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 Drink Driving law & legal information - all breath test, blood test and criminal defence representation & advice.

 THE MAGISTRATES COURT PROCESS

 

A typical defended traffic offence proceeds as follows:

  • Charge and summons is issued and served on you. See a lawyer.
  • The first listing of your case is a return day (also known as the mention date). Usually no attendance at court is required at mention dates. 
  • On the return date, the case might be adjourned to a further mention.
  • On the further mention date, the case is adjourned to a Summary Case Conference.
  • At a Summary Case Conference, your lawyer attends court (either with or without you) and the case is adjourned to either a contest mention or a contested hearing.
  • At a Contest Mention, you and your lawyer attend court. The case will be adjourned to a Contested Hearing date. Typically a contest hearing date happens about 6 months after your case is first listed in court.
  • At a contested hearing, prosecution witnesses attend court and the prosecutor tries to prove the offence. You and your lawyer attend court. Judgment will be given the same day or sometimes the court adjourns to consider its decision.

 

Commencing a criminal court case - Filing and Service of a Charge and Summons

In most traffic offences a court case is commenced by the police preparing a document called a charge and summons. This is a written document that is signed by the court and/or the police and then served on the accused. A charge is a court document which alleges an offence against you. A summons is a court document that invites or requires you to come to court on a particular date to answer a charge. These are contained in the one document called a "Charge and Summons".  The informant has 12 months from the date of a traffic offence to commence court proceedings by filing a charge at court, although for camera offences it is 12 months from the date of the latest nomination statement. Provided charges are filed at court within time, the police can serve the charge and  summons outside the 12 month period. There are numerous technical requirements with respect to the filing, issuing and service of charges and summonses. Failure to comply with any of these technical requirements may give rise to defences. The charge and summons can be served by posting it to the accused's address, or by delivering it to the accused personally, usually at the accused's place of residence, or leaving it for the accused with a person who appears to be over the age of 16 and who resides with the accused. The charge and summons will state on it a time and date when the case is first listed before the court. This is called a return date.

 

First Return Date

The court date stated on the "Charge and Summons" is  the "Return Date", also known as a Mention Date. Usually my clients do not go to court on the first date. A Mention Date is a date on which your case is listed in the court for administrative purposes. The file will be looked at by the registrar. It is a date on which the court wants to know what you are doing with your case. In most cases I will contact the court on or before this date to adjourn the case. Clients should not go to court on a mention date unless they are on bail, or unless they have planned  to plead guilty on that date. An accused who wants to plead guilty can request the court to list the case for a guilty plea on any day which is suitable to the accused and the court (within a reasonable time-frame).

On the return date your lawyer will normally contact the court and do one of the following things:
(a) adjourn the mention to a further mention in approximately 4 weeks time, or
(b) adjourn the mention to a summary case conference in approximately 2 to 6 weeks time.

No matter when I contact the court, the court won't adjourn the case until the mention date arrives. You do not need to attend court in person on a mention date unless you are pleading guilty on that date, or unless you are on bail. If the court sends you a notice stating that your case has been adjourned for another mention, you should assume you will not go to court on that mention date unless you are on bail or have arranged to plead guilty. I always explain this to each of my clients in conference and it is stated in my fee agreement.

No contested hearing can ever take place on a mention day. No police witnesses will be at court on a mention day, and in most cases you will not be there either. The written instructions that are given to defendants with the charge and summons do not explain this properly. After the first mention date, the court will send you a notice stating what date your case has been adjourned to.

 #mention2

Further Mention Date

On a first mention day, it is common for the case to be adjourned for further mention about 4 weeks later to enable your lawyer to investigate the case fully, especially if he or she is requesting the police brief from the informant. You do not need to attend the second mention date unless you wish to plead guilty on that date, or if you are on bail. On a second mention date, your case might undergo a case conference, or be adjourned to a case conference on a later date.  Or you can plead guilty.

 

Summary Case Conference Date

Most Magistrates courts now require all defended cases to have a Summary Case Conference before the case can be listed for either a contest mention or a hearing. A Summary Case Conference is a meeting between your lawyer and a police prosecutor at court where various aspects of the case are discussed. Usually I do not expect my clients to attend.  One purpose of a case conference is for the prosecutor to check the police brief to fix up all the holes in their case. It is also an opportunity for the parties to resolve issues, make compromises and avoid a contested hearing by having charges amended so a guilty plea can be entered or getting charges dropped.  Another purpose is to reduce the number of cases that get sent to contest mention by having the simpler cases go directly to a hearing, thereby saving court time and legal costs. If the case does not resolve at Summary Case Conference the parties must complete a Form 12 which is then filed with the Registrar to arrange the contested hearing date.

