Understanding the Criminal Process
Understanding the Criminal Process – Unless you have been through the process before, you will likely be very confused with the criminal process. Often, which direction your matter takes depends on a number of factors, including the strength of the evidence and how you want to proceed. Therefore it can be difficult to explain the process at an early stage. However, in general terms, each matter navigates a similar route which can provide clients with the comfort of knowing the stages that their matter will go through and the time frame. It is very important that you gain an early understanding of the criminal process and how it applies to your matter.
Summary Matters – Magistrates’ Court
If your matter arises from a summary charge (ie a less serious charge that can be heard and determined in the Magistrates’ Court), your matter will travel through the summary stream. An easy way to determine whether your matter is summary is to check your charge sheet and see which box is ticked on the front page. If you are in the summary stream, it is likely that you have been charged with offences ‘on summons’, which means that the charges were filed with the Court in your absence, you received a summons to attend Court and you are not on bail. It also reflects the fact that the penalties for summary offences are far less severe than for indictable offences.
The first Court appearance for your matter will be a mention, which quite literally means that your matter will be mentioned in Court before a Magistrate, during which he or she will ask how you intend to proceed. These hearings are very brief (although you may wait for some time in Court as many other matters are also mentioned). If you are legally represented, what is mentioned to the Magistrate will depend on whether you have received your Brief of Evidence. A Brief of Evidence is prepared and served on you or your legal representative after you are charged and contains all of the evidence upon which the Police rely (ie statements, photographs, prior convictions, CCTV and your record of interview). In most matters, a Preliminary Brief of Evidence will be prepared. which contains the fundamental (but not all) of the evidence upon which the Police will rely. Summary matters are prosecuted by Police Prosecutors, being specially trained Police members who prosecute summary matters in the Magistrates’ Court.
Once you are in possession of your Brief and have received legal advice from a criminal lawyer, the matter will either proceed to a further mention (if you need more time to consider your options, obtain advice or collect funding), a Case Conference/Contest Mention (if there are issues in dispute between you and the Police) or a Plea (if you accept guilt for the offences). If you do not accept guilt for the offences and intend to plead not guilty, your matter will proceed through the Case Conference/Contest Mention process, where your lawyer and the Police Prosecutor will sit down and discuss the case and determine whether it can be settled or whether it will proceed to a Contest. If the matter cannot resolve, the parties will appear in Court following the Case Conference and advise the Magistrate that the matter will proceed to Contest and the Magistrate will adjourn the matter for a Contest on a date in the future.
A Contest is the term used for a “trial in the Magistrates’ Court”. There is, however, no jury. The matter is decided by a Magistrate after evidence is called by the Prosecutor and witnesses cross-examined by the Defence. Both parties will make submissions to the Magistrate regarding the evidence. However, the test is always the same in criminal matters: has the Prosecution proven the Accused guilty beyond all reasonable doubt? The burden is always on the Prosecution to satisfy the Court of your guilt. The Defence can attack the Prosecution case and make submissions regarding how the Prosecution has not satisfied its burden of proof or why a particular defence applies. The outcome of the Contest is usually settled on the same day as the Contest and, if the Accused is found guilty, he or she is usually sentenced on the same day.
If you proceed to a Plea instead of a Contest, a Summary of Facts, as agreed between the parties, will be read to the Court and the Accused’s prior convictions will be handed to the Court. As long as the Summary, prior convictions and the jurisdiction of the Court to hear the matter is accepted by the Accused, his or her lawyer will make submissions in relation to the offending, the Accused’s personal circumstances and the sentence that should be imposed relying on character references, psychological reports and any other material which the lawyer considers relevant to the Magistrate’s determination.
The important thing to remember in Summary proceedings is that there is an automatic right of appeal to the County Court. This right of appeal applies to both Pleas and Hearings and is referred to as a de novo appeal, which means that it allows you to relitigate each matter from commencement to finish before a Judge in the County Court.
