County and Supreme Court Procedure in Victoria
Criminal matters before the County and Supreme Courts of Victoria involve several stages of complex legal procedure. If you have been charged with a criminal offence, please contact our defence experts at Sher Criminal Lawyers immediately for specialist legal advice and representation.
County Court and Supreme Court Rules in Victoria
The majority of indictable criminal matters are heard in the County Court of Victoria. However, the most serious indictable offences (including murder, manslaughter and treason) are heard in the Supreme Court of Victoria.
An indictable matter will only proceed to the County or Supreme Court after it has passed through the committal stream in the Magistrates’ Court.
Each stage of the legal process in the County Court and the Supreme Court is explained below.
It is important that you obtain legal advice as soon as possible after being charged with an offence. An experienced criminal lawyer can consider the merits of your case and advise you as to your legal options.
If you have been charged with an offence, please contact our expert defence team at Sher Criminal Lawyers immediately for specialist legal advice and representation.
Pre-Trial Procedure and Disclosure
Following committal proceedings, the prosecution prepares ‘depositions’. This is a copy of all the material that was tendered during the committal, and a transcript of the committal hearing. The depositions are then submitted to the Criminal Trial Listings Directorate and served on the accused or their lawyer.
The prosecution will prepare and serve a ‘prosecution opening’ on the accused. This document outlines the charges and the factual basis on which the prosecution intends to proceed in the matter. The accused must then file a ‘defence response’, outlining the acts, facts, matters and circumstances the accused disputes and the basis for that dispute. A directions hearing will then be heard before a Judge, to manage the trial and minimise the issues to be dealt with when a jury is struck. The Judge might encourage a resolution, and the accused and prosecution might negotiate an acceptable resolution before, during or after the directions hearing. If the accused intends to plead guilty as a result of the case conference, the Judge will fix a date for that plea. However, if the accused still intends to plead not guilty, the Judge will fix a date for a final directions hearing before the matter proceeds to trial.
The Court may hold numerous directions hearings to manage the progress of the case before the commencement of the trial.
During the directions hearing, the Judge, the prosecution and the defence can discuss and resolve any pre-trial issues that may still exist. This might include discussing:
- The direction of the trial
- The availability of witnesses
- The filing of the Crown Opening and the Defence’s Response
- Whether adequate funding is in place
- Any other issues that might affect the fair and efficient progression of the trial
The accused may be arraigned during any stage of the pre-trial period. Arraignment is the process whereby the defendant appears before the Court and formally has all of their charges read to them from the ‘indictment’. The indictment is the court document which formally sets out all of the criminal allegations against the accused. As each alleged offence is read out, the accused is asked to reply with a plea of guilty or not guilty.
If the accused pleads guilty at the arraignment, the matter will be adjourned for a sentencing hearing. At the sentencing hearing, the Court will hear submissions from the defence and the prosecution in regard to the sentence that should be imposed against the accused.
If the accused intends to plead not guilty, the formal arraignment must occur in the presence of the jury panel. This formal arraignment marks the commencement of the accused’s trial.
Trial – Opening Addresses
To begin the trial, the Judge will give their opening remarks to the jury. This is an opportunity for the Judge to explain the trial process to the jury members. Most importantly, the Judge will give the jury directions as to how they should assess the evidence presented throughout the trial. The Judge will also ask the jury to select a foreperson, who will be the spokesperson for the jury.
After Judge’s opening remarks, the prosecution will give its opening address to the jury. During the prosecution’s opening, it will outline its case against the accused so that the Judge, jury and the defence can understand its argument. The prosecution’s opening should not differ dramatically from the Crown Opening document it filed and served in the pre-trial stage.
After the prosecution’s opening, the defence will give its opening address to the jury, responding to the prosecution by identifying the issues in contention. Again, the defence’s opening remarks should not differ dramatically from the Defence Response document filed and served in the pre-trial stage.
Trial – Prosecution Case
Trial – Defence Case
After the prosecution has called all its evidence, it ‘closes’ its case. The defence can then do one of three things:
- Put it to the court that there is no case to answer based on the evidence presented in the prosecution’s case;
- Respond to the prosecution’s case by giving evidence or calling evidence from other witnesses; or
- Choose not to give evidence or call any witnesses.
There is no obligation on the defence to give evidence. The accused has the right to remain silent if they wish. This is because the defence does not bear the onus of proving that the accused is not guilty, or of calling any evidence (unless the accused wishes to raise a specific defence to the charge, and that defence is not raised by any of the evidence in the prosecution case). If the prosecution cannot prove beyond a reasonable doubt that the accused is guilty, the defence does not have to say or do anything more to prove that the accused is not guilty. However, in some cases, the defence will choose to give evidence or call further witnesses to disprove the prosecution’s allegation.
Trial – Closing Addresses
Once the prosecution and the defence have presented their cases, both parties are given the opportunity to make a closing address to the jury and sum up their evidence.
The Judge will also make a closing address to the jury, during which he or she will give the jury directions as to how the jury should assess the evidence and properly consider the verdict.
Trial - Jury Deliberations and Verdict
After the completion of the closing addresses, the jury will retire to consider its verdict. However, the jury may return to court at any stage during its deliberations to ask the Judge questions, seek further directions from the Judge or be reminded of the evidence that was presented.
Once the jury has reached its verdict, all parties are assembled in the courtroom before the Judge. The Judge’s associate then asks the foreperson for the jury’s verdict in relation to each charge on the indictment.
If the jury returns a verdict of guilty in relation to any charge, the accused is immediately found guilty of that charge as of that moment. In this case, the Court will fix a date for a sentencing hearing. However, the Judge retains the power to set aside a verdict in some circumstances.
If the jury returns a verdict of not guilty on all of the charges, the accused is acquitted of all charges and released unconditionally.
After a person is found guilty of a charge/s by a jury, the Court will set a date for a sentencing hearing. During the sentencing hearing, the Judge will hear submissions from both the prosecutions and the defence counsel in regard to what sentence should be imposed upon the offender.
During the sentencing hearing, issues that may be raised by the prosecution or defence include:
- The facts of the case
- The offender’s circumstances (e.g. criminal record or displays of remorse)
- Relevant sentencing principles
- The type of penalty that will be imposed (e.g. a community corrections order or imprisonment)
- Examples of sentences in similar cases
The victim may have also prepared a Victim Impact Statement which will be read out at the hearing by the victim or the prosecution.
What to Do Before Attending Court
If you have been charged with a criminal offence, it is important that you seek assistance from an experienced criminal lawyer as soon as possible. Our expert defence team at Sher Criminal Lawyers will help you to secure the best possible outcome in your matter by applying our specialist knowledge of the criminal law and the Victorian justice system.
Please contact us immediately if you require legal advice and representation in regard to a criminal matter. We are available 24/7 and offer free consultations by way of Zoom, FaceTime or in person at our Melbourne and Moorabbin offices.