 

Contest Mention Date

If an accused enters a plea of not guilty, the court might adjourn the complicated cases for a contest mention. Clients are expected to attend court on a contest mention date. This is often the first time you will attend court for your case.  Contest mentions usually happen between 2 and 4 months after you were served with the charge and summons. A contest mention is a type of pre-hearing conference designed to try to resolve the differences between the police and the accused, to allocate court resources for the contested hearing date and to give the police a chance to try to find out what the defence strategy is. It is also a good opportunity for your lawyer to determine whether the police case has any problems with it. The court expects the parties to make attempts to resolve all issues between them. This can include the police and the accused making compromises so that a plea of guilty is entered to some or all of the charges. At a contest mention the accused can either plead guilty (in which case the matter resolves that day) or not guilty (in which case the matter is adjourned for a hearing).

All contest mentions are listed to commence at 9:30 AM but this does not mean your case will commence at 9:30AM. You can expect to be at court all morning. It is not a contested hearing date and no one is going to give any evidence to the court on this date. 

Lawyers are expected to attend a contest mention with the client in tow, although in some circumstances lawyers can attend without their clients. A represented defendant will not have to say anything to the court. Witnesses do not come to court on this date. No evidence is given. There is no hearing. The informant often attends court on this date but will not give evidence. The court will wish to know details of the defence case, especially how long the case is expected to take, how many witnesses, whether there is a need for interpreters, video links, expert witnesses, legal arguments, alibis, adjournments etc. In most cases lawyers will know the answers to these questions without needing much input from their client. At the end of the contest mention the court will set a date for a contested hearing. The parties are required to select a date on which all witnesses can attend court. Usually the contest hearing is booked for about 2 to 4 months after a contest mention.

The main difference between a case conference and a contest mention is that a case conference happens without a Magistrate getting involved in the process while a contest mention has to be booked into court before a Magistrate.

 

Contested Hearing Date

Eventually the date of your court hearing arrive. You will need to be at court before 9:15AM. If your case is listed for 9:30AM it is likely to commence later in the day. At a contested hearing the police member who laid the charges will attend court to give evidence, together with all witnesses. A contested hearing can last from an hour to several days depending on the number of witnesses and number of legal issues to be addressed. There will usually be discussions between the police and the lawyer prior to the case starting  to see if the case can resolve without a hearing going ahead.  

At the hearing you may need to get in the witness box and give sworn evidence, although it is common for a defence lawyer to call no evidence in defence and for the accused to say nothing at all at a hearing - the accused is never required to prove anything. An accused who is on bail or charged with an indictable offence must attend the hearing. Otherwise attendance by the accused in person is highly recommended but not mandatory. The accused should attend court and preferably bring someone to court to accompany them. Accuseds facing the possibility of licence loss should not assume they will have a licence at the end of the hearing. Therefore it may be wise to leave your car at home. You should hope for the best but prepare for the worst. If you are not successful in your defence, your lawyer will give a plea in mitigation of penalty. Most traffic cases finish in one day. A contested hearing date  can sometimes adjourn if any party is not ready to proceed, or the court has not got sufficient time to hear the matter.

Ex Parte hearing

An ex parte hearing occurs when the court determines a case in the defendant's absence. If the defendant doesn't adjourn the case and doesn't attend court, the court might hear and determine the case in the defendant's absence. At an ex parte hearing, the court can proceed with the case by relying on prosecution witness statements that have been filed and served before the mention date, or prosecution witnesses will attend court and give evidence to prove the charge. (If your case has been dealt with at an ex parte hearing speak to the court staff or your lawyer about your options because you should be able to have the matter reheard).

 

Warrant for arrest

At an ex parte hearing (one when the accused is not at court), the court might decide the case should not be heard in the accused's absence, especially if jail is an option. The court can decide to compel the accused to come to court for the case, and the only way to do this is to place the accused on bail with a condition that they attend court on a particular date.  The warrant is issued even though the accused has done nothing wrong by not going to court. It is simply the only means by which a Magistrate can force a person to appear in court when charged with a summary offence. The police will execute the warrant by tokenly arresting the accused, taking him or her to the police station, and about 10 minutes later releasing the accused on bail once they are satisfied of the person's identify and the accused has signed an undertaking to appear at court on a particular date. 

When the police first charge a person they can do it by serving a charge and summons, or arresting and bailing a defendant.  So a warrant has changed nothing except you are now obliged to attend court at each step of the proceeding.  Some people quite unnecessarily freak out when they discover that a warrant of arrest has been issued. It is nothing to be concerned about. The main issue is deciding whether you want the warrant executed at a time of your convenience (i.e. you go to the police station) or at a time the police choose (i.e. they come to you).  When the case next comes to court, the accused can enter a plea of not guilty and have the case adjourned to a contest date.

