Magistrates’ Court Procedure in Victoria
Criminal matters before the Magistrates’ Court of Victoria can involve several complex stages of 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.
Magistrates’ Court Rules in Victoria
In Victoria, the Magistrates’ Court hears and determines summary offences and indictable offences triable summarily. It is therefore known as the ‘summary jurisdiction’.
If you plead guilty to an offence in the Magistrates’ Court, you may have your matter finalised in one day. However, if you plead not guilty and wish to contest your matter, the legal process becomes longer and more complex.
Each stage of the legal process in the Magistrates’ Court is explained below.
It is important that you obtain legal advice as soon as possible after being charged. An experienced criminal lawyer can consider the merits of your case and advise you as to whether you should plead guilty or not guilty.
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.
Filing of Charges
Criminal proceedings are commenced in the Magistrates’ Court with the filing of charges. The police have 12 months from the date of the offence to file a summary charge with the Magistrates’ Court. However, no time limit exists in relation to indictable offences triable summarily.
You may be made aware of police charges by:
- A ‘notice to appear’: a document given to you at the time of the alleged offence which nominates a date that you must attend court; or
- ‘Charge and summons’: a court order for you to appear before the court on a certain date to answer police charges; or
- A ‘bail notice’: a document that you sign as a promise to attend court and face charges on a certain date.
Once a charge is pending against you in the Court you are referred to as ‘the accused’.
The police must file a ‘charge sheet’ with the registrar of the Magistrates’ Court (s6(1)(a) Criminal Procedure Act 2009 [CPA] (Vic)). You are entitled to a copy of the charge sheet which details the particulars of the charge (s32 CPA). Further, the police officer who charged you (known as the ‘informant’) must serve you with a copy of the ‘preliminary brief’ within 21 days of filing the charge sheet (s24 CPA). The preliminary brief details the prosecution’s case but need not include evidence such as witness statements. If your legal representative requests a full brief of evidence, the informant must provide a copy at least 14 days before a ‘contest mention’, or if no contest mention is held, the summary hearing. The full brief must contain the evidence the informant will rely on at the summary hearing.
Your charge sheet might state your matter is listed for a ‘mention’ or a ‘filing hearing’. If your case is listed for a ‘mention’, it is likely that your matter will be heard and determined in the Magistrates’ Court. However, if your case is listed for a ‘filing hearing’, your matter may start in the Magistrates’ Court but then proceed to a higher court.
First Mention Hearing
Once the police have filed charges with the Magistrates’ Court, your matter will be listed for mention (s10(1) CPA). The ‘first mention hearing’ is the first time that your matter is brought before the Court and ‘mentioned’ in the Court’s lists. Your matter may proceed in one of several different ways, depending on the circumstances and whether you intend to plead guilty or not guilty.
If you wish, you can plead guilty to a summary charge during the mention hearing. Should you do so, the Court may hear and finalise your matter on the spot. That is, the Magistrate may convict you and impose an appropriate penalty on the day.
If you plead not guilty to a summary charge, the Court may adjourn your matter for either a ‘contest mention’ or a ‘contested hearing’. This will give you time to seek legal representation or gather supporting documents if you haven’t done so already. The Court might also make any further directions that it deems appropriate.
If you are charged with an indictable offence that may be heard summarily, the Court may grant and fix a date for a ‘summary hearing’. The Court may also adjourn a matter during the first mention hearing if you are being held in custody and wish to make a bail application. Finally, your matter may also be adjourned for a ‘further mention’ or ‘case conference’ if the Court wishes to resolve any issues or manage the progression of the case at a later date.
Summary Case Conference
A summary case conference is a discussion between the prosecution and the defence counsel. The purpose of the case conference is to identify and resolve any areas of disagreement between the parties before the progression of the matter in court. Most importantly, the defence can request during the case conference that the prosecution identify and provide any information, document or thing that will assist the defence to understand the evidence available to the prosecution.
