Updated: Dec 13, 2020
Having to attend Court to answer a criminal charge can be a daunting experience, especially for those unfamiliar with how a case proceeds from start to finish through the Courts that operate in our criminal justice system. The purpose of this article is to provide an overview so that you might better familiarize yourself with the process.
An allegation, an interview and then paperwork
The police investigate a complaint of criminal offending by gathering the available evidence and interviewing a suspect. If the police determine that there is a reasonable chance of securing a conviction against a suspect, the police will compel that person (the accused) to answer the allegation. This is achieved by serving on an accused a charge & summons or charge sheet.
Either of these documents, once served, will will inform an accused that they must attend a particular venue of the Magistrates' Court on a set date and time. Where an accused fails to attend Court in compliance with either a charge and summons or a charge sheet, the Court may issue a warrant for their arrest, and if on bail, may be further charged with the offence of breaching bail.
Most cases begin and end in the Magistrates' Court, however the destination for more serious offences can be either the County or Supreme Court.
Criminal proceedings in the Magistrates' Court
At a mention, several things may happen:
- an accused may require an adjournment without conducting a case conference.
- an accused may require an adjournment after a case conference
- an accused may elect to finalise their case by pleading guilty (refer to our page on sentencing)
The purpose of a case conference is to facilitate a meeting between the lawyer representing an accused person (or the accused themselves) and the police so that issues pertaining to the case can be discussed in full, and potentially resolved.
Prior to the mention, the police are required to disclose their case to an accused, and this is done by providing a preliminary brief of evidence. Often at a case conference, a further request for a full brief of evidence will be requested of the prosecution. The Court will usually grant an adjournment for this case and thereafter the case will be set down for either a further case conference or contest mention.
The period between a mention and contest mention can be up to 8 weeks. Where the allegations concern family violence, a contest mention is usually listed within 4 weeks.
At a contest mention, further discussions occur between prosecution and defence.
The Magistrate will be informed about details of the prosecution case, and a summary of the evidence relied upon by the prosecution. The facts in dispute, and any contentious legal issues will be identified by the parties.
Often a Magistrate will encourage the parties to reach a resolution and may offer a sentence indication to facilitate this.
The resolution of a criminal case at the contest mention stage is common. A case may resolve by an accused pleading guilty to downgraded offences, by the accused accepting a sentence indication, or the prosecution may withdraw all charges.
The Court will adjourn an unresolved case for a contested hearing, usually several months from the date of the contest mention.
At a contested hearing, the prosecution must produce evidence that ultimately persuades a Magistrate of the guilt of an accused beyond reasonable doubt.
To establish their case the prosecution will adduce evidence (through witnesses and exhibits). The defence can test this evidence through cross-examination (asking questions of police witnesses). An accused also can call evidence (through witnesses and exhibits) and to give their own testimony in defending the charge(s)
Once both prosecution and defence have closed their respective cases, a Magistrate must then consider the evidence, and whether consider whether a finding of guilt beyond reasonable doubt can be made in respect to the prosecution case. If the Magistrate is not satisfied beyond reasonable doubt, he or she must acquit the accused and find him/her not guilty. Conversely, a finding of guilt will require the Court to impose a sentence on the accused.
The law which governs the sentencing for criminal offences in Victoria is the Sentencing Act 1991 (Vic).
There are several sentencing outcomes that might be imposed upon a finding of guilty in a particular case depending upon gravity of the offending and the personal circumstances of an accused, and whether they have a prior criminal history. The Sentencing Act 1991 (Vic) contains a variety of sentencing orders, however the main and most frequently imposed outcomes in the Magistrates Court are:
Community Correction Order
If an accused is found guilty, they may either appeal against the finding of guilt (the conviction), or the severity of the sentence an appeal is heard in the County Court. An appeal must be lodged within 28 days of the court outcome.
Prepare early, get advice
Receiving paperwork to go to Court can be incredibly stressful. Some of this stress can be alleviated if early advice is received from an experienced criminal lawyer. If you are charged with an offence and must attend Court call our office on (03) 9668 7600 for an obligation free case assessment. We are happy to talk through your options and discuss how you might best prepare for your day in Court.