Committals: Report (html)

2. The present committal and pre-trial system

Introduction

2.1 This chapter provides an overview of pre-trial indictable procedure in Victoria, including committal proceedings in the Magistrates’ Court. It describes current procedures from the filing of charges to trial or sentence. The procedures described here are generally followed for indictable offences filed in the Children’s Court but issues specific to the Children’s Court are discussed in Chapter 12.

2.2 The flow chart on page 17 shows how indictable matters proceed through the jurisdiction of the Magistrates’ Court.

Prosecuting indictable offences

2.3 Criminal offences are categorised as either ‘indictable’ or ‘summary’.

2.4 Indictable offences are serious crimes that are heard and determined before a judge and jury in the County or Supreme Courts^[99]—although in some circumstances, less serious indictable offences may be dealt with in the Magistrates’ Court (‘indictable offences triable summarily’).^[100]

2.5 Summary offences are less serious offences that are heard and determined in the Magistrates’ Court by a magistrate alone.^[101]

2.6 Although indictable offences are prosecuted and sentenced in the County or Supreme Courts, charges for these offences are usually filed in the Magistrates’ Court by the investigating officer (often a police officer), who is known as ‘the informant’.^[102] The Magistrates’ Court registrar lists these matters in the committal stream of the Magistrates’ Court. They only enter the jurisdiction of a higher court after some preliminary procedural matters are dealt with in the Magistrates’ Court. These procedures are set out in chapter four of the Criminal Procedure Act 2009 (Vic) (CPA) and together constitute a ‘committal proceeding’.

Figure 1: The present committal and pre-trial system^[103]

Source: Department of Justice, Victoria. This is an updated version of a flowchart that appeared in Criminal Procedure Act 2009—Legislative Guide, February 2010, 118.

2.7 Committal proceedings in the Magistrates’ Court must be held in all cases involving charges for an indictable offence, unless:

• the accused elects to stand trial after service of the brief of evidence^[104]

• the indictable offence can be heard summarily

• the DPP files a direct indictment.^[105]

2.8 After committal, another charging document called an ‘indictment’ must be filed by the Director of Public Prosecutions (DPP) in the higher court as the basis for proceedings in that court.^[106] The indictment does not, however, commence a new criminal proceeding against the accused: the proceedings in the higher court are a continuation of the proceedings that commenced in the Magistrates’ Court with the filing of a charge sheet.^[107]

Direct indictment by the DPP

2.9 A direct indictment may be filed even though an accused has been discharged at committal,^[108] no committal has been held,^[109] or a discontinuance has been filed.^[110]

2.10 Except where the accused person consents to the filing of a direct indictment, the decision to do so is a special decision that must be made by the Director’s Committee in accordance with specified guidelines.^[111] These provide that a direct indictment should only be filed where there are strong grounds for justifying a trial without a committal proceeding, and the resulting trial would not be unfair to the accused.^[112]

2.11 While the exercise of the power to file a direct indictment is not subject to judicial review,^[113] a court may order a stay of proceedings or make other orders—such as for a voir dire hearing—where necessary to prevent a miscarriage of justice flowing from the use of the direct indictment and to ensure a fair trial.^[114]

2.12 As well as filing a direct indictment without a prior committal proceeding, the DPP may file a direct indictment after a magistrate has declined to commit an accused for trial if, in the opinion of the Director’s Committee, the magistrate made an error in discharging the accused.^[115]

2.13 Direct indictments are rare—just 19 were filed in 2017–18.^[116] Of these, seven were filed following discharge of one or more charges at a committal hearing.^[117] In 2018–19, the DPP filed 15 direct indictments, five following discharge of one or more charges at a committal hearing.^[118]

Committal proceedings in the Magistrates’ Court

The purposes of committal proceedings

2.14 The statutory purposes of committal proceedings, set out in section 97 of the CPA, are:

• to determine whether a charge for an offence is appropriate to be heard and determined summarily^[119]

• to determine whether there is evidence of sufficient weight to support a conviction for the offence charged^[120]

• to determine how the accused proposes to plead to the charge^[121]

• to ensure a fair trial, if the matter proceeds to trial, by—

– ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions

– enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses

– enabling the accused to put forward a case at an early stage if the accused wishes to do so

– enabling the accused to adequately prepare and present a case

– enabling the issues in contention to be adequately defined.^[122]

2.15 These statutory purposes are consistent with how the courts have characterised the functions of committal proceedings at common law.^[123]

The component parts of committal proceedings

2.16 Court appearances in a committal proceeding may include:

• a filing hearing

• a special mention hearing^[124]

• a compulsory examination hearing^[125]

• a committal mention hearing

• a committal case conference

• a committal hearing—although not in cases involving a charge for a sexual offence where the complainant was a child or a person with a cognitive impairment when the proceeding commenced.^[126]

2.17 Aside from special mention and compulsory examination hearings, each of these hearings is described below, along with the associated procedural requirements.