If you have a lawyer and have been given the preliminary brief of evidence, a summary case conference must be conducted before the matter can proceed to a contest mention or contested hearing. The conference may be conducted via phone, email or in person.
If you plead not guilty to a summary charge, it is likely that the Magistrates’ Court will adjourn the matter to a ‘contest mention’, though sometimes cases can be adjourned directly from the first mention hearing to a contested hearing.
The contest mention is a hearing where the Court tries to resolve the matter before it is further adjourned to a ‘contested hearing’, or minimise the issues in dispute. By the time of the contest mention, your lawyer will have read the brief of evidence, advised you of your legal options and taken instructions from you about how you would like the case to proceed. This way, when you attend the contest mention, your lawyer can explain the points of disagreement in your case to the Magistrate.
Once the points of disagreement are raised, your lawyer and the prosecution will discuss whether the matter can be resolved on the spot. Your lawyer may attempt to have charges withdrawn by pointing out weaknesses in the prosecution’s case and strengths in the defence’s case. Should the issues be resolved during the contest mention, the Magistrate will often indicate the penalty that you will receive if you plead guilty at this stage. You can then decide whether you wish to plead guilty or not guilty to the remaining charges.
If the matter cannot be resolved at the contest mention and you still wish to plead not guilty, your matter will be adjourned for a contested hearing. Your lawyer will indicate to the Court which specific pieces of police evidence you wish to dispute at the hearing. The Magistrate may make an order to ensure that all of the prosecution’s evidence is provided to the defence before the contested hearing. Both parties might also need to provide the Court with an estimate about the amount of time needed to hear the matter and the number of witnesses to be called. The Court may also make general directions as to the running of the contested hearing and discuss anything else deemed relevant by the Magistrate.
As part of the Magistrates’ Court procedure, if you continue to plead not guilty to any or all charges after the first mention hearing and/or contest mention, the matter must proceed to a contested hearing. A contested hearing is also sometimes referred to as a ‘plea of not guilty’ and is essentially a trial of the accused in relation to the charges.
During the contested hearing, the prosecution will attempt to establish its case against you by calling evidence that proves its allegations. Evidence may include the testimony of witnesses, who are examined by the prosecutor and then cross-examined by the defence. Once the prosecution has called all its evidence, the accused may then call evidence, but is not required to do so.
At the end of the defence case, the parties may address the Magistrate. After the Magistrate has heard both parties’ arguments in whole, he or she will make a judgement on the matter. That is, they will decide whether you are guilty or not guilty of the charge/s based on the evidence. If you are found guilty, the Magistrate will determine an appropriate penalty and impose that penalty upon you. However, if you are found not guilty, the Magistrate has discretionary powers to award you payment for your costs in some circumstances (paid by the prosecution).
Other Procedural Steps
An appeal is the process whereby a higher court reviews a decision made by a lower court. If you are found guilty of an offence in the Magistrates’ Court of Victoria, you have the right to appeal against either:
- The sentence (i.e. the penalty imposed); or
- The conviction (i.e. the finding of guilt) and the sentence.
To initiate an appeal against a Magistrates’ Court decision, you must lodge a Notice of Appeal within 28 days. The Notice must be filed with the Registrar of the Magistrates’ Court.
If the accused fails to attend court for a summary offence hearing, the Court may hear the matter in their absence. This is known as an ex-parte hearing. The Magistrate may proceed to hear and determine the matter based on:
- The prosecution’s evidence;
- The preliminary brief; and
- Any witnesses.
However, if the Court does not want to hear the case in your absence, they may adjourn the matter to a later date and order a warrant for your arrest.
At the first mention hearing, the Magistrate may adjourn the matter to a ‘special mention’ instead of a contest mention or a contested hearing. During the special mention, the court and both parties will identify issues that can be resolved in order to avoid a contested hearing.
What to Do Before Attending the Magistrates’ Court
If you have been charged with an offence, it is important that you seek the assistance of 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 regarding the Magistrates Court’ procedure or need representation in relation 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.