Summary proceedings

Question 1

What is the proper venue for summary matters?

Answer 1

The proper venue in the Magistrates’ Court is the Court closest to where the alleged offence took place or where the accused lives (s 11(1)).

Question 2

Types of summary hearings

Answer 2

1. Mention hearing
2. contest mention hearing
3. sentence indication hearing
4. Diversion hearing
5. contested hearing

Question 3

What is a mention hearing?

Answer 3

• Usually the first hearing for matters determined summarily.
• The Magistrates’ Court must list the matter for mention hearing after the charge-sheet is filed if summary offence or IOTS (s 10).

Question 4

What documents should be made available by the informant for the mention hearing?

Answer 4

• According to s 53A, where the informant is a police officer, the following documents must be made available for the A at the first mention hearing:
• a copy of the preliminary brief & full brief if prepared
  o if neither have been prepared:
   a copy of the charge-sheet, statement of the alleged facts (summary), copy of criminal record/statement of no previous convictions.

Question 5

What can happen at a mention hearing?

Answer 5

According to s 53, at a mention hearing, the Magistrates’ Court may:
* if the offence is IOTS, grant a summary hearing
* proceeding immediately to hear and determine the charge
* fix a date for a contest mention hearing
* fix a date for a summary hearing of the charge

Question 6

What is summary case conferencing?

Answer 6

Outside of court event – between defence and prosecution
The SCC is a discussion between the P & D regarding pre-trial disclosure, the issues in dispute and the prospects of resolving the charges. (e.g. what gets withdrawn, rolled up and PG).
* It can be conducted in person, over the phone or by other means of communication (Magistrates’ Court Criminal Procedure Rules 2019 r22).

Question 7

What is the purpose of summary case conferencing?

Answer 7

According to s 54(1), the purpose of the SCC is to:
* identify and provide the D any information, document or thing in the possession of the P that may assist the D to understand the evidence available to the P
* identify any issues in dispute
* identify the steps required to advance the case

Question 8

Admissibility of evidence at SCC

Answer 8

Evidence of anything said or done during a SCC is not admissible in any later proceeding or judicial inquiry. Documents prepared solely for the purpose of the SCC are also inadmissible. (s 54).

Question 9

Time frames for SCC

Answer 9

 If a preliminary brief was served within 21 days of filing the charge-sheet, a SCC must be held before the charge is set down for a contest mention hearing or a summary hearing; or a request for a full brief is made under s39(1) (s 54(2)).

Question 10

When can a contest mention be heard?

Question 11

What can happen at a contest mention hearing?

Answer 11

Mainly for case management purposes according to s55 CPA – the court may request the following at the CME hearing
* request parties to provide an estimate of the time needed for the hearing
* request estimated number and the availability of witnesses for the hearing
* request parties to indicate the evidence they propose to adduce and to identify the issues in dispute
* require the accused to advise whether they’re legally represented and have funding for continued legal representation
* require the parties to advise whether there are any particular facilities needed for witnesses and interpreters
* order a party to make, file or serve any material required by the court for the proceeding
* allow a party to amend a document for the proceeding
* If the court considers that it is in the interests of justice to do so, dispense with or vary any requirement imposed on a party by or under [Part 3.2 of the Act]
* require a party to do anything else for the case management of the proceeding

Question 12

Is an accused required to attend a contest mention hearing?

Answer 12

A must attend all contest mention hearings unless the court excuses him or her from attending (s 55)

Question 13

What is the CME procedure?

Answer 13

1. P provides court with summary of the offence, this includes further particulars or evidence proposed to be presented at the contested hearing or plea hearing
2. D identifies the issue/s in dispute
   a. The Court may comment on the issue/s in dispute
   b. The Court may indicate that, if A pleads guilty, the Court would likely impose an immediate sentence of imprisonment or a sentence of a specified type.
3. Court may require from the parties the following information:
   a. The estimated number and availability of witnesses
   b. Whether the accused is legally represented and has funding for continued legal representation
   c. Whether there are any particular requirements/facilities needed for, witnesses and interpreters;
   d. A party to make, file or serve any written or oral material required by the court for the purposes of the proceeding.

Question 14

What is a contested hearing?