Filing hearing

2.18 A filing hearing must be held soon after charges are filed.^[127] At the filing hearing, a solicitor from the Office of Public Prosecutions (OPP) or, in regional areas, a police prosecutor appears on behalf of the prosecution.

2.19 A magistrate establishes a timetable for the committal proceedings, including setting dates for service of the hand-up brief (containing the evidence in support of the charges) and the committal mention hearing. The magistrate also considers any application for bail, unless the case involves charges for treason or murder.^[128]

Hand-up brief

2.20 If the accused indicates an intention to plead guilty and provides written consent to the service of a plea brief, the informant may serve a plea brief, which is less substantial than a hand-up brief.^[129]

2.21 Unless a plea brief has been served and the accused pleads guilty to the charge, the informant must serve on the accused a hand-up brief.^[130]

2.22 A hand-up brief must include^[131]:

• a notice in Magistrates’ Court Form 29 containing information about committal proceedings, including:

– the purpose of the various stages

– the date of the committal mention hearing

– the importance of the accused obtaining legal representation and advising them of their right, if eligible, to legal aid^[132]

– the requirement that the parties have discussions before the committal mention hearing. The purposes of these discussions include finding out how the accused proposes to plead; and if the accused wants to inspect materials listed in the hand-up brief but the informant objects to that inspection.^[133]

• a copy of the charge sheet

• a statement of the material facts relevant to the charge

• any information, document or thing on which the prosecution intends to rely in the committal proceedings, including copies of:

– any record of the accused’s interview with police or statement signed by the accused, or other evidentiary material in the possession of the informant relating to a confession or admission made by the accused

– witness statements

– transcripts of compulsory examination hearings or examinations under part 4 of the Major Crime (Investigative Powers) Act 2004 (Vic)

– documents that the prosecution intends to produce as evidence

– a list of things the prosecution intends to tender as exhibits.

• a description of any forensic procedure that has not yet been completed and on which the prosecution intends to rely

• any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence, including a list of persons who have made statements which the prosecution does not intend to tender at the committal hearing and copies of those statements, and copies of reports or tests carried out on behalf of the prosecution but on which it does not intend to rely

• if the committal proceeding relates to a charge for a sexual offence, a copy of every statement made by the complainant to any police officer that relates to the alleged offence and contains an acknowledgement of its truthfulness

• a copy or list of any other information, documents or things required by the rules of court to be included in the hand-up brief. The rules of court specify that these include witnesses’ prior convictions, surveillance logs, crime scene notes, exhibit logs and diaries.^[134]

2.23 The hand-up brief must be accompanied by a list of its contents, signed by the informant, in Magistrates’ Court Form 30.^[135]

Time frame for service of the hand-up brief

2.24 The time frame for service on the accused of the hand-up brief is not directly specified in the CPA, but parameters are imposed by the requirements that:

• a committal mention hearing must be held within six months of the commencement of proceedings or within three months if a sexual offence is involved,^[136] unless it is in the interests of justice to extend this time^[137]

• the hand-up brief must be served on the accused at least 42 days before the committal mention hearing, unless the Magistrates’ Court fixes another period for service or the accused gives written consent to a lesser period.^[138]

2.25 A magistrate will consider the circumstances of the case when fixing the date for service of the hand-up brief. The standard time for service is usually six weeks after the filing hearing.^[139]

Election to stand trial

2.26 At any time after service of the hand-up brief, the accused may elect to stand trial without a committal proceeding by filing a notice to this effect with the court and serving a copy on the informant.^[140] As soon as practicable, the Magistrates’ Court must have the accused attend before it and if it considers that the accused understands the nature and consequences of the election, it must commit the accused for trial.^[141]

Application for summary jurisdiction

2.27 If all strictly indictable charges in a case are withdrawn by the prosecution, leaving only indictable charges that are triable summarily or summary charges, the Magistrates’ Court may offer or the accused may make an application for summary jurisdiction.^[142] If granted, the remaining charges will be determined by a magistrate.^[143]