You do not need to identify an error of law. You can also choose a different path upon Appeal. For example, you could elect to run a Contest in the County Court when you pleaded in the Magistrates’ Court. County Court Appeals are prosecuted by the Office of Public Prosecutions. Once an Appeal has been concluded, you have no further Appeal options unless you can identify an error of law that should be heard before the Court of Criminal Appeal. Any sentence or penalty that you receive in the Magistrates’ Court is suspended until the County Court Appeal. If the Judge proposes to increase your sentence upon Appeal (if it is appeal against the sentence), the Judge must provide the Accused with a warning so that the Accused may abandon the appeal and serve the sentence that they have already received.
In the Magistrates’ Court, the maximum sentence that any person may receive is two years imprisonment for a single offence and a total of five years for multiple offences. However, it is worthwhile contacting us in relation to your matter, so that we can also provide you with the sentencing statistics referable to your charge. Just because a matter is punishable by a maximum prison term does not mean that the term is regularly imposed. Accordingly, knowing what sentence was imposed in like cases can inform your decision regarding whether to plead guilty, at what stage and in which jurisdiction (if that choice is available to you).
The following is a video prepared by 360 South, which instructs you on the Summary Court process if you are self-represented:
Indictable Matters – Magistrates’ Court, County Court & Supreme Court of Victoria
Filing Hearings & Bail Applications
Serious matters punishable by significant terms of imprisonment and severe penalties are dealt with in the indictable stream. They commence with a Filing Hearing, during which the Accused is brought before the Magistrates’ Court in order that the charges may be filed. The Accused is then released on bail or summons. In some cases, where the Police oppose bail, a Bail Application may need to be conducted, where the Accused applies to the Court for Bail. The likelihood of success in Bail Applications depends on a number of factors. Please refer to our section on Bail Applications for further information.
Regardless of whether the Accused is on Bail or on Remand in a Remand Centre or Prison, the remainder of the process remains the same. However, on most occasions, the Accused will appear in Court by way of video link from the Prison in which they are held. At the Filing Hearing, the Magistrate will set dates for service of the Brief of Evidence and the Committal Mention date, which is the next date upon which the Accused will appear in Court. The Committal Mention date is usually some 8 weeks after the Filing Hearing. The Magistrate will also make any other orders which he or she considers necessary, including orders regarding custody management of the Accused if they have any particular health, mental health or substance abuse issues.
Once the Accused’s lawyers have received the Brief of Evidence, they will assess the evidence, seek instructions from the client and will either propose to have the matter dealt with by way of Plea to the higher Court (a straight hand up Brief) or will propose to have the matter listed for Committal. The relevant paperwork in either case will have to be prepared, presented to the Prosecution and filed with the Court.
A Committal Hearing is an evidentiary hearing conducted in the Magistrates’ Court before a Magistrate. Where there is a fact in issue in the matter (for example, identification evidence or forensic evidence) which may fundamentally affect the running of the matter, the Defence can apply to cross-examine the relevant witnesses in relation to that issue. The Defence can also, at this stage, call for disclosure of relevant documentation and materials from the Police. Our law requires that full disclosure of all of the materials and information held by the Police is required, unless there is a very good reason why the materials should be kept confidential. We can not stress enough the importance of thoroughly chasing full disclosure of the Prosecution case. Behind the Brief of Evidence is a wealth of materials and information that informed the investigation, which may be vital to the proper conduct of the matter. At Galbally Rolfe Criminal Lawyers, we are passionate about ensuring the fair conduct of every matter and the vigorous defence of our client. Pursuing disclosure materials is imperative to this process.
At the Committal Hearing, the statements of the relevant witnesses are tendered and the Defence has an opportunity to cross-examine the witnesses (ie to depose them). This assists the parties to understand the nature of their evidence and to clarify facts in issue. There is one particular exception in criminal proceedings and this applies to cases where sexual offending against persons under 16 is alleged. Child complainants (the alleged victim) cannot be called at Committal. They give their evidence once at a Special Hearing, which is conducted in the County Court immediately prior to the Trial. It occurs in the absence of the jury and members of the public, is video recorded and played back to the jury at the Trial.