Answer 14

This is the hearing to determine guilt or innocence (determined by a Magistrate alone) where witnesses are called and cross-examined.

Question 15

What happens at a contested hearing?

Answer 15

This is the hearing to determine guilt or innocence (determined by a Magistrate alone) where witnesses are called and cross-examined.
1. Charges are read to the accused (s 62)
2. Pleas of guilty/not guilty are entered through legal representation (s 63)
3. Magistrate may call for a brief opening (less formal than at a trial).
4. Opening Addresses (s 65).
a. Address must be made before any evidence is given.
b. P goes 1st and purpose is to outline P’s case
5. The prosecution will then call the witnesses
a. Witnesses are examined in chief, cross-examined and, if necessary, re-examined.
6. At the conclusion of the P’s case, D may answer by calling evidence from A or witness, choose
a. not to give evidence/call a witness or submit there’s is no case to answer (s 66).
b. If unrepresented, M must inform A of this right (s 66).
c. No case submission test  “whether on the evidence as it stands [the accused] could lawfully be convicted” (May v O’Sullivan).
i. A must elect whether or not to call evidence and the Magistrate must inform A of this if A isn’t legally represented.
d. If D is calling evidence, the Magistrate request D to list the witnesses and their order (s 70) and may call on D to open its case (s 71).
7. Following the close of the D’s case (or P’s case if there is no D case), the Magistrate can give leave for P & D closings (ss 73 and 74). These can also address matters in the JDA which apply by virtue of s 4A.
P open by telling the magistrate what they expect evidence will be, D can respond e.g. we don’t accept reliability of
that W, at close of P’s case, the D can open theirs.

Question 16

No case submission test

Answer 16

c. No case submission test  “whether on the evidence as it stands [the accused] could lawfully be convicted” (May v O’Sullivan).
i. A must elect whether or not to call evidence and the Magistrate must inform A of this if A isn’t legally represented.

Question 17

What are the requirements of disclosure for D?

Answer 17

D’s disclosure  1) they must disclose any alibi evidence at least 7 days prior to contest mention (“CME”) or contested hearing (where CME is not held); 2) they must disclose any expert evidence to be relied upon within the same time frame

Question 18

When can the court make an order re diversion?

Answer 18

According to s 59 diversion may only be ordered if:
* A acknowledges responsibility for the offence
o acknowledgement of responsibility is not admissible as evidence and is not a plea (s 59(3)).
* the court considers that diversion is appropriate
* P & D consent to the program

Question 19

What happens if diversion is granted?

Answer 19

If the Court grants diversion, it may adjourn proceedings for up to 12 months to allow A to complete a diversion program (e.g. be of good behaviour, make a donation to charity, write a letter of apology to the victim).
If A complies with the conditions, then on the return date the charges will be discharged and they will not be entered on A’s criminal record at all (s 59).

Question 20

What happens if A does not comply with the diversion plan?

Answer 20

Evidence of progress in the diversion program is relevant to sentencing if the accused does not complete the diversion program and is subsequently found guilty of the offence charged (s 59(5)).

Question 21

What is a sentence indication hearing?

Answer 21

At any time during summary proceedings or IOTS, the Magistrate may indicate that, if the A pleads guilty at that time, the likely sentence the Court would impose (either term of imprisonment that commences immediately or a sentence of a specified type) (s 60(1)).

Question 22

Is a court obliged to give a sentencing indication?

Answer 22

NO

The Court can refuse to give a sentence indication if there is insufficient information regarding the impact of the offence on any victim of the offence (s 60(2))

Question 23

Can the same Mag who gave a SI, hear the contested hearing?

Answer 23

NO - unless the parties consent

A magistrate who gives a sentence indication may not sit and determine the charge if the accused then pleads not guilty, unless all the parties agree (s 61(2)).

Question 24

What happens if Accused or informant fail to appear in a summary proceeding?

Answer 24

Court may dismiss the charge or adjourn the proceeding (s 79)

Question 25

What happens if the accused fails to appear for a summary offence?

Answer 25

The Court may (s 80):
* adjourn the proceeding
* issue a warrant
* order that the summons be served personally if it wasn’t
* determine the proceeding in the accused’s absence
* The maximum penalty that can be imposed in an accused’s absence is 20 penalty units ($3,171.40) (s 87).

