Magistrates’ Court Procedure Melbourne, Victoria
There are various stages that occur in relation to matters that proceed in the Magistrates’ Court, or summary jurisdiction. If you have been charged with a summary offence it is important that you be aware of these procedures.
Charges filed
Police have 12 months from the date of the offence to file a summary charge with the Magistrates’ Court. There are no time limits in relation to indictable charges.
- A charge sheet must be filed with a registrar of the Magistrates’ Court, pursuant to section 6(1)(a) of the Criminal Procedure Act 2009 (CPA).
- You are entitled to a copy of your charges (section 32 of the CPA). The Informant (the police officer who charged you) then has 21 days to serve you with a copy of the preliminary brief (section 21(a) of the CPA). If the brief of evidence is requested by your legal representative then the Prosecution is required to provide a copy of the brief within 14 days of receipt of that request.
- Once the charge or charges are filed the Court will list the matter for mention (section 10(1) of the CPA).
First Mention
The First Mention is the first time the matter is listed before the Court. The matter may proceed in various ways at the First Mention. The police must provide a copy of the preliminary brief and the full brief if it is prepared (section 53A of the CPA).
Pursuant to section 53 of the CPA at mention hearing, the Magistrates’ Court may—
- If the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;
- Proceed immediately to hear and determine the charge;
- Fix a date for a contest mention hearing;
- Fix a date for a summary hearing of the charge; or
- Make any other order or give any direction that the court considers appropriate.
Plea of guilty
The charges may resolve and you may enter a plea of guilty. This would mean that your matter is heard before a magistrate and a sentence given at that time. Alternatively the matter may also be adjourned:
- to allow additional time for the matter to be prepared;
- to receive additional materials that have either not been provided by the police or that are needed for the plea date; or
- because you are entering a plea of not guilty, and the matter will need to proceed to a contest mention.
It is important that you seek the advice of an experienced criminal lawyer prior to entering a plea of guilty.
Right of appeal
If you are found guilty of an offence in the Magistrates’ Court then you are entitled to appeal that decision to the County Court.
You may appeal against sentence and conviction or sentence alone (section 254 of the CPA). You must file the appeal with the registrar of the Magistrates’ Court within 28 days of the sentence being imposed (section 255 of the CPA).
A copy of the Notice of Appeal must then be provided to the Informant in the matter within 7 days of filing it with the Magistrates’ Court (section 255(2) of the CPA).
The appeal will be conducted as a re-hearing or a de novo appeal, and you are not bound by the plea you entered in the Magistrates’ Court. The Judge in the County Court will hear the matter as if it is being heard for first time and is not permitted to give regard to the finding of the Magistrates’ Court.
Contest Mention
Contest mention is defined in the Criminal Procedure Act at section 55. There is an exhaustive list of matters that may need to be considered prior to attending a contest mention. The contest mention is a preliminary hearing often required prior to a matter proceeding to a contested hearing. If you are required to attend a contest mention follow the link for more information.
Contested Hearing
Should you decide to enter a plea of not guilty the matter must proceed to a Contested Hearing. Prior to this a case conference must be held. A Form 12 will be filed with the Court, signed by both the prosecutor and defence advocate. This will indicate the number of witnesses and/or their availability and any further issues as to why the matter is unable to resolve.
Under section 55 of the Criminal Procedure Act a Court may, instead of listing a Contest Mention, list a Special Mention. Or they may go straight from the First Mention to a Contested Hearing.
Case Conference
A Summary Case Conference is a conference between the prosecution and the accused for the purpose of managing the progression of the case (section 54 of the CPA). We will appear on your behalf at the Summary Case Conference and discuss the validity of the charges, any issues in dispute and the steps that need to be taken in order to advance the case. A Summary Case Conference must be held prior to the matter being listed for a Contest Mention or Contested Hearing.
Special Mention
At a special mention hearing, the Magistrates’ Court may—
- Change the date fixed by the court for any hearing in a committal proceeding; or
- Make any order or give any direction that the court considers appropriate for the management of the committal proceeding (section 153 of the CPA).
Although the Criminal Procedure Act only refers to special mentions applying in the committal stream and committal proceedings, they are often utilised through the summary hearing process. A special mention will usually be requested by the parties, either the defence, the prosecution or the magistrate on their own motion.
They will often be set down after a contest mention and just prior to a contested hearing to the court and the parties can be sure that something has been done. That might to ensure that the prosecution has provided all of the requested evidence or because there was some uncertainty about whether the matter might resolve. There are a myriad of reasons why a special mention might be set down.
- change the date fixed by the court for any hearing in a committal proceeding; or
- make any order or give any direction that the court considers appropriate for the management of the committal proceeding (section 153 of the CPA).
Sentencing indications
You may seek a sentence indication (section 60 of the CPA). The magistrate may indicate what sentence the Court would be likely to impose should you plead guilty to the charges and whether this would mean an immediate term of imprisonment or a sentence of another type. However, the Magistrate is under no obligation to provide a sentencing indication.
For further information call our Criminal Defence Lawyers
