Contest Mention

What is a Contest Mention?

In Victoria, a contest mention is a preliminary hearing that usually occurs prior to a matter being booked in for a contested hearing or plea of not guilty in the Magistrates’ Court of Victoria. It is typically the second hearing following the initial mention and is considered a preliminary hearing, which occurs when charges are being disputed.

The purpose of the contest mention is to identify the main issues in dispute, clarify the evidence, and explore the potential for resolution prior to the matter proceeding to a contested hearing. Contest mention is referred to in s55 of the Criminal Procedure Act 2009.

Contest mentions are convened in a separate list in the Magistrates Court of Victoria. 

What happens During a Contest Mention?

What happens at a contest mention depends on how the matter is proceeding. 

• Plea of guilty: If the matter resolves at the contest mention, it can proceed as a plea of guilty.

  • The facts will have been negotiated with the prosecutor either prior to the contest mention or on the day of the contest mention. If acceptable to all parties the matter will proceed as a plea of guilty.

• Sentencing Indication: This is where the court may provide an indication of the likely sentence if a guilty plea were entered.

  • In this situation the parties have not agreed to the appropriate charges or the facts of the case or both. In this circumstance your lawyer can put your side to the court along with other factors in mitigation seeking an indication of what sentence would be imposed if a plea of guilty was entered. Upon hearing the indication your lawyer will usually stand the matter down and seek your instructions about whether you would like to accept the sentence indication or not. The purpose of the sentence indication is to resolve cases. An accused person has no obligation to accept the sentence indication that is offered by the magistrate. 

• Adjournment: The matter may be adjourned to a further contest mention if more time is needed for preparation or negotiation.

  • The necessity for an adjournment can occur for all manner of reasons. The court is usually reluctant to adjourn a contest mention unless there is a very good reason. There are a myriad of reasons that might satisfy a magistrate that an adjournment is appropriate but this application should only be made by a lawyer that understands and specialises in criminal law.

• Contested Hearing: If the matter cannot be resolved at the contest mention and remains in dispute, it will be scheduled for a contested hearing where evidence and arguments will be presented.

  • If the matter is to be adjourned to a contested hearing, the contest mention becomes a more complicated hearing. Following discussions with the prosecution, a form 12 needs to be completed by the parties. This form outlines witnesses, legal issues and time estimates. 
  • In court there will usually be a more fulsome discussion that occurs between the magistrate, defence and the prosecution. That discussion will canvass the following;
  • Time estimates for the hearing: This will be determined by the number of witnesses, number of allegations and whether or not there are any co-accused. 

  • Witness requirements and availability: In relation to contested matters, discussions will focus on which witnesses are needed, whether they are available, and any scheduling considerations, such as whether remote witness facilities or an intermediary is required?

  • Assessment of the evidence: The magistrate will often ask the parties to identify the issue or issues in dispute. It is at this point that a well prepared defence lawyer can highlight the prosecution case weaknesses. This can put pressure on the prosecution to withdraw the charges.

  • Funding and representation: The court will often enquire whether there are any issues with funding, particularly when the matter is being adjourned for a contested hearing. If issues are raised, the magistrate might set down a special mention prior to the date of the hearing to confirm funding has been secured. 

  • Disclosure: In some circumstances the prosecution may not have provided all of the requested evidence to defence. This can be because of inadvertence; because it doesn’t exist or because the prosecution refuse to provide it on a legal basis. The contest mention is an opportunity for your defence lawyer to raise any of these issues with the magistrate and request that the magistrate make an order for compliance regarding any reasonable request made for relevant materials. 

• Ensuring that all of the evidence has been provided is the cornerstone of effective cross-examination.
  • Exposing inconsistencies during cross-examination challenges the credibility of the witness and strengthens the defence case by creating doubt. This is done by ensuring that all evidence is provided by police.
  • Often, certain records, as an example, SOCIT Interpose entries in sex offence cases, are not included in the police brief and must be specifically requested by your defence lawyer.
  • These types of materials can be the difference between being found guilty or not guilty.

This is where is it very important to engage specialist criminal lawyers, as many generalist lawyers don’t know what evidence they don’t have, until it is too late. 

