Committal Proceedings in Victoria
The term ‘committal proceedings’ encompasses various preliminary hearings conducted in the Magistrates Court, each aimed at determining whether sufficient evidence exists for an individual charged with an indictable offence, to be committed for a trial in a superior court, such as the County or Supreme Court.
- The term committal proceedings includes the following hearings, filing hearings, committal mentions, committal case conferences and committal hearings.
- Charges listed within the committal stream primarily will be prosecuted by government solicitors, with the Office of Public Prosecution (OPP) handling offences laid under Victorian law and the Commonwealth Department of Public Prosecution (DPP) prosecuting offences laid under Commonwealth law.
- Any charges that stay in the committal stream will always begin in the Magistrates Court but end in the superior courts being either the County or Supreme Court of Victoria
- The only exception to this rule is where the charges are withdrawn at an early stage or where one of the parties makes an application for summary hearing.
If the matter is listed in the Committal Stream, then the matter will relate to a serious criminal charges.
The purpose of committal proceedings in the Magistrates’ Court
The purposes of committal proceedings are set out in section 97 of the Criminal Procedure Act 2009 (Vic) (CPA) are:
- to determine whether a charge for an offence is appropriate to be heard and determined summarily;
- to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
- to determine how the accused proposes to plead to the charge;
- to ensure a fair trial, if the matter proceeds to trial, by—
- ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;
- enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
- enabling the accused to put forward a case at an early stage if the accused wishes to do so;
- enabling the accused to adequately prepare and present a case;
- enabling the issues in contention to be adequately defined.
Procedure for committal proceedings
If an indictable offence is listed in the committal stream in Victoria, then a specific procedure will apply.
On the menu on your left you will see reference to, filing hearing, committal mention, committal case conference and committal hearing. Each of these titles represent a hearing type in the Committal Stream, as the matter moves through the magistrates court of Victoria.
If you have matters listed in the committal stream, then you would be wise to engage specialist criminal defence lawyers that do this work everyday. Charges listed in the committal court are always very serious and very serious consequences can flow from the case being handled badly.
Filing Hearing
- A filing hearing is the first stage in committal proceedings. Under section 102 of the Criminal Procedure Act 2009 (the CPA), a filing hearing must occur within 7 days of charges being filed with the court if you have been remanded in custody or have been granted bail. If you are on summons for the charges, a filing hearing must occur within 28 days of the charge being filed with the court.
- The magistrate will fix a date for the committal mention, fix a date for the hand-up brief to be served and make any other orders that are appropriate (see section 101 of the CPA).
- The hand-up brief contains all the evidence the police will seek to rely on to prove their case. The Informant is required to serve a copy of the hand-up brief (section 107 of the CPA) on the accused or their legal representative personally, and it must be served at least 42 days before the committal mention (section 109 of the CPA).
- Additionally, a case direction notice (also called a Form 32) must be filed at least 7 days before the committal mention, outlining which witnesses the defence wishes to be called and any other evidence or material they want to obtain from the prosecuting agency (section 118 of the CPA).
Follow this link for more about filing hearings.
What is a Hand-up Brief?
- A Hand-up Brief is what the evidence is called in relation to charges that are filed in the committal stream in Victoria.
What is in the Hand-up Brief?
- The Hand-up brief will contain; a summary of facts; a witness list; an exhibit list; the corresponding evidence; your criminal or traffic record; a transcribed copy of your record of interview; and any other evidence relied upon by police to prove the charges.
- What can sometimes be more important regarding the hand-up brief is what is not in the brief. It always very important that an experienced criminal lawyer considers the brief carefully to determine what is missing. It is common place that police will not provide all the evidence in the first instance, it would be very rare for a criminal lawyer to not to make further requests for evidence regarding a matter in the committal stream.
Committal Mention
- The committal mention is the second step in the committal process. It is a preliminary hearing that takes place before the full contested committal hearing. Any matters in dispute will be discussed.
- The magistrate may hear and determine an application to cross-examine witnesses, set a date for the committal hearing, or make any other orders they deem appropriate (section 125 of the CPA).
- A committal mention must be held within 6 months after the commencement of the criminal proceeding for the offence (section 126(1)(b) of the CPA). An exception applies if the matter relates to a sexual office, in which case a committal mention must be held within 3 months after the commencement of criminal proceedings (section 126(1)(a) of the CPA).
- The Magistrate may order a more extended period for holding a committal mention if it is in the interest of justice to do so (section 126(2) of the CPA).
Follow this link to learn more about what can happen at a Committal Mention.
Committal Case Conference
- A committal case conference is a type of proceeding that occurs at a committal mention.
- It is like a summary case conference, that occurs in the summary stream, but is far more formal and far more complex.
- A committal case conference is a case management tool. It is used by the courts to advance the matter and encourage a timely and efficient resolution of the issues in relation to a matter. It is not unusual for a committal mention to be adjourned to a further committal mention but listed as a committal case conference.
- A committal case conference provides a forum that allows the prosecution, defence and magistrate to identify and discuss the issues and consider the best way to resolve them.
- As can be seen at s127 of the CPA 2009, a magistrate may direct the parties to appear at a committal case conference. The legislation indicates that committal case conference should be held on the same day as the committal mention.
- The purpose of the committal case conference is to promote an open discussion as to the strengths and weaknesses of the case to assist in resolution. Not all cases are appropriate for a committal case conference and a magistrate will usually only set the matter down for a committal case conference if all the parties are in agreement that it will be helpful.
- Per s127(3) of the CPA, anything that is said or done during the committal case conference, as well as any documents prepared solely for that conference, will be deemed inadmissible as evidence at a later date, unless all parties agree otherwise.
Committal Hearing
- At the committal hearing, the Magistrate will hear evidence and determine whether the evidence is strong enough to support a conviction (section 128 of the CPA).
- At this stage, if appropriate the magistrate may entertain a summary jurisdiction application. If the court grants the application, it means the matter will proceed as a summary hearing. If the contested committal has already commenced, the magistrate may use the oral evidence of witnesses, witness statements and documents or exhibits tendered in the committal as evidence in the summary hearing with the accused’s consent. The court must call or recall any witnesses who are required for cross-examination, and the proceeding otherwise continues as a summary hearing.
- If there is no summary jurisdiction application made, the committal hearing will be the last hearing that will take place in the Magistrates’ Court before the matter proceeds to a higher jurisdiction, either the County or Supreme Court.
- At the completion of the committal hearing, the court must make one of the following orders (section 141(4) of the CPA):
- If the court deems the evidence to be insufficient to support the conviction of an indictable offence, then it must discharge the accused; or
- If the court determines that the evidence is sufficient to support a conviction, it must commit the accused to trial.
Follow this link for more information on ‘What is a committal hearing?‘
What is the Difference Between a Committal Mention and Committal Hearing?
- The primary difference between a committal mention and a committal hearing is that a committal mention is a shorter preliminary hearing where no evidence is called, whereas the committal hearing is an opportunity to cross examine witnesses.
- Make no mistake, a committal mention might be a faster hearing at court, but it is a very important stage in the proceedings to ensure that the best outcome is achieved.
What are Considered Serious Indictable Offences
- Serious indictable offences are charges that can only be dealt with in the indictable stream.
- Examples of serious criminal charges that can only be dealt with in the indictable stream.
