Commencement of criminal proceedings

Question 1

How are criminal proceedings commenced in Victoria?

Answer 1

Criminal proceedings in Victoria are commenced by:
 Filing or signing a charge-sheet;
 Filing a direct indictment; or
 The direction of a court that a person be prosecuted for perjury (CPA s5).

Question 2

Charge sheet

Answer 2

Whether a matter is proceeding in the summary stream (Magistrates’ Court) or in the committal stream (heard before a judge and jury), it will commence with the filing of charges in the Magistrates’ Court in the name of an individual police officer, referred to as the informant.

Question 3

Timing of charges

Answer 3

• A charge sheet must be filed within 12 months after a summary offence was allegedly committed (CPA s 7(1)).
• There is no time limitation on the filing of a charge sheet for an indictable offence (CPA s 7(2)).

Question 4

How can the police charge an accused person?

Answer 4

1. File a charge sheet with the Court (CPA s 6(1)(a)).
   a. They can apply to have the Court issue a summons to answer a charge or warrant to arrest (CPA s 12). [this ensures A is aware of court date and ensure their appearance]
   b. The criminal proceeding “commences” when the informant files the charge sheet containing the charge/s they have already served on the accused with the Court (CPA s 5 and 6(1)(a)).
   c. Timing: when charge is filed
2. A criminal proceeding may commence if the accused is arrested without a warrant and is released on bail by a bail justice rather than police, then the charges are filed with the bail justice for his/her consideration on the issue of bail (CPA s6(1)(b)); or
3. If summons is issued, the proceeding commences when the charge-sheet is signed  Personally issue a charge and summons (CPA s 14 and 6(1)(c)).
   a. Timing: when PO signs the charge sheet.
   b. Common law permits a court to order the prosecution to provide any particulars that are necessary in the interests of justice. A charge sheet which omits essential factual or legal elements of the offence will be invalid.

Question 5

Requirements of a charge sheet

Answer 5

A charge sheet must be
1. in writing,
2. signed by the informant personally and
3. comply with Schedule 1 (s 6(3)).

Question 6

What is schedule 1 of CPA about?

Answer 6

Schedule 1 provides that a charge must state the offence that the accused is alleged to have committed and, contain the particulars that are necessary to give reasonable information as to the nature of the charge.

Question 7

Errors in a charge sheet

Answer 7

An error in the charge sheet won’t invalidate it (CPA s 9), the Magistrates’ Court may order that a charge- sheet be amended, unless the required amendment cannot be made without injustice to the accused (CPA s 8).

Question 8

What should be included in a charge when drafting?

Answer 8

Date, time, place, people involved and each element of the offence is included.  If this isn’t included
Mag can make order for better particulars.
The A at location on date did to specific person without lawful excuse (or property namely XYZ)

Question 9

What is an indictment?

Answer 9

• The charge-sheet of the County or Supreme Courts, document stating the charges
  An indictment must be prepared in accordance with s 159 CPA (in writing, signed by the DPP or Crown Prosecutor on behalf of the DPP & comply with Schedule 1, which sets out the offences the DPP seeks to prove beyond reasonable doubt.) It is filed in the Supreme or County Courts before plea hearing or jury trial and its filing is certified by the judge. Doesn’t commence new criminal proceeding, continues charge which was filed in MC.

Question 10

Timing requirements of an indictment?

Answer 10

According to s 163, an indictment must be filed:
* within 14 days of committal for a trial of a sexual offence with a child or cognitively impaired complainant;
* 28 days prior to trial for a sexual offence;
* within 6 months of committal in all other cases

Question 11

When is a direct indictment used?

Answer 11

A direct indictment commences criminal proceedings against the accused where:
* A Magistrate has not committed the accused to stand trial and discharged a committal proceeding (found there is evidence of insufficient weigh to sustain a conviction), and the DPP has determined to proceed with the trial anyway; or
* It would be unusual for the DPP to initiate a direct indictment without a committal proceeding at all and there is High Court authority about how that may be unfair.
As per s 177, the DPP chooses to discontinue a prosecution.

Question 12

Amendments to an indictment

Answer 12

Amendments to an indictment are permitted (s 165) or the prosecution can file over a fresh indictment (s 164).