Question 26

What happens if the accused fails to appear for an indictable offence?

Answer 26

A warrant may be issued (s 81) or the case adjourned for an appearance to be entered.

Question 27

Which Indictable offences may be heard or determined summarily?

Answer 27

According to s 28, a charge for an indictable offence may be heard and determined summarily by the Magistrates’ Court, if:
* Schedule 2 offences;
* If the offence is described by as being
o a level 5 offence or level 6 offence; or
o punishable by level 5 or level 6 imprisonment or fine or both; or
o punishable by a term of imprisonment 10 years or less, or a fine not exceeding 1200 penalty units or both—
* A level 5 offence is punishable by 10 years imprisonment maximum and a level 6 offence is punishable by 5 years imprisonment maximum  s 109 Sentencing Act 1991.
* [Some of the more common offences in Schedule 2 include property and fraud offences of $100,000.00 value or less; burglary and robbery (under $100k); recklessly causing serious injury; aggravated burglary intent to steal; trafficking simpliciter.]

Question 28

Level 1 - 4 offences can only be heard

Answer 28

in the committal stream.

Question 29

Level 5 and 6 offences can be heard

Answer 29

in summary and committal streams.

Question 30

Max level of imprisonment for a level 5 offence

Answer 30

10 years

Question 31

Max level of imprisonment for a level 6 offence

Answer 31

5 years

Question 32

How can an IOTS charge be heard summarily?

Answer 32

According to s 29, the Magistrates’ Court may hear and determine summarily a charge for an indictable offence to which s 28(1) applies if:
 the court considers that the charge is appropriate to be determined summarily; and
 the accused consents to a summary hearing.

Question 33

What will the court consider when determining whether an IOTS should be heard summarily?

Answer 33

For the Magistrates’ Court to determine a summary hearing is appropriate, it must consider (s 29(2)):
* the seriousness of the offence
o the nature of the offence, the manner which the offence was committed (level of organisation, aggravating circumstances), whether the offence forms a part of a series of offences and the complexity of the proceeding.
* the suitability of sentences available to the court
o having regard to the criminal record of the accused
* whether a co-accused is charged with the same offence [tendency to keep co-accused together]
 A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence (s 29(3)).

Question 34

What are the benefits of a summary hearing?

Answer 34

o limited sentencing powers at MC (2 years max for one offence and 5 years max for 2 or more offences
o de novo appeal to county court

Question 35

Summary hearing for Body corporate charged with an indictable offence triable summarily

Answer 35

If a body corporate and a natural person are jointly charged with an indictable offence which may be heard summarily, the Magistrates’ Court must not hear the charge summarily against either of the accused unless each of them consents to a summary hearing; or if the body corporate fails to appear, the natural person consents to a summary hearing and the court proceeds under section 82 to hear the charge in the absence of the body corporate (s 29(5)).

Question 36

Who can apply for a summary hearing for IOTS charges?

Answer 36

o The informant or the accused may apply for a summary hearing (s 29(1)).
o The Magistrates’ Court may offer a summary hearing under section (s 29(1)).

Question 37

When can application for a summary hearing be made?

Answer 37

 An application for, a summary hearing may be made at any time before the accused is committed to stand trial (s 30(3)).

Question 38

SJA granted in committal hearing

Answer 38

If a committal hearing commences and the Magistrate grants a summary hearing, the court may, with the consent of the accused, admit as evidence in the summary hearing any evidence given by a witness during the committal hearing (s 30(7)). However, if either party requests, the Magistrate must recall any witness for examination/cross-examination and the hearing must be conducted in the same manner as a proceeding for a summary offence (s 30(8)).

Question 39

When should a preliminary brief be served?

Answer 39

A preliminary brief must be served:
o within 14 days of a written request made by the accused (s 35); or
o within 21 days of the filing of the charge sheet (s 24)

Question 40

What should a preliminary brief contain?

Answer 40

S 37 lists what the preliminary brief must contain - must contain and contain at a minimum a statement by the informant outlining the allegations, a witness and exhibit list.
- Notice re importance of legal representation and that the accused may be eligible for Legal Aid, contacts of VLA
- Priors of the accused

Question 41

What format should the statement from the informant follow in a preliminary brief?