Case direction notice (Form 32)

2.28 A ‘case direction notice’, known as a ‘Form 32’,^[144] must be filed jointly by the parties and signed by or on behalf of the accused and the DPP or, if the DPP is not conducting the committal proceeding, the informant.^[145]

2.29 The purpose of the case direction notice is to require the parties to engage in discussions to explore early resolution of the case, identify the issues in the case and identify the witnesses, if any, whom the accused will seek leave to cross-examine.^[146]

2.30 If the accused is unrepresented, the DPP (or if the DPP is not conducting the committal proceeding, the informant) files the case direction notice and informs the court that ‘the accused has not participated in any discussion or other activity in connection with the preparation’ of the notice.^[147]

2.31 The case direction notice must be filed seven days before the committal mention hearing^[148] and must include:

• the procedure proposed for dealing with the matter, or if an adjournment of the committal mention hearing would assist the parties in determining how the matter should be dealt with^[149]

• any application for summary jurisdiction^[150]

• if the parties have not reached agreement, details of the issues in contention^[151]

• details of any applications to cross-examine witnesses.^[152]

2.32 The case direction notice may also include a statement that the accused:

• requires the production of specified items in the hand-up brief^[153]

• requires copies of things that the accused believes should have been included in the hand-up brief^[154]

• is prepared, or is not prepared, to proceed with the committal hearing while a forensic procedure, examination or test described in the hand-up brief remains incomplete.^[155]

2.33 If the accused seeks the production of material listed in the hand-up brief and the informant objects, the items must be described in the case direction notice and the informant’s grounds for objecting must be listed.^[156]

Committal case conference

2.34 Section 127 of the CPA provides that the Magistrates’ Court may direct the parties to appear at a committal case conference conducted by a magistrate.^[157] Where practicable, the committal case conference should be conducted on the same day as the committal mention hearing.^[158] See paragraph 2.52 below for further information about how the court conducts these case conferences.

2.35 What is said or done at the committal case conference, and documents prepared solely for its purposes, are not subsequently admissible as evidence except with the agreement of all the parties to the conference.^[159]

2.36 In practice, committal case conferences are confined to matters involving an offence against the person, robbery, armed robbery or aggravated burglary.^[160]

Committal mention

2.37 The committal mention is the central case management hearing in committal proceedings.^[161] As well as conducting committal case conferences, the Magistrates’ Court may make any orders it considers appropriate,^[162] and may:

• immediately determine the committal proceeding^[163]

• offer a summary hearing or determine an application for a summary hearing^[164]

• hear and determine applications for leave to cross-examine^[165]

• hear and determine any objection to disclosure of material^[166]

• fix another date for a committal mention^[167]

• fix a date for a committal hearing—although not in matters involving a sexual offence where the complainant was a child or person with a cognitive impairment at the time the proceedings commenced.^[168]

Committal hearing

2.38 At a committal hearing, if one is held, the Magistrates’ Court considers whether to commit the accused to stand trial based on the material in the hand-up brief and any other evidence given during the hearing.^[169]

2.39 After the cross-examination of witnesses, if any, the Magistrates’ Court must ask the accused whether they plead guilty or not guilty,^[170] and must inform the accused that the sentencing court may take into account a plea of guilty and its timing.^[171]

Cross-examination of witnesses

2.40 Witnesses, including complainants, may be cross-examined at the committal hearing where leave to cross-examine has previously been granted.^[172]

Test for committal

2.41 Before committing the accused to a higher court for trial or sentence, the Magistrates’ Court must determine if the evidence is of sufficient weight to support a conviction for an indictable offence.^[173] This involves assessing whether a reasonable jury could convict the accused on the evidence available.^[174]

2.42 The prosecution case should be taken at its highest,^[175] and:

the magistrate need not consider whether a jury should or would be satisfied beyond reasonable doubt, but merely whether a jury could be so satisfied.^[176]

2.43 The committal test has been described as a task requiring:

a committing magistrate … essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could.^[177]

2.44 If the Magistrates’ Court determines the evidence is not of sufficient weight to support a conviction for any indictable offence, it must discharge the accused.^[178]

2.45 If the Court determines the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, it must commit the accused for trial.^[179]

2.46 If the Court determines the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, it may adjourn the committal proceeding to allow the informant to file a charge sheet in respect of that other offence and:

