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THE
COURT PROCESS
A typical defended traffic offence
proceeds as follows:
- Charge and summons is issued and
served. See a lawyer.
- Case is listed for a mention
day. No attendance is
required at mentions.
- On the mention date, the case is
adjourned to a further
mention.
- On the further mention date.
Case is adjourned to contest
mention.
- On a contest mention date, you
and your lawyer attend court. Case
adjourned to contested
hearing.
- At contested hearing,
prosecution witnesses attend court
and the prosecution try to prove the
offence. You and your lawyer attend
court. Judgment will be given the
same day or sometimes the court
adjourns to consider its
decision.
Commencing
a criminal court case.
In
most traffic offences a court case is
commenced by the police preparing a
document called a charge and
summons. This is a written document
that is signed by the court and/or the
police and then served on the
defendant. A charge is a court document
which alleges an offence against you. A
summons is a court document that
invites or requires you to come to
court on a particular date to answer a
charge. These are contained in the one
form called a "Charge and Summons".
There are numerous technical
requirements with respect to the
filing, issuing and service of charges
and summonses. Failure to comply with
any of these technical requirements may
give rise to defences. The charge and
summons can be served on a defendant by
sending it by post to the defendant's
address, or by delivering it to the
defendant, usually at the defendant's
place of residence. The charge and
summons will state on it a date when
the case is listed before the court.
This is called a mention
date.
First
Mention Date
The
court date stated on the "Charge and
Summons" is always a "Mention Date".
Usually my clients do not go to court
on the first date. A Mention Date is a
date on which your case is listed in
the court. The file will be looked at
by the registrar. It is a date on which
the court wants to know what you are
doing with your case. In most cases I
will contact the court on or before
this date to adjourn the case. Clients
should not go to court on a mention
date unless they are on bail, or unless
they wish
to plead guilty on that
date.
A defendant who wants to plead guilty
can request the court to list the case
for a guilty plea on any day which is
suitable to the defendant and the court
(within a reasonable
time-frame).
Your
lawyer will normally contact the court
and do one of the following things:
(a) adjourn the mention to a further
mention in approximately 4 weeks
time,
(b) adjourn the mention to a contest
mention in approximately 4 to 12 weeks
time,
(c) adjourn the mention to a contested
hearing date in approximately 4 to 12
weeks time.
No
matter when you contact the court, they
will adjourn the case on the mention
date, not earlier.
You
need to attend court in person on a
mention date only if you are pleading
guilty or if you are on bail. If you
have a summons to attend court, then
you are probably not on bail. No
contested hearing can ever take place
on a mention day. No police witnesses
will be at court on a mention day, and
in most cases you will not be there
either. The written instructions that
are given to defendants with the charge
and summons do not explain this
properly. After the first mention date,
the court will send you a notice
stating when the case has been
adjourned
to.
Further
Mention Date
On
a first mention day, it is common for
the case to be adjourned for further
mention about 4 weeks later. Second
mentions are normally adjourned to a
contest mention about 8 weeks after a
mention date. On a mention date, the
court wil not hear your case unless you
want to plead guilty. You do need to
wait until a mention date to plead
guilty. It is possible to plead guilty
on almost any day you wish.
Ex
Parte hearing
An
ex parte hearing occurs when the court
determines a case in the defendant's
absence. If the defendant doesn't
adjourn the case and doesn't attend
court, the court might hear and
determine the case in the defendant's
absence. At an ex parte hearing,
the court can proceed by relying on
prosecution witness statements that
have been filed and served before the
mention date, or prosecution witnesses
will attend to prove the charge. (If
your case has gone to an ex parte
hearing speak to the court staff or
your lawyer about your options because
you should be able to have the matter
reheard).
Warrant
for arrest
At
an ex parte hearing, the court might
think the charge is too serious to be
heard in the defendant's absence,
especially if gaol is an option. The
court can choose to issue a warrant for
the arrest of the defendant and have
him brought to court. The arrest takes
place not because the defendant has
done anything wrong. It is simply the
only means by which a Magistrate can
force a defendant to appear in court
when charged with a summary offence.
The police will execute the warrant by
arresting the defendant and bailing the
defendant on the condition that the
defendant attends court on a particular
date. This means the defendant will be
taken to the police station, asked to
sign a bail document, then released.