While it was once common for the informant (the investigating police officer) to attend contest mentions, this practice has become less frequent.

Preparation before a contest mention

• Before the contest mention, your lawyer will review the brief of evidence, identify anything that is missing, assess your record of interview if there is one, and take detailed instructions from you. This preparation allows your lawyer to achieve the best outcome in your case, whether that be a lenient sentence or a withdrawal of all charges. 

What happens after a Contest Mention?

That all depends on what happens at the contest mention. These are the following four possibilities of what can happen after a contest mention:

1. The matter proceeds as a plea of guilty and will be finalised that day unless the magistrate adjourns the matter to consider an appropriate sentence or time is required regarding a community corrections order assessment.

2. The matter proceeds as a sentencing indication and the matter is finalised or if you do not accept the sentencing indication, the matter will be adjourned for a contested hearing.

3. The matter is adjourned to a contested hearing on a later date, where a magistrate will hear witness testimony and make a decision regarding your innocence or guilt.

4. The matter is adjourned for either a further contest mention, a plea of guilty or a contested hearing.

Each of these options provides different pathways depending on the case’s progress, the strength of the evidence, and any outstanding issues.

What will your lawyer do at a contest mention?

As already discussed that depends on how the contest mention proceeds:

• Your lawyer might discuss the weaknesses of the case with the prosecutor to attempt to get the charges withdrawn. This is always the first prize for any criminal lawyer as it saves the client, time, money, and further stress by not proceeding to a contested hearing.

• In suitable cases, your lawyer may highlight the strengths of your defence to the magistrate, which can increase pressure on the prosecutor to consider withdrawing the charges.

• Your lawyer may negotiate with the prosecutor to narrow the contested issues. This can sometimes result in the withdrawal of certain charges early on, reducing both hearing time and potential risks down the line.

• Your lawyer may identify missing evidence and request that the magistrate order the prosecution to produce it by a set date. Alternatively, your lawyer may subpoena this material.

• Your lawyer may clearly outline the legal issues to the magistrate. If the magistrate is on board regarding the futility of the prosecution case, this can sometimes lead to the magistrate applying pressure on the police to reconsider the merits of their case. 

Each of these steps aims to strengthen the defence’s position and improve the  potential outcome, whether through resolution or preparation for a contested hearing.

How long does a Contest Mention take?

• A contest mention typically lasts 5-10 minutes in court, but the preparation beforehand is crucial. Skilled negotiation can often lead to a highly favourable outcome.
• Engaging criminal lawyers who regularly appear in the local Magistrates’ Court can be advantageous, as their familiarity with the prosecutors, court staff, and magistrates often enhances their ability to achieve the best possible result at a contest mention.

Does my matter have to go to a Contest Mention?

• Not always. In straightforward cases where there is little chance of resolution, it may be possible to schedule the matter directly for a contested hearing, bypassing the contest mention. However, experienced criminal lawyers rarely recommend this approach, as it can miss an opportunity to obtain further disclosure or apply additional pressure on the prosecution to consider alternative outcomes.

Do I have to attend the contest mention?

• Yes, in almost all cases, an accused person must attend a contest mention whether you are on bail or not. The legislation at s55(4) of the Criminal Procedure Act 2009 makes it plain you must attend. But if you are unable to attend, it is crucial to engage a criminal lawyer well in advance to explore any alternative arrangements, which might include reporting to another court or appearing via video link. Failure to appear may result in a warrant being issued for your arrest or risk having the matter dealt with in your absence.
• A contest mention is a technical and important stage in the summary criminal trial process, with various potential outcomes and risks. Because of this, it is highly advisable to have a lawyer represent you.

Why engage an experienced criminal lawyer?

Working with a lawyer who specialises in criminal law and has extensive experience with contest mentions can make a significant difference in your case. Lawyers familiar with the local court system, magistrates, and prosecutors are often better positioned to negotiate effectively and prepare for a successful outcome, which may impact whether you are ultimately found guilty or not guilty.

If you have an upcoming contest mention, contact our office today to discuss how our experienced criminal lawyers can assist you.