At the end of the Committal, the Magistrate must make a determination as to whether there is enough evidence to commit the Accused to stand trial in the higher jurisdiction. The test that the Magistrate must apply is whether a jury reasonably instructed could convict the Accused of the offences alleged. Realistically, this test has a very low threshold and so most Accused persons are committed for Trial.
You must always remember that a Committal has a distinct forensic purpose and is not an indicator of the strength of the Crown case or whether you will be convicted of the offences. We have represented many individuals who have been committed to stand Trial on very serious offences and have been acquitted. In any event, if a Magistrate makes a determination that there is not enough evidence to commit the Accused for Trial, thus discharging them at Committal, the Director of Public Prosecutions (currently Mr. John Champion SC), can elect to directly indict the Accused person to stand Trial. It is unusual for this to occur, but is a power vested in the Director.
Following the Committal Hearing, the matter is listed for a Directions Hearing in the higher Court. Most cases proceed to the County Court. However, cases such as murder, conspiracy to murder and treason are heard in the Supreme Court of Victoria. You may attend several Directions Hearings as the Court and the parties settle pre-trial issues, such as Trial estimates and whether pre-Trial arguments will be run, and other practical issues such as Counsel’s availability and whether funding is in place to fund the Accused’s defence.
Plea Hearings & Sentence
Currently, most matters which proceed as a Plea of Guilty do not have Directions Hearings. You will usually receive a Plea date at the Committal Mention in the Magistrates’ Court after entering your Plea of Guilty. You will then be bailed to the higher Court for your Plea. Your Plea is conducted before a Judge, after an agreed statement of facts is read out by the Prosecutor. Similar to Pleas in the Magistrates’ Court, your lawyer will then put significant matters on your behalf and make submissions in relation to your sentence.
Sentences in the higher jurisdictions are very rarely handed down on the same day as the Plea. They are often adjourned for some weeks so that the Presiding Judge can decide on the sentence and how to structure the sentence and their sentencing remarks. Accused persons who are facing a period of imprisonment are remanded in custody pending the sentence (unless there is a persuasive reason as to why they should not be). Alternatively, Accused persons can be bailed pending the Sentence. Once the Sentence is handed down, the Accused must commence serving their Sentence, regardless of whether they intend to Appeal and lodge the relevant Appeal documentation. Appeals can take many months to come before the Court of Appeal.
If you elect to stand Trial and have your case determined by a Jury, the matter will be listed for a Trial date and any pre-trial issues will be determined by a Judge. A jury will then be empanelled and the Trial will open with the Prosecution case. The Defence will cross-examine the witnesses and then present its own case if it so chooses. There is no requirement for the Defence to call evidence, such as evidence from the Accused, nor can the absence of any evidence called by the Defence be used against the Accused. It is for the Prosecution to prove its case. The Defence does not have to disprove the Prosecution case, nor prove innocence. Depending on the case and the nature of the defence mounted the law differs. If you are acquitted, you will leave Court, the matter is finished and the Prosecution can neither appeal the acquittal nor re-charge you with the same offences. This is called the principle of ‘double jeopardy’. If you are convicted, your matter will be listed for a Plea Hearing and the same process as previously discussed will apply.
We hope that this blog has assisted you to understand the criminal process a little better. Ultimately, this is a general guide and there are variations of the process. If you are charged with a criminal offence, you must consult a criminal lawyer who specialises in criminal defence in order to obtain advice as to the best course to take and in order that we can explain the process, as it applies to you. Our criminal lawyers practice exclusively in this jurisdiction, are very experienced and are familiar with the Prosecutors, Magistrates and Judges who also work in this jurisdiction. This institutional knowledge is invaluable to ensure the best possible result.
Please visit our Contact Us page and make an appointment to see one of our experienced criminal lawyers. You can also visit the following websites for more information: