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THE
MAGISTRATES COURT PROCESS
A typical defended traffic offence
proceeds as follows:
- Charge and summons is issued and
served on you. See a lawyer.
- The first listing of your case is a return
day (also known as the mention date). Usually no attendance at court is
required at mention dates.
- On the return date, the case might be adjourned to a further
mention.
- On the further mention date, the case is adjourned to a Case Conference.
- At a Case Conference, your lawyer attends court (either with or without you) and the case is adjourned to either a contest
mention or a contested
hearing.
- At
a Contest Mention, you and your lawyer attend court. The case will be
adjourned to a Contested Hearing date. Typically a contest hearing date
happens about 6 months after your case is first listed in court.
- At a 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 - Filing and Service of a Charge and Summons
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 accused. 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 document called a
"Charge
and Summons". The informant has 12 months from the date of a
traffic offence to commence court proceedings by filing a charge at
court, although for camera
offences it is 12 months from the date of the latest nomination
statement. Provided charges are filed at court within time, the police
can serve the charge and summons outside the 12 month
period. 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 by posting it
to the accused's address, or by delivering it to
the accused personally, usually at the accused's place of residence, or
leaving it for the accused with a person who appears to be over the age
of 16 and who resides with the accused.
The
charge and summons will state on it a time and date when the case is
first listed
before the court. This is called a return date.
First
Return Date
The
court date stated on the "Charge and
Summons" is the "Return Date", also known as 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 for administrative purposes. 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 have planned to plead guilty on that
date.
An accused 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 accused and the court
(within a reasonable
time-frame).
On the return date 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, or
(b) adjourn the mention to a case conference in approximately 2 to 6 weeks
time.
No matter
when I contact the court, the court won't adjourn the case until the
mention date arrives. You do not need to attend court in person on a
mention date unless you are pleading guilty on that date, or unless you
are on bail. If
the court sends you a notice stating that your case has been adjourned
for another mention, you should assume you will not go to court on that mention
date unless you are on bail or have arranged to plead guilty. I
always explain this to each of my clients in conference and it is
stated in my fee agreement.
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 what date your case has been
adjourned
to.
#mention2
Further
Mention Date
On a first
mention day, it is common for the case to be adjourned for further
mention about 4 weeks later to enable your lawyer to investigate the
case fully, especially if he or she is requesting the police brief from
the informant. You do not need to attend the second
mention date unless you wish to plead guilty on that date, or if you
are
on bail. On a second mention date, your case might undergo a case
conference, or
be adjourned to a case conference on a later date. Or you can
plead guilty.
Case Conference Date
Most
Magistrates courts
now require all defended cases to have a Case Conference before
the case can be listed for either a contest mention or a hearing. A
Case Conference is a meeting between your lawyer and
a police prosecutor at court where various aspects of the case are
discussed. Usually I do not expect my clients to attend. One
purpose of a case conference is for the prosecutor to
check the police brief to fix up all the holes in their case. It is
also an opportunity for the parties to resolve issues, make compromises
and avoid a contested hearing by having charges amended so a guilty
plea can be entered or getting charges dropped. Another purpose
is to reduce the number of cases that get sent
to contest mention by having the simpler cases go directly to a
hearing, thereby saving court time and legal costs. If the case does
not resolve at Case Conference the parties must complete a Form 12
which is then filed with the Registrar to arrange the contested hearing
date.
Contest
Mention Date
If
an accused enters a plea of not
guilty, the court might adjourn the complicated
cases for a contest mention.
Clients are expected to attend court on a contest mention date. This is
often the first time you will attend court for your case. Contest
mentions usually happen between 2 and 4 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 accused, to allocate court resources for the contested
hearing date and to give the police a chance to try to find out what
the
defence strategy is. It is also a good opportunity for your lawyer 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 accused making compromises so that a plea of
guilty is entered to some or all of the charges. At a contest mention
the accused
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).
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 and no one is going to give any evidence to the court on this date.
Lawyers
are expected to attend a contest
mention with the client in tow,
although in some circumstances lawyers
can attend without their clients. A represented defendant
will not have to say anything to the
court. Witnesses do not 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.
The main difference between a case conference and a contest mention is that a case conference happens
without a Magistrate getting involved in the process while a contest mention has to be booked into court before a Magistrate.