 

Magistrates Court sitting times

The court often lists cases for 9:30 AM, no matter what stage it is at and regardless what time is written on the summons. This means you should be at court at 9:30AM but it does not mean your case will start at 9:30AM.  Your case may not be called until 3:30PM. Usually the court will call your case when you are ready for it to be heard, so getting it stood down for a short while is not unusual. Court adjourns between 1:00PM and 2:00PM, and usually stops sitting at 4:00PM. It is best to get to court before 9:30AM, let the court staff know you are there and wait for your lawyer to find you. Your lawyer has to deal with the police and court staff prior to 9:30AM so don't panic if your lawyer is not standing at the door waiting to greet you when you arrive.

 

What is a Plea?

By pleading guilty to a charge, the accused is agreeing that all of the elements of the offence are provable by the prosecution. The accused is agreeing with the summary of facts which the prosecution allege comprise the offence. The accused is inviting the court to impose a sentence applicable under the law and commensurate with the agreed circumstances of the offence.

By pleading not guilty to a charge an accused is requiring the prosecution to prove each of the elements of the offence and to provide evidence of each and every matter that is required to be proved by the prosecution before the court can be satisfied beyond reasonable doubt that the accused has committed the offence alleged against him/her.

All accuseds are presumed to be innocent and it is up to the prosecution to prove beyond reasonable doubt that the offence was committed. That might be obvious to most people, but an astonishing number of people seem to assume from the outset that they are destined to lose their case because they have been unable to think of a defence. Although they have no legal training, they claim it will not be possible for them to prove they are innocent - as if that matters! An accused does not need to prove he/she is innocent - it is already presumed to be the case!

When pleading not guilty, an accused is not obliged to prove anything. He/she is not required to adduce any evidence, is not required to say anything at all to the court. There are many reasons why good defence lawyers often do not try to prove anything at court. Some clients expect a defence lawyer to be up late preparing defence evidence. This is not the way we defend most criminal charges. We are much more concerned about what questions we are going to ask the prosecution witnesses and what their answers might be. The burden is on the prosecution to prove the accused is guilty of an offence. A defence lawyer will focus on picking to bits the prosecution case rather than trying to present some theory his client made up.

 

Presenting a plea in mitigation

When an accused pleads guilty (or is found guilty) the accused can present a plea in mitigation of the penalty. A plea in mitigation can be made at a time convenient to the accused. Often the accused will adjourn a case to prepare for the plea date. When pleading guilty your lawyer will present to the court facts and matters which the lawyer wants the court to take into consideration when sentencing the accused. The court will take into account the accused's criminal history, the circumstances of the offence, the accused's financial, medical, domestic, employment, family and social situation. The accused can bring to court character evidence, usually in the form of letters, which the court can read and take into account when sentencing. A good character reference should speak of the relationship between the writer and the accused, of the accused's good character, particularly the accused's contribution to work, family, society or others. In driving offences it should address the accused's need for a licence. In drink driving matters it should address the accused's drinking habits. Character references should be written by people whose opinion the court will respect. Most mentions and pleas of guilty are listed to commence at 9:30 AM but this does not mean your case will commence at 9:30 AM. You can expect to be at court all morning, and sometimes the case will not be reached until the afternoon. Your lawyer will address the court on sentencing principles and attempt to persuade the court to impose a sentence most favourable to the client. In some traffic matters the court is bound by mandatory sentencing laws and it may be impossible to get a sentence reduced below a minimum level.

 

Appeals

If you are in any way unsuccessful in your case your lawyer will advise you of your right to appeal. You have 28 days to lodge an appeal to the County Court or the Supreme Court. A County Court appeal is a full rehearing of the case and a new result can be achieved. You do not need any grounds to lodge a County Court appeal. It is an automatic right to a rehearing and is especially useful if a Magistrate refuses to disbelieve the police even in the face of very strong contradictory evidence. A Supreme Court appeal is a review of the Magistrate's decisions. If the Magistrate made a decision which was not lawful the Supreme Court can overturn the result. You often can be permitted to drive a vehicle pending the hearing of an appeal.


Supreme Court of Victoria

 

Paying Court Costs & Legal Costs

If you lose your case you may be ordered to pay court costs of approximately $80.00 to $120.00, (and in some cases also witness expenses) on top of any fine that is imposed.

You will never be required to pay legal costs to Victoria Police in criminal proceedings, although you may be required to pay the costs incurred of non-police witnesses called for the prosecution.

In non-police matters (e.g. local government prosecutions, VicRoads prosecutions), sometimes the court will order that you pay some of the other party's legal costs. The amount ordered will depend on how complicated and time consuming the prosecution case is, and depend to a lesser degree on the reasons for the prosecution of the offence. Expect to be ordered to pay less than $2,500 in a typical case. In addition to the payment of the successful party's costs, you also have to pay your own legal costs.

 
 

Related Links
Road to Court Legal Aid brochure about the court process.


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