Answer 41

S 38 – statement from the informant in the preliminary brief must be
- In the form of an affidavit; or
- Signed by the informant and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury’ or
- In form prescribed by the court rules.

Question 42

When should a full brief be served?

Answer 42

A full brief must be served:
o 14 days before a contest mention (s 39).
o A may make the request the full brief after the summary case conference is held, if the accused was served with a preliminary brief within 21 days after the charge-sheet was filed (s 39).
* If the police served A with a preliminary brief within 7 days of filing the charge-sheet, A may not request a full brief until after the summary case conference (s 39)

Question 43

What should be included in the preliminary brief?

Answer 43

S 41 lists what the full brief must contain  contains all statements to be relied upon
- Notice re importance of legal representation and that the accused may be eligible for Legal Aid, contacts of VLA
- Priors of the accused
- ROI of accused
- A transcript of any audio visual recording
- Witness list and statements from those witnesses
- Evidentiary certificates
- Description of any forensic procedure that has not been completed but the prosecution intends to rely on to establish the guilt of the accused

Question 44

Who has the disclosure obligations in a criminal proceeding?

Answer 44

There is an ongoing duty of disclosure to provide to D any evidence which comes into the P’s possession
(s 42). The informant must provide requested disclosure or state the grounds for refusal (ss 44-45)

Question 45

How is a full brief served?

Answer 45

Service means personal service and includes service on A’s solicitor (s 391), unless the informant is satisfied that ordinary service (s 394) is appropriate.

Question 46

What should be considered before the informant serves the full brief by ordinary service?

Answer 46

Ss 36(2) & 40(2) provide that in considering whether to serve a preliminary brief by ordinary service, the informant must consider:
o the nature and gravity of the alleged offence
o whether A has previously been found guilty or convicted of any similar offence
o the period of time that has elapsed since the A’s address for service was ascertained
o the manner of service of the summons to answer to the charge.

Question 47

What is the defence disclosure obligations?

Answer 47

A has a right to silence which has only been abrogated with respect to alibi and expert evidence (which must be disclosed within 14 days of committal and 14 days before trial respectively).

Question 48

What should an expert witness statement contain?

Answer 48

According to s 50, the expert witness statement must contain:
o the name and business address of the expert witness
o a statement of the witness’s qualifications to give expert evidence
o the substance of the evidence A intends to adduce, including the witness’ opinion and the basis for the opinion

Question 49

When should expert evidence be served?

Answer 49

 A must serve and file the statement of any expert witness A intends to call at least 7 days before the scheduled contest mention hearing or, if there is no contest mention hearing, the contested hearing. If the statement is not ready at that time, then the statement must be served and filed ASAP after it comes into existence (s 50).

Question 50

What is alibi evidence?

Answer 50

evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission (s 3).

Question 51

How can alibi evidence be presented when accused is legally represented?

Answer 51

If the accused is represented by a legal practitioner, then the accused may not give evidence in support of an alibi personally or adduce alibi evidence from another witness without the leave of the court unless he or she gave the prosecution or the informant a “notice of alibi” (s 51).

Question 52

When should an alibi notice be served?

Answer 52

The notice of alibi must be served on the P at least 7 days before the scheduled contest mention or, if there is no contest mention, the contested hearing. If the notice is not ready at that time, it must be served ASAP after it comes into existence (s 51).

Question 53

What should an alibi notice contain?

Answer 53

The notice of alibi must contain the following:
o the time and place of the alibi
o the name and last known address of any alibi witnesses
o if the name and address of a witness is not known, info which may assist in locating that witness (s 51).
* If the accused is unable to include the name/address of an alibi witness, the court will not allow them to call that person unless it is satisfied that the accused took reasonable steps to ensure the witness’ details would be ascertained (s 51).
o must contain sufficient particulars to inform the P of the nature of the alibi – just a name doesn’t suffice (R v Sorby [1986] VR 753).

Question 54

Can prosecution communicate with a witness listed in the alibi notice?

Answer 54

NO
P cannot communicate with a witness named in an alibi notice before the conclusion of the proceeding, unless it has consent and is in the presence of the A’s legal practitioner or, if self- represented, the accused (s 52).  contravention of s 52 is a criminal offence