Criminal Magistrates' Court
This comprehensive step-by-step guide covers all aspects of criminal practice and procedure for summary and indictable offences in the Magistrates’ Court, with supplementary guides specific to traffic offences and Intervention Orders.
The guides provide easy to understand coverage of the procedural aspects of criminal law matters, from arrest and charge through to hearing and/or sentencing, including avenues for appeal and costs applications. Written by experienced practitioners, these guides provide practical tips for lawyers new to this area of work and a detailed overview to assist all practitioners, especially those supervising younger lawyers.
Recent updates to this publication can be viewed on Obiter - our News & Updates site.
Guides in this publication
MATTER PLAN
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“ Contents Overview and penalty units3 ”
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“ Victoria A full commentary on the law and practice as it currently applies to acting for the defendant in criminal proceedings in the Magistrates’ Court. ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ Judicial College of Victoria – Publications Sentencing Advisory Council – New sentencing snapshots for burglary, robbery, causing injury, and drug offences ”
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“ Magistrates’ Court Civil County Court Civil ”
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“ The Criminal Procedure Act 2009 provides the framework for the way in which all criminal matters are dealt with in the Magistrates' Court. Under s 6 of the Act, a criminal proceeding is commenced in the Magistrates' Court: ”
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“ See below for First contact - In the office. Arrest ”
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“ If you decide to go to the police station you should present at the front counter and identify yourself as a legal practitioner – a Law Institute of Victoria photo ID card is ideal, but your business card will usually suffice. You should advise the name of your client who is in custody and ask to ... ”
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“ To answers questions or not to answer questions … Some practitioners strongly believe that it is best not to get instructions on the allegations before you know what the police case against your client is. This is a useful rule of thumb because, of course, your client has the right to silence ... ”
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“ Bail applications are governed by the Bail Act 1977. Sections 4 and 10 provide that any person held in custody in relation to an offence must be released on bail unless they are taken before a bail justice or the Magistrates' Court within 24 hours of being taken into custody. Bail must also be ... ”
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“ A person accused of an offence being held in custody is entitled to be granted bail unless the bail decision maker is required to refuse bail under the Act. The decision-making process to be followed is different depending on whether the alleged offence is a Schedule 1 or a Schedule 2 offence, or ... ”
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“ You need full instructions on a bail application. You need to know, and be able to answer, questions from the bench as to your client’s residential address and domestic arrangements, his work details, income, assets, community ties, criminal history, any past failures to appear, issues with ... ”
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“ In almost every metropolitan and most country Magistrates' Courts, there is a court sponsored Court integrated services program (CISP, or a similar program called CREDIT) to assist people seeking bail. CISP workers assist with referrals to drug and alcohol counselling, anger management, ... ”
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“ If the bail application is occurring at the first mention of the charges, your client will already be at court. If the bail application is heard subsequently, you will have to arrange for the matter to be listed by sending a notice of application for bail to the informant and to the court (note ... ”
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“ Consider whether any of the following possible submissions apply to the case against the accused (this is not an exhaustive list): The offences are not of a serious nature, or are not a serious example of this offence. ”
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“ It is imperative to take detailed instructions from your client. As a general rule, you should have the police brief before you take full instructions from your client regarding the circumstances of the offence. There may be a defence available once you have seen the police brief which was not ... ”
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“ Criminal matters should always be the subject of formal engagement and the client should be required to enter into a costs agreement, like any other matter. Many practitioners charge a flat fee for pleas of guilty in criminal matters; however this does not mean that a formal costs agreement is not ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ Once charge sheets have been filed with the registrar of the court, the court may issue either a summons for the person to appear or, if satisfied by sworn evidence from the informant that the person is likely to not answer a summons or will or has absconded or avoided service, a warrant for their ... ”
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“ If your client has been summonsed or remanded to appear at a mention hearing, this means that their case is in the summary stream. The police prosecute all matters in the summary stream. There are dedicated prosecution units within Victoria Police allocated to each Magistrates' Court. These ... ”
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“ You are now at the stage where you have either seen your client at the police station or your client has come in to see you after having been charged with an offence. He should have with him a copy of the notice to appear or the charge sheets (the process for notices to appear is covered in a ... ”
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“ The first thing to do is analyse the charge to ascertain exactly what the prosecution has to prove against your client. Then go on to analyse the brief of evidence against each element of the offence which has to be proven beyond reasonable doubt by the prosecution. During this, be alert for any ... ”
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“ The vast majority of offences have two basic elements, that is: a physical act, called the actus reus; and ”
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“ Strict liability is an offence where the prosecution does not have to prove a guilty mind. However, there is an available defence of honest and reasonable mistake of fact. That is, that the person was honestly mistaken as to certain facts existing but had a reasonable belief about those facts and ... ”
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“ The final group of offences are those of absolute liability. These are offences where the Crown merely has to prove the actus reus and there is no defence of reasonable mistake of fact. In summary matters after you have read the brief of evidence and satisfied yourself that the prosecution has ... ”
