success at a contested hearing.
• Attend the hearing. Your presence is required under s 55(4) of the Criminal Procedure Act 2009 (Vic).

Frequently Asked Questions

Is my attendance at the contest mention required?

Yes. According to section 55(4) of the Criminal Procedure Act 2009 (Vic), it is mandatory to be present at all contest mention hearings. If you cannot attend, you must notify your lawyer without delay.

Can charges be dropped during a contest mention?

While it is possible, it is not certain. The decision depends on the strength of the prosecution’s case, the arguments your lawyer presents, and the prosecutor’s evaluation of the evidence.

What does a sentence indication mean?

A sentence indication is a signal from the Magistrate about the potential sentence if you choose to plead guilty at that point. Under section 61(1) of the Criminal Procedure Act 2009 (Vic), if you plead guilty at the earliest opportunity following the indication, the court is restricted from imposing a more severe type of sentence than the type indicated. It is advisable to consult your lawyer before acting on a sentence indication.

Will the Magistrate overseeing the contest mention conduct my contested hearing?

Typically, no. Under Practice Direction 3 of 2015 of the Magistrates’ Court of Victoria, unless the parties agree otherwise, the Magistrate who hears the contest mention will not hear the contested hearing. Where a sentence indication has been given and the accused does not plead guilty at the first available opportunity, this separation is also given statutory force by s 61(1)(b) of the Criminal Procedure Act 2009 (Vic).

What happens if the case does not settle?

The case will be scheduled for a contested hearing. The court will select a date, considering how many witnesses there are and the expected duration of the hearing.

Can I change my mind and plead guilty after the contest mention?

Yes. You are permitted to switch your plea from not guilty to guilty at any point prior to the court delivering a verdict. Under section 5(2)(e) of the Sentencing Act 1991 (Vic), the court considers whether and when you changed your plea. The sooner you plead guilty, the more likely you are to receive a reduced sentence. Contact your lawyer promptly if you are contemplating changing your plea.