When the case next comes to court, the
defendant can enter a plea of not
guilty and have the case adjourned to a
contest mention
date.
Contest
Mention Date
If
a defendant enters a plea of not
guilty, the court will usually list the
case for a contest mention. All
contest mentions are listed to commence
at 10:00 AM but this does not mean your
case will commence at 10:00AM. You can
expect to be at court all morning. It
is not a hearing date. It occurs
between 2 and 5 months after you were
served with the charge and summons. A
contest mention is a type of
pre-hearing conference designed to try
to resolve the differences between the
police and the defendant, to allocate
court resources for the contested
hearing date and gives the police a
chance to try to find out what the
defence are up to. It is also a good
opportunity to determine whether the
police case has any problems with it.
The court expects the parties to make
attempts to resolve all issues between
them. This can include the police and
the defendant making compromises so
that a plea of guilty is entered to
some or all of the charges. If you want
to negotiate anything at all with the
police, or you are trying to get the
most lenient sentence, then you
probably want your case to go to a
contest mention so you can do that. At
a contest mention the defendant can
either plead guilty (in which case the
matter resolves that day) or not guilty
(in which case the matter is adjourned
for a hearing).
Lawyers
are expected to attend a contest
mention with the client in tow,
although in some circumstances lawyers
can attend without their clients. This
is almost always the first date on
which the defendant is expected to
attend court. A represented defendant
will not have to say anything to the
court. No witnesses come to court on
this date. No evidence is given. There
is no hearing. The informant often
attends court on this date but will not
give evidence. The court will wish to
know details of the defence case,
especially how long the case is
expected to take, how many witnesses,
whether there is a need for
interpreters, video links, expert
witnesses, legal arguments, alibis,
adjournments etc. In most cases lawyers
will know the answers to these
questions without needing much input
from their client. At the end of the
contest mention the court will set a
date for a contested hearing. The
parties are required to select a date
on which all witnesses can attend
court. Usually the contest hearing is
booked for about 2 to 4 months after a
contest
mention.
Contested
Hearing Date
Eventually
the date of your court hearing arrive.
You will need to be at court before
9:30AM. Although your case is listed
for 10:00AM, it is normal for it to
commence later in the day. At a
contested hearing the police
member who charged the defendant will
attend court to give evidence, together
with all witnesses. A contested hearing
can last from a few hours to a several
days depending on the number of
witnesses and number of legal issues to
be addressed. The defence may choose to
call evidence if the defence lawyer
believes this is necessary. It is
common for a defence lawyer to call no
evidence in defence and for the
defendant to say nothing at all at a
hearing because the defendant is never
required to prove anything. A defendant
who is on bail or charged with an
indictable offence must attend the
hearing. Otherwise attendance by the
defendant in person is highly
recommended but not mandatory. The
defendant should attend court and
preferably bring someone else to court
with them. Defendants facing the
possibility of licence loss should not
assume that they will have a licence at
the end of the hearing. Therefore it
may be wise to leave your car at home.
All defendants should hope for the best
but prepare for the worst. If you are
not successful in your defence, your
lawyer will give a plea in mitigation
of penalty. Most traffic cases finish
in one day. They can sometimes adjourn
if any party is not ready to proceed,
or the court has not got sufficient
time to hear the matter.
Magistrates
Court sitting times
The
court generally lists all cases for
10:00 AM, no matter what stage it is at
and regardless what time is written on
the summons. This means you should be
at court at 10:00AM even though your
case may not be called on until 3:30PM.
Usually the court will call your case
when you are ready for it to be heard,
so getting it stood down for a short
while is not unusual. Court adjourns
between 1:00PM and 2:00PM, and usually
stops sitting at 4:00PM. It is best to
get to court before 9:30AM, let the
court staff know you are there and wait
for your lawyer to find you. Your
lawyer usually has to deal with the
police and court staff prior to 10:00AM
so you don't panic if your lawyer is
not standing on the steps waiting for
you when you
arrive.
What
is a Plea?
By
pleading guilty to a charge, the
defendant is agreeing that all of the
elements of the offence are provable by
the prosecution. The defendant is
agreeing with the summary of facts
which the prosecution allege comprise
the offence. The defendant is inviting
the court to impose a sentence
applicable under the law and
commensurate with the agreed
circumstances of the
offence.