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“ Just because there will be a plea of guilty doesn’t mean that your client must plead to all of the charges put forward by the police or on the basis of the allegations set out in the Summary. Often your client will be charged with multiple offences laid in the alternative and covering the same ... ”
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“ During negotiations, make sure that you address the summary of facts which will ultimately be read out to the magistrate as well as the actual charges. Look at the summary in the hand up brief and identify what you might want removed, including: all irrelevant material, including material that ... ”
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“ If your client is a first time offender and the offence is a relatively minor one, then you should consider whether they are eligible for diversion: see s 59 Criminal Procedure Act. Diversion is a way in which a person may acknowledge their responsibility for an offence, but be dealt with outside ... ”
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“ See s 65 of the Criminal Procedure Act 2009. At a contest mention you will be required to tell the court whether the matter has resolved into a plea of guilty (and on what basis) or if it will require a summary hearing. If your client is fighting and a summary hearing is required, you need to be ... ”
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“ You can ask a magistrate for a sentencing indication at any stage of your client’s matter: sections 60 & 61 of the Criminal Procedure Act 2009. Sentence indications were previously only given at contest mentions, and it is likely that notwithstanding ss 60 & 61, this will still be the most common ... ”
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“ An early plea of guilty is a very important mitigating factor on a criminal charge. Section 5(2)(e) of the Sentencing Act 1991 provides that when passing sentence the court must take into account the fact that the offender pleaded guilty and stage of proceedings when the offender pleaded guilty or ... ”
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“ It is rare in the Magistrates' Court that oral evidence is given on a plea. The practice is that the vast majority of pleas are conducted from the bar table with the legal representative of the client making submissions. Often the representative will indicate that their client’s parent or spouse ... ”
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“ If the prosecution provides you with a victim impact statement completed by the complainant in the matter, show it to your client so you can inform the court that your client is aware of it. ”
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“ Having time spent in custody declared as time served is of course important to your client. Custody records are very difficult to decipher. However, you will no doubt know when your client went into custody. There are a number of date calculators available on the internet – for instance, the ... ”
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“ You should advise your client about obtaining character references. References must be specific to the offence. You should hand (or send) a number of copies of the information sheet to your client to give to their referees. All references should be addressed to 'the presiding magistrate' at the ... ”
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“ A willingness to make restitution to the victim of an offence is an indication of your client’s contrition and remorse. You should address this issue with your client before the sentence hearing. In the event of the offence having caused some injury, loss or damage you should ensure that the ... ”
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“ An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s GP and any attending specialist (subject, of course, to the client’s ability to pay for such reports). A ... ”
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“ You should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report (PSR), or a court ordered psychiatric assessment. If it is likely and an adjournment (usually six weeks for a full background report) will therefore be required, you should alert your ... ”
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“ It is important when conducting a plea before the Magistrates' Court to be concise. Most courts are very busy especially on Mondays. It is important not to waffle or waste time, as it will only irritate the magistrate and an irritated magistrate isn’t necessarily going to be converted to your ... ”
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“ It is sometimes appropriate to do written submissions on sentence, particularly in the higher courts but also, for particular cases, in the Magistrates' Court. For some types of offences (e.g. possession of child pornography, indecent exposure) discussion of the offending behaviour, your client’s ... ”
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“ The procedure in the conduct of a plea is normally as follows: You arrive at court well before the listed hearing time (usually 10 am but check online beforehand) and check the list to find out which court room your client’s matter is listed in. ”
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“ A full proof of evidence (a statement) should be obtained from the client in regard to what evidence he or she proposes to give, if any. A proof of evidence should also be obtained from all witnesses you intend to call. If you intend to issue any subpoenas, this must be done before the hearing ... ”
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“ It is very uncommon for opening addresses to be given in summary hearings, indeed leave of the court is required to do so: see s 59. If any openings are given, they are usually restricted to the prosecutor briefly outlining the nature of the allegations and the defence, indicating what is at issue ... ”
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“ A 'no case to answer' submission at the close of the prosecution case is a question of law. An example where it may arise is where the prosecutor has not adduced any evidence about one of the elements of the offence. When the magistrate is considering the question of whether there is a 'no case ... ”
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“ It is possible for a magistrate to give him or herself a Prasad direction. The Prasad direction takes its name from R v Prasad (1979) 2 A Crim R 45. It is a direction by the trial judge to the jury informing it of its power to bring in a verdict of not guilty at any time after the conclusion of ... ”
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“ See sections 66 to 71 of the Criminal Procedure Act 2009. After the close of the Crown case and any No Case to Answer submissions or Prasad Directions, the accused can then call evidence. With the leave of the court the accused or his representative may make an opening statement (it is unlikely ... ”
