Types of Hearings in Criminal Proceedings in Victoria there are three levels of court. The entire court process for less serious crimes are called summary offences. Summary offences are usually less serious offences. They are heard by a judicial officer in the Magistrates’ Court rather than by a judge and/or jury. If you have been charged with a summary offence, you should seek legal advice. The court process for most serious crimes are called indictable offences. Indictable offences can range from theft, cause injury and drug offences to more serious matters such as rape, armed robbery. Some indictable offences may be heard in the Magistrates’ Court by way of summary hearing in the same way as summary offences are heard – your lawyer can advise you if this applies to your offences. An accused person has the right to have their matter determined in a higher court before a judge and/or jury. If you have been charged with an offence, you should seek legal advice.

The Magistrates’ Court handles:

the entire court process for less serious crimes (called summary offences)
the pre-trial stage of the court process for most serious crimes (called indictable offences).

1. Summary offences

Summary offences are usually less serious offences. They are heard by a judicial officer in the Magistrates’ Court rather than by a judge and/or jury. If you have been charged with a summary offence, you should seek legal advice.

Examples include:

road traffic offences – for example, careless driving, drink driving and unlicensed driving
minor assaults
property damage
offensive behaviour.

Court process for summary offences

The first stage: The mention hearing

All summary cases begin as a mention hearing.

Mention

In the Magistrates’ Court, all summary matters begin as a mention hearing. This is the first date on which the matter is listed before the court. If the accused pleads guilty the matter can be heard and determined at the mention hearing.

Summary offences make up most matters heard in the Magistrates’ Court and can include:

disorderly behaviour
some assault offences
driving offences
wilful damage to property.

See the Summary Offences Act 1966 for more information.

Generally, the prosecuting agency has 12 months from the date of the offence to start court proceedings.

If you have been charged with a criminal offence you may be eligible for the Criminal Justice Diversion Program. See the diversion page for more information.

There are different types of hearings in the summary stream of the Magistrates’ Court.

In this hearing:

the charge (the crime or offence) is read out to the accused person
the accused person can plead guilty (which means they agree they have done the crime) or not guilty.

If the accused person pleads guilty, the magistrate will need to decide the penalty (also called the sentence).

The magistrate may:

make a decision on the day
postpone their decision and sentence the accused person on a later day. This can be called an adjournment.

Summary Hearing

A summary hearing will take place if the accused pleads not guilty to the charge(s). At this hearing, both parties present their case to the Court and a magistrate will determine the outcome.

Ex parte Hearing

A hearing conducted in the absence of the accused. A magistrate will proceed to hear and determine a charge against the accused, based on the evidence of the police or other informant and any other witnesses for the prosecution.

Second stage: The contest mention and the contested hearing

If the accused person pleads not guilty at the mention hearing, the case will move to the contest mention. This may happen on the day, but usually will be adjourned (postponed) to a later day.

Contest mention

During the contest mention, the parties (the prosecuting team, the defence team and the magistrate) may:

come to an agreement on whether the accused person is guilty or not guilty. If this happens the case will not need to go to a contested hearing
decide that the case needs to go to a contested hearing
make decisions about what needs to happen at the contested hearing, including what witnesses will need to give evidence.

Contested hearing

At a contested hearing, the prosecution and defence legal teams present their case to the court and a magistrate will find the accused person guilty or not guilty. It is like a trial, but there is no jury.

If you are needed as a witness in the case, you will:

get a summons letter telling you where and when the case will be
give evidence at the contested hearing.

Sentencing and Victim Impact Statements

If the accused person pleads guilty or is found guilty at any time in the case:

they may now be called the offender
the magistrate will decide what penalty (sentence) they should receive.

You can learn more about penalties and sentences.

Any person who has been affected by the crime can submit a Victim Impact Statement.

This is your chance to tell the court how the crime has affected you. The magistrate will consider what you have said as one of many things they consider when they are deciding the sentence.

Table 1 – Service Obligations in Summary Proceedings

Type of document	Time for service	Type of service	CPA 2009 sections
Preliminary brief on request	Within 14 days of the accused’s request	Personal service, unless informant satisfied that ordinary service is appropriate	s35, s36
Preliminary brief following notice to appear	Within 7 days of filing the charge-sheet	Personal service, unless informant satisfied that ordinary service is appropriate	s24
Full brief on request	At least 14 days before contest mention hearing or, if there is no contest mention hearing, at least 14 days before the summary hearing	Personal service, unless informant satisfied that ordinary service is appropriate	s39, s40
Continuous disclosure by informant	As soon as practicable after the material comes into the informant’s possession	Ordinary service	s42
Expert evidence notice	At least 7 days before contest mention hearing or, if there is no contest mention hearing, at least 7 days before the summary hearing. If it is not available at that time, as soon as possible after it becomes available	Service on informant or DPP	s50
Alibi notice	At least 7 days before contest mention hearing or, if there is no contest mention hearing, at least 7 days before the summary hearing. If it is not available at that time, as soon as possible after it becomes available	Service on informant or DPP	s51
Transcript of pre-recorded evidence to the accused	At least 14 days before the contest mention hearing or, if there is no contest mention hearing, the summary hearing	Personal service on the accused or ordinary service on practitioner representing the accused	s367, s368
Application for leave to cross-examine on the sexual activities of the complainant	At least 7 days before the summary hearing	Service on informant or DPP	s342, s344
Sentence for summary offence on absent natural person	None specified	Written notice to the person at the address of the person listed on the register kept under s18 of the Magistrates’ Court Act 1989	s87
Sentence on absent corporate accused	None specified	Service on a body corporate	s82
Notice of application for rehearing on informant	Within 7 days of filing the notice	Service on informant or DPP	s90
Notice of application for rehearing on accused	Within 7 days of filing the notice	Personal service	s90
Application for stay of licence suspension or cancellation	At least 7 days before applying for the stay	Service on informant or DPP	s91

