Criminal Magistrates' Court

“ Contents ”

“ Judicial College of Victoria – Publications Sentencing Advisory Council – New sentencing snapshots for burglary, robbery, causing injury, and drug offences ”

“ Magistrates’ Court Civil County Court Civil ”

“ See below for First contact - In the office. Arrest ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ The vast majority of offences have two basic elements, that is: a physical act, called the actus reus; and ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ At a committal mention hearing, the Magistrates' Court may: determine the committal proceeding; ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ Intensive corrections order These are abolished as of 16 January 2012. ”

“ 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 ... ”

“ 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 ... ”