Going to court

There are several different kinds of hearings that may happen in the Magistrates' Court when a person has been accused of a criminal offence. The type of hearing may depend on:

the type of offence that a person is charged with, and
whether they intend to plead guilty.

See Magistrates' Court—Criminal matters.

Preliminary hearings

Mention hearing

The mention hearing is usually the first court hearing that an accused will be required to attend for a criminal offence that is, or can be, heard summarily. The mention hearing is sometimes called the 'return date'. There may be more than one mention hearing.

The following issues may be addressed at a mention hearing:

permission may be granted for an indictable charge to be heard summarily
the charge may be heard and determined
a date may be set for a contest mention hearing
a date may be set for a summary hearing of the charge
the court may give any other direction that it considers appropriate, and
the matter could be adjourned if someone is facing a jail sentence but has not yet spoken to a lawyer.

See Can a court hearing be moved or adjourned?

Contest mention hearing

A contest mention hearing may happen after the mention hearing and before the date when the charge is heard by the magistrate. This kind of hearing takes place when the accused intends to plead not guilty to the charge(s). This is an administrative type hearing to sort out what is needed for a smooth procedure when the matter is heard. The aim of this hearing is to:

get an estimate of the time that each party expects that they will need for their hearing
find out how many witnesses will be called and the kind of the evidence that each party intends to use
find out whether any interpreters or other aides (such as mobility aides) are needed
provide an opportunity for any documents to made, amended, filed and served if required, and
sort out anything else that is necessary to manage the case.

If the matter is not resolved at this stage the matter will proceed to a summary hearing.

Accused must attend a contest mention

The accused person has to attend, that is, they must be physically present in court during a contest mention, unless they are excused by the court.

Summary hearing—if pleading not guilty

A summary hearing (Sometimes called a contested hearing or a contest) will happen if the accused wants to plead not guilty. In a summary hearing, the court listens to witnesses and other evidence before making a decision about the case.

At the start of the hearing all charges will be read and explained to the accused. The accused person will then be asked to plead. The plea may be made by the legal representative on behalf of the accused.

Prosecution case

If the magistrate allows, the prosecution may begin with an opening address to summarise the prosecution case. This assists the other parties to understand the issues in contention. The prosecution will then call witnesses to prove their case. Witnesses may then be cross examined by the legal representative of the accused and re-examined by the prosecution if necessary.

Defence case

After hearing the prosecution case the defence may then:

submit that there is no case to answer (if this is rejected by the magistrate the accused may then call evidence)
call evidence from the accused or other witnesses, or
remain silent.

If the accused intends to call witnesses, they may seek leave from the magistrate to give an opening address outlining the evidence that they intend to call. They must state the order that witnesses will be called. Generally, the accused will be the first witness called to give evidence.

Burden of proof

It is up to the prosecution to prove that the accused is guilty of the offence(s) beyond reasonable doubt. The exceptions to this are where the accused wants to prove that they fall under a statutory exception.

See Judicial College of Victoria—Victorian Criminal proceedings Manual—Hearing procedure – 3.9.

Verdict

After any closing address by the prosecution the magistrate will either dismiss the charges or will enter a verdict. The magistrate may then proceed to pass a sentence. The magistrate has to give adequate reasons for their decision. These reasons should include:

a statement of the relevant principles of law, and
the findings of fact.

Sentence indication

A sentence indication is where a magistrate tells the accused what sentence the court is likely to order if the accused pleads guilty at a particular time. If a magistrate gives such an indication and the person makes a guilty plea at the next available opportunity, the magistrate must not give a more severe type of sentence than the kind that they indicated.

This indication does not bind any other magistrate. If one magistrate gives a sentence indication and the accused does not plead guilty at the next opportunity, the same magistrate must not sit on any further hearings in this matter unless all parties agree.

More information

Legislation

Criminal Procedure Act 2009 (Vic)

s. 10—Listing a matter for mention hearing or filing hearing in the Magistrates' Court
s. 53—Mention hearing
s. 55—Contest mention hearing
Part 3.3—Summary hearing
s. 60—Power for court to give a sentence indication
s. 61—Effect of a sentence indication

See Criminal Procedure Act 2009 (Vic).

Magistrates' Court Criminal Procedure Rules 2019 (Vic)

Part 6—Case direction
Part 7—Committal mention and case conference

See Magistrates' Court Criminal Procedure Rules 2019 (Vic).

Reference

Magistrates Court of Victoria