Contested
Hearing Date
Eventually
the date of your court hearing arrive.
You will need to be at court before
9:30AM. If your case is listed
for 10:00AM it might commence later in the day. At a
contested hearing
the police member who laid the charges will attend court to give
evidence, together with all witnesses. A contested hearing can last
from an hour to several days depending on the number of witnesses and
number of legal issues to be addressed. There will usually be
discussions between the police and the lawyer prior to the case
starting to see if the case can resolve without a hearing going
ahead.
At the hearing you may need to get in the witness box and give sworn evidence, although it is
common for a defence lawyer to call no
evidence in defence and for the accused to say nothing at all at a
hearing - the accused is never
required to prove anything. An accused
who is on bail or charged with an
indictable offence must attend the
hearing. Otherwise attendance by the accused in person is highly
recommended but not mandatory. The accused should attend court and
preferably bring someone to court to accompany them. Accuseds facing the
possibility of licence loss should not
assume they will have a licence at
the end of the hearing. Therefore it
may be wise to leave your car at home. You 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. A contested hearing date can sometimes adjourn
if any party is not ready to proceed,
or the court has not got sufficient
time to hear the matter.
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 with the case by relying on
prosecution witness statements that
have been filed and served before the
mention date, or prosecution witnesses
will attend court and give evidence to prove the charge. (If
your case has been dealt with at 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 (one when the accused is not at court), the court might decide the case should not be heard in
the accused's absence, especially if jail is an option. The court can
decide to compel the accused to come to court for the case, and the
only way to do this is to place the accused on bail with a condition that
they attend court on a particular date. The warrant is issued even
though the accused has done nothing wrong by not going to court.
It is simply the only means by which a Magistrate can force a person
to appear in court when charged with a summary offence. The police will
execute the warrant by tokenly arresting the accused, taking him or her
to the police station, and about 10 minutes later releasing the accused
on bail once they are satisfied of the person's identify and the accused has signed an undertaking to appear at court
on a particular date.
When the
police first charge a person
they can do it by serving a charge and summons, or arresting and
bailing a defendant. So a warrant has changed nothing except you
are now obliged to attend court at each step of the proceeding.
Some people quite unnecessarily freak out when they discover that a
warrant of arrest has been issued. It is nothing to be concerned about.
The main issue is deciding whether you want the warrant executed at a
time of your convenience (i.e. you go to the police station) or at a
time the police choose (i.e. they come to you). When the case
next comes to court, the accused can enter a plea of
not guilty and have the case adjourned to a contest date.
Magistrates
Court sitting times
The
court often lists cases for 9:30 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 9:30AM but it does not mean your case will start at 9:30AM. Your
case may not be called 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 has to deal with the
police and court staff prior to 10:00AM
so you don't panic if your lawyer is
not standing at the door waiting to greet you when you
arrive.
What
is a Plea?
By
pleading
guilty
to a charge, the accused is agreeing
that all of the elements of the offence
are provable by the prosecution. The accused is agreeing with the summary
of facts which the prosecution allege
comprise the offence. The accused 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
an accused 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 accused has committed the offence
alleged against him/her.
All accuseds are presumed to be innocent
and it is up to the prosecution to
prove beyond reasonable doubt that the
offence was committed. That might be 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!
An accused does not need to prove
he/she is innocent - it is already
presumed to be the case!
When
pleading not guilty, an accused 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 many reasons
why good defence lawyers often do not try to prove anything at court. Some clients
expect a defence lawyer to be up late
preparing defence evidence. This is not
the way we defend most criminal charges.
The burden is on the prosecution to
prove the accused 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
an accused pleads guilty (or is found
guilty) the accused can present a
plea in mitigation of the penalty. A
plea in mitigation can be made at a
time convenient to the accused. Often
the accused 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 accused. The court will take into
account the accused's criminal
history, the circumstances of the
offence, the accused's financial,
medical, domestic, employment, family
and social situation. The accused can 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 accused, of the accused's
good character, particularly the accused's contribution to work,
family, society or others. In driving
offences it should address the accused's need for a licence. In
drink driving matters it should address
the accused'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 9:30
AM but this does not mean your case
will commence at 9:30 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 client. 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 28 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
useful if a Magistrate
refuses to disbelieve the police even
in the face of very strong contradictory 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 $44.00 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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