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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 mention
day. If you are not on
bail, you do not need to attend court
on a mention date.
- On the mention date, the case is
often adjourned to a further
mention.
- A Summary
Case Conference
conducted between your lawyer and
prosecutors.
- At the next mention after Summary
Case Conference, a Form 11A or Form 12
is filed, 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
prosecutor tries 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
Mention 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 mention 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 summary
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. There is no limit to the
number of adjournments a court case
can have.
#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 summary case conference. Or you can
plead guilty.
Summary
Case Conference Date
Magistrates
courts require all defended cases to
have a Summary Case Conference before
the case can be listed for either a
contest mention or a contested
hearing. A Summary Case Conference is
a meeting, in person or online,
between your lawyer and a police
prosecutor where various aspects of
the case are discussed. Usually I do
not expect my clients to attend this
meeting. 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 or withdrawn so a guilty plea
can be entered or proceedings
dropped. If the case does not
resolve at Summary Case Conference the
parties must complete and file a Form
11A to request a contest mention, or a
Form 12 to request a contested hearing
date. A Summary Case Conference is
usually done prior to a mention
date.
Contest
Mention Date
If
an accused enters a plea of not
guilty, the court might adjourn a
complicated case 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
9:30 AM but this does not mean your
case will commence at 9:30AM. You
can expect to be at court all
morning. It is not a contested
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, 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
9:15AM. 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. If you are facing the
possibility of licence loss should not
assume you 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
9:30AM so 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. We are much more concerned
about what questions we are going to
ask the prosecution witnesses and what
their answers might be. The burden is
on the prosecution to prove the accused
is guilty of an offence. A defence
lawyer will focus on picking to bits
the prosecution case rather than
trying to present some theory his
client made up.
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. Most
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 $90.00 to $130.00, (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
$2,500 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
Links
Road
to Court
Legal Aid brochure about the court
process.
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