• if the charge sheet is filed, must commit the accused for trial,^[180] or

• if the informant does not file a charge sheet for the other offence within the period of adjournment, must discharge the accused.^[181]

2.47 Where an accused is charged with summary offences that are related to the indictable offence in respect of which the accused has been committed for trial, the Magistrates’ Court must order that the related summary offences are transferred to the trial court.^[182]

Costs orders

2.48 The Magistrates’ Court has an unfettered discretion to make costs orders in criminal proceedings within its jurisdiction.^[183] If the Magistrates’ Court awards costs against an informant who is a police officer, the order must be made against the Chief Commissioner of Police.^[184]

2.49 In exercising its discretion to make costs orders, the Magistrates’ Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the court is satisfied resulted in prolonging the proceeding.^[185]

List management in the Magistrates’ Court

2.50 The Melbourne Magistrates’ Court has a group of dedicated committal list magistrates led by the criminal supervising magistrate. In regional areas all sitting magistrates may be called on to manage committal stream matters.

2.51 The Magistrates’ Court emphasises that it manages committal proceedings proactively from the outset, with the aim of achieving resolution or ensuring proper preparation for trial as quickly and efficiently as possible.^[186]

2.52 At the committal mention, magistrates may give the parties a frank assessment of the strength of the evidence. During case conferences, which in the Melbourne Magistrates’ Court are usually conducted by the criminal supervising magistrate, parties are required to explain their attitudes to the issues in the case and any barriers to resolution. Around half of the indictable stream matters that resolve within the jurisdiction of the Magistrates’ Court resolve at the committal mention and/or case conference.^[187]

2.53 About 40 per cent of all matters that resolve within the jurisdiction of the Magistrates’ Court resolve at a committal hearing.^[188] In some instances, matters resolve part way through a committal hearing, removing the need to call all witnesses in relation to whom leave to cross-examine has been granted.^[189] Magistrates also engage actively with the parties at the hearing to encourage resolution. The Commission was told, however, that some regional magistrates are less proactive in this regard.

Pre-trial procedure in the higher courts

Procedure immediately following committal

2.54 Following committal, a Magistrates’ Court registrar forwards to the DPP the materials from the committal proceedings including the transcript of evidence given and any statements admitted in evidence (‘the depositions’).^[190] The DPP must file the depositions in the County or Supreme Court as soon as practicable after committal,^[191] and serve them on the accused.^[192]

Filing an indictment

Time limits for filing an indictment

2.55 Assuming that the DPP decides to pursue the prosecution, which they are not required to do,^[193] they must file an indictment against a person committed for trial:

• for non-sexual offence matters: within six months after the date of committal^[194]

• for sexual offence matters in which the complainant was not a child or person with a cognitive impairment when the criminal proceedings commenced: at least 28 days before the day on which the trial is listed to commence^[195]

• for sexual offence matters in which the complainant was a child or person with a cognitive impairment when the criminal proceedings commenced: within 14 days after the date of committal.^[196]

2.56 The periods for filing an indictment may be extended or abridged by order of the Court if it believes that this is in the interests of justice.^[197]

Choice of Supreme or County Court

2.57 The DPP may choose to file an indictment in the Supreme Court, or in the County Court if all the indictable offences alleged in the indictment are within the County Court’s jurisdiction.^[198] The County Court has jurisdiction over all offences except treason and misprision of treason; murder and child destruction; attempted murder; and unlawful combinations or conspiracies to commit any offence that, when committed by an individual acting alone, could only be tried in the Supreme Court.^[199]

2.58 Matters outside the County Court’s jurisdiction are described as being within the ‘exclusive jurisdiction’ of the Supreme Court. The Supreme Court has jurisdiction in all Victorian cases but is not required to exercise its jurisdiction if jurisdiction has also been given to another court.^[200]

2.59 When deciding which court to file an indictment in, the DPP must have regard to:

• the complexity of the case^[201]

• the seriousness of the alleged offence^[202]

• any particular importance attaching to the case^[203]

• any other consideration that the DPP considers relevant.^[204]

Case conferences supervised by the higher courts

2.60 As in the Magistrates’ Court, court-supervised case conferencing in the higher courts currently occurs in some but not all matters.