By
pleading not guilty to a charge
a defendant is requiring the
prosecution to prove each of the
elements of the offence and to provide
evidence of each and every matter that
is required to be proved by the
prosecution before the court can be
satisfied beyond reasonable doubt that
the defendant has committed the offence
alleged against him/her.
All
defendants are presumed to be innocent
and it is up to the prosecution to
prove beyond reasonable doubt that the
offence was committed. This much might
seem obvious to most people, but an
astonishing number of people seem to
assume from the outset that they are
destined to lose their case because
they have been unable to think of a
defence. Although they have no legal
training, they claim it will not be
possible for them to prove they are
innocent - as
if that matters!
A defendant does not need to prove
he/she is innocent - it is already
presumed to be the case!
When
pleading not guilty, a defendant is not
obliged to prove anything. He/she is
not required to adduce any evidence, is
not required to say anything at all to
the court. There are numerous reasons
why a defence lawyer often does not
attempt to prove anything. Some clients
expect a defence lawyer to be up late
preparing defence evidence. This is not
the way to defend most traffic charges.
The burden is on the prosecution to
prove the defendant is guilty of an
offence. A defence lawyer should focus
on picking to bits the prosecution case
rather than trying to make up his
own.
Presenting
a plea in mitigation
When
a defendant pleads guilty (or is found guilty) the
defendant can present a plea in mitigation of the penalty. A plea in mitigation can be
made at a time convenient to the
defendant. Often the defendant will
adjourn a case to prepare for the plea
date. When pleading guilty your lawyer
will present to the court facts and
matters which the lawyer wants the
court to take into consideration when
sentencing the defendant. The court
will take into account the defendant's
criminal history, the circumstances of
the offence, the defendant's financial,
medical, domestic, employment, family
and social situation. The defendant's
main obligation is to bring to court
character evidence, usually in the form
of letters, which the court can read
and take into account when sentencing.
A good character reference should speak
of the relationship between the writer
and the defendant, of the defendant's
good character, particularly the
defendant's contribution to work,
family, society or others. In driving
offences it should address the
defendant's need for a licence. In
drink driving matters it should address
the defendant's drinking habits.
Character references should be written
by people whose opinion the court will
respect. All mentions and pleas of
guilty are listed to commence at
10:00 AM but this does not mean your
case will commence at 10:00 AM. You can
expect to be at court all morning, and
sometimes the case will not be reached
until the afternoon. Your lawyer will
address the court on sentencing
principles and attempt to persuade the
court to impose a sentence most
favourable to the defendant. In some
traffic matters the court is bound by
mandatory
sentencing
laws and it may be impossible to get a
sentence reduced below a minimum
level.
Appeals
If
you are in any way unsuccessful in your
case your lawyer will advise you of
your right to appeal. You have 30 days
to lodge an appeal to the County Court
or the Supreme Court. A County Court
appeal is a full rehearing of the case
and a new result can be achieved. You
do not need any grounds to lodge a
County Court appeal. It is an automatic
right to a rehearing and is especially
usesful is a Magistrate stubbornly
refuses to disbelieve the police even
in the face of irrefutable evidence. A
Supreme Court appeal is a review of the
Magistrate's decisions. If the
Magistrate made a decision which was
not lawful the Supreme Court can
overturn the result. You often can be
permitted to drive a vehicle pending
the hearing of an appeal.
Supreme
Court of Victoria
Paying
Court Costs & Legal
Costs
If you lose your case you may be
ordered to pay court costs of
approximately $39.00 to $75.00, (and in
some cases also witness expenses) on
top of any fine that is imposed.
You will never be required to pay
legal costs to Victoria Police in
criminal proceedings, although you may
be required to pay the costs incurred
of non-police witnesses called for the
prosecution.
In non-police matters (e.g. local
government prosecutions, VicRoads
prosecutions), sometimes the court will
order that you pay some of the other
party's legal costs. The amount ordered
will depend on how complicated and time
consuming the prosecution case is, and
depend to a lesser degree on the
reasons for the prosecution of the
offence. Expect to be ordered to pay
less than $2,000 in a typical case. In
addition to the payment of the
successful party's costs, you also have
to pay your own legal costs.
Related
Pages
Getting
Legal Advice
How
can I see you?
What
will it cost?
Pleading Guilty
Related
Links
Road
to Court
Legal Aid brochure about the court
process.
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