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“ At the outset it should be said that costs orders against the prosecution have notoriously been hard to get. Section 401 of the Criminal Procedure Act gives a magistrate complete discretion as to the awarding of costs. Subsection (2) provides that the court 'may take into account any unreasonable ... ”
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“ A notice to appear directs the person to attend the Magistrates' Court on a specified date not less than 28 days after serving of the notice. It must contain the name and contact details of the person serving the notice; the full name and address of the person receiving the notice; the offence and ... ”
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“ If the charge sheet contains indictable offences which are not triable summarily, they ultimately have to be dealt with (either by a trial or a plea of guilty) in either the Supreme Court or the County Court. Murder and serious assaults, treason, serious rapes, large scale drug trafficking and ... ”
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“ At a committal mention hearing, the Magistrates' Court may: determine the committal proceeding; ”
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“ See Part 4.7 of the Criminal Procedure Act 2009. At the Committal Hearing, in theory, the magistrate will have been allocated prior to the committal hearing, so will have read the statements in the hand up brief – or at least the statements of the witnesses to be cross-examined. The first thing ... ”
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“ Bail applications are governed by the Bail Act 1977. Sections 4 and 10 provide that any person held in custody in relation to an offence must be released on bail unless they are taken before a bail justice or the Magistrates' Court within 24 hours of being taken into custody. Bail must also be ... ”
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“ A person accused of an offence being held in custody is entitled to be granted bail unless the bail decision maker is required to refuse bail under the Act. The decision-making process to be followed is different depending on whether the alleged offence is a Schedule 1 or a Schedule 2 offence, or ... ”
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“ You need full instructions on a bail application. You need to know, and be able to answer, questions from the bench as to your client’s residential address and domestic arrangements, his work details, income, assets, community ties, criminal history, any past failures to appear, issues with ... ”
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“ In almost every metropolitan and most country Magistrates' Courts, there is a court sponsored Court integrated services program (CISP, or a similar program called CREDIT) to assist people seeking bail. CISP workers assist with referrals to drug and alcohol counselling, anger management, ... ”
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“ If the bail application is occurring at the first mention of the charges, your client will already be at court. If the bail application is heard subsequently, you will have to arrange for the matter to be listed by sending a notice of application for bail to the informant and to the court (note ... ”
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“ Consider whether any of the following possible submissions apply to the case against the accused (this is not an exhaustive list): The offences are not of a serious nature, or are not a serious example of this offence. ”
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“ An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s GP and any attending specialist (subject, of course, to the client’s ability to pay for such reports). A ... ”
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“ The Sentencing Act 1991 contains the sentencing options for adults in all courts. All references in this part of the guide are to that act unless otherwise indicated. The sentencing options can be divided into two categories non-custodial and custodial. The purposes of sentencing are set out in s ... ”
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“ Deferral of sentencing If your client is over 18 and under 25, the magistrate may defer sentencing for up to 12 months if it is in the interests of your client. Usually you would ask for a deferral if your client has commenced on a rehabilitative course of some type, so that they may be given the ... ”
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“ Intensive corrections order These are abolished as of 16 January 2012. ”
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“ Your role does not end at the moment you sit down after making your submissions on sentence, nor when the bench passes sentence upon your client. You need to explain the outcome to your client – most lay people can sit in court and listen to a judicial officer give a short ex tempore decision on ... ”
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“ An accused has the right of appeal to the County Court from the Magistrates' Court, against conviction and/or sentence: s 254. A notice of appeal must be filed with the registrar of the Magistrates' Court within 28 days of sentence. An appeal is to be heard as a rehearing and an appellant is not ... ”
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“ Bail applications are governed by the Bail Act 1977. Sections 4 and 10 provide that any person held in custody in relation to an offence must be released on bail unless they are taken before a bail justice or the Magistrates' Court within 24 hours of being taken into custody. Bail must also be ... ”
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“ A person accused of an offence being held in custody is entitled to be granted bail unless the bail decision maker is required to refuse bail under the Act. The decision-making process to be followed is different depending on whether the alleged offence is a Schedule 1 or a Schedule 2 offence, or ... ”
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“ You need full instructions on a bail application. You need to know, and be able to answer, questions from the bench as to your client’s residential address and domestic arrangements, his work details, income, assets, community ties, criminal history, any past failures to appear, issues with ... ”
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“ In almost every metropolitan and most country Magistrates' Courts, there is a court sponsored Court integrated services program (CISP, or a similar program called CREDIT) to assist people seeking bail. CISP workers assist with referrals to drug and alcohol counselling, anger management, ... ”
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“ If the bail application is occurring at the first mention of the charges, your client will already be at court. If the bail application is heard subsequently, you will have to arrange for the matter to be listed by sending a notice of application for bail to the informant and to the court (note ... ”
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“ Consider whether any of the following possible submissions apply to the case against the accused (this is not an exhaustive list): The offences are not of a serious nature, or are not a serious example of this offence. ”
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