When determining whether to serve a preliminary brief or full brief by ordinary service, the informant must consider whether that is appropriate all the circumstances, including:

(a) the nature and gravity of the alleged offence;

(b) whether the accused has previously been found guilty or convicted of any similar offence;

(d) the manner of service of the summons to answer the charge (CPA 2009 s36(2), s40(2)).

2. Indictable offences

Indictable offences are usually more serious offences. An accused person has the right to have their matter determined in a higher court before a judge and/or jury. If you have been charged with an offence, you should seek legal advice.

Indictable offences can range from theft, cause injury and drug offences to more serious matters such as rape, armed robbery, murder and treason. See the Crimes Act 1958 for information about offences deemed as indictable.

Some indictable offences may be heard in the Magistrates’ Court by way of summary hearing in the same way as summary offences are heard – your lawyer can advise you if this applies to your offences. See the summary offences page.

Offences that have longer terms of imprisonment or higher maximum fines than what the Magistrates’ Court can impose must be heard by a judge and/or jury in a higher court. Examples of these offences include murder, rape, armed robbery and serious drug offences. See the committal proceedings page for more information.

Indictable offences are more serious and include:

aggravated burglary
indecent assault
drug trafficking offences
sexual assault
manslaughter
murder.

The Magistrates’ Court handles the first part of the court process for indictable offences. The magistrate must decide whether there is enough evidence for the case to go to the County or Supreme Court for a trial with a judge and jury.

The pretrial court process for indictable offences

3. Committal proceedings

Committal proceedings are court hearings held in the Magistrates’ Court to decide whether there is sufficient evidence against an accused person charged with a serious criminal offence to order them to face trial in a higher court.

The types of hearings that may be held in a committal proceeding are:

filing hearing;
special mention hearing;
compulsory examination hearing;
committal mention hearing;
committal case conference;
committal hearing (CPA s100(1)).

First stage: The Committal mention

A committal mention is used to decide:

the date of the committal hearing
which witnesses are required to attend the committal hearing.

Normally, victims of crime don’t have to give evidence at a committal mention.

Second stage: The Committal hearing

The purpose of a committal hearing is to find out if there is enough evidence to put the accused person on trial with a judge and jury.

Victims and witnesses may have to give evidence at this hearing. If you are needed as a witness, you will get a summons letter telling you where and when the case will be.

At the end of the hearing, the magistrate may decide that:

there is enough evidence for a trial and the will move on to the County Court or Supreme Court.
there is not enough evidence for a trial. The case will be dismissed, and the accused person will go free.

Usually it is several months or more between when the committal hearing happens in the Magistrates’ Court and the trial starts in the County or Supreme Court. If the offence is a sexual one, the date of the trial is provided at the end of the committal hearing.

Filing hearing

This is the first hearing in the committal process and usually occurs within a short time of a charge being laid. At this hearing, the court will set a timetable for the exchange of information between the prosecution and defence. A committal mention date will be set at this hearing.

Committal mention

This is a preliminary hearing before the full committal hearing. Before a committal mention, the defence will receive a hand-up brief that will include copies of witness statements and exhibits.

At a committal mention the magistrate may:

order that the accused be committed to trial at the County Court or Supreme Court
determine whether any/all of the charges can be heard and finalised in the Magistrates’ Court
determine whether the accused person will be granted permission to cross-examine witnesses that they have requested to attend a committal hearing and fix a date for that committal hearing
hear and determine any issues between the defence lawyers and the prosecution in relation to providing evidence sought in advance of the committal hearing
make any other order or direction that the court considers appropriate.

Committal hearing

A hearing where a magistrate will hear evidence of the prosecution and decide whether a properly instructed jury would convict the accused. This is the last hearing a matter will have before it proceeds to a higher jurisdiction

At a committal hearing, a magistrate will decide whether there is enough evidence to support a conviction for the offence/s charged.

The prosecution will call witnesses, where leave has been granted at the committal mention, for cross-examination by the defence. Other evidence will be tendered to the court in written form. See the witnesses page if you are summonsed to a committal hearing to give evidence.

The defence may also call witnesses to give evidence and at the end of all the evidence, the defence may make a submission to the court in relation to the strength of the evidence.

If the magistrate decides there is evidence of sufficient weight upon which a jury could convict, the accused will be committed for the hearing of the charges in the County Court or Supreme Court.

If the magistrate decides there is not sufficient evidence, the accused may be discharged.

Re-hearing Application

If a magistrate determines a matter in the absence of the accused, the accused can make an application to the Court for the order to be set aside and re-heard. The accused needs to serve their application on the informant (the person who charged them) and then a new hearing date will be scheduled for the magistrate to decide whether or not to grant the application. If they do, the case continues as a case normally would, with the accused having the option of pleading guilty or not guilty.

An application to drive pending a rehearing application must be served on the informant at least seven days before the application is to be heard

Source: magistratescourt.vic.gov.au

Types of Hearings in Criminal Proceedings

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