2.61 In the County Court, court-supervised case conferencing is being trialled in the Long Trial List and as part of the Active Case Management System (ACMS). In the ACMS, a distinction is drawn between matters that can be managed administratively and matters that require intensive case management. The former will generally be cases that arrive in the County Court’s jurisdiction ready to go to trial, without outstanding disclosure, and with the issues for trial clearly identified by the parties and not susceptible to resolution.^[205] The latter might be cases where there are issues in dispute that can be refined, substantial pre-trial legal issues, or multiple accused.^[206] In these matters, a case conference will generally be listed within 8-10 weeks of the committal hearing.^[207] The case conference will be conducted by a judge.^[208]

2.62 In the Supreme Court, the Principal Judge directs appropriate cases to participate in case conferencing, which is overseen by reserve judges.^[209]

Pre-trial cross-examination in the higher courts

2.63 In some circumstances, leave may be given to cross-examine witnesses within the jurisdiction of the trial court but prior to the trial itself (see Chapter 11).

List management in the County Court

2.64 Cases are allocated to particular lists within the County Court’s Criminal Division, including a general list, a list for matters involving sexual offences, the Long Trial List, the special hearing list for sexual offence matters where the complainant was a child or person with a cognitive impairment when the proceedings commenced, and the ACMS which is currently being piloted.^[210]

2.65 Until the inauguration of the ACMS in December 2019, most matters were listed for an initial directions hearing (IDH) in the County Court on the next sitting day following committal.^[211]

2.66 ACMS matters are not listed for a directions hearing until 14 days after committal,^[212] and this directions hearing may be vacated where the judicial registrar managing the list makes an assessment that the matter can be listed for trial immediately.^[213] In such cases, a trial date will be provided and a directions hearing listed four weeks before this date.^[214]

2.67 Trial material will generally have to be filed within eight to ten weeks of the committal.^[215] This material includes:

• depositions

• the indictment

• summary of prosecution opening and notice of pre-trial admissions

• Evidence Act and/or Jury Directions Act notices

• defence response to the prosecution opening

• notice of pre-trial admissions sought.^[216]

2.68 The County Court’s Practice Note for the ACMS requires parties to be ‘in a position to meaningfully progress the matter’ whenever they appear before the court.^[217] It states ‘Practitioner compliance with Court directions … is critical’ and notes that the Court will list a matter for Mention before the Judicial Registrar in order to address non-compliance.^[218]

2.69 For matters in the County Court’s general and sexual offences lists (excluding matters involving a sexual offence where the complainant was a child or person with a cognitive impairment when the proceedings commenced), an IDH is held on the next sitting day following the committal hearing.^[219]

2.70 Parties must come to an IDH prepared to answer a list of questions set out by the County Court in its Criminal Division Practice Note, such as:

• What are the factual issues in dispute?

• What is not in dispute?

• How can the parties narrow the issues in dispute?

• Are there any outstanding disclosure issues?

• Do any applications need to be made?^[220]

2.71 All sexual offence cases involving a complainant who was a child or person with a cognitive impairment when proceedings commenced are listed in the County Court’s Special Hearing Rolling List, which sits fortnightly.^[221]

2.72 These cases are not listed for an IDH until at least 28 days after the date of committal.^[222] The prosecution must file and serve trial materials no later than 14 days after committal.^[223]

2.73 If an application is made for pre-trial cross-examination of witnesses under section 198A (see Chapter 11), the parties must jointly file a Form 198A, ‘Application for Pre-Trial Cross-Examination’, no later than seven days before the IDH.^[224]

2.74 If confidential communications are sought by the defence, the relevant applications and draft subpoenas must be filed and served no less than seven days before the IDH.^[225]

2.75 At the IDH, both parties must be fully familiar with the matter and be able to make decisions as to its future conduct.^[226]

2.76 Parties must come to an IDH prepared to answer similar questions to those set out in paragraph 2.70. In addition, they should be prepared to say if pre-trial cross-examination will assist in resolution of the matter, and if so, how long this cross-examination will take.^[227]

2.77 At the conclusion of the IDH, the proceeding will either be adjourned for:

• section 198A pre-trial cross-examination hearing

• final directions hearing

• special hearing

• trial.^[228]

2.78 If the matter is listed for a final directions hearing, the court will generally make orders for the filing of documents before the final directions hearing.^[229]

County Court regional matters

2.79 When an accused is committed for trial to a regional (circuit) location, the matter will be listed for a circuit directions hearing (CDH) in the next CDH list for that particular location.^[230]

2.80 At the CDH, both parties are required to be fully familiar with the matter.^[231]

2.81 Parties may appear from Melbourne or from a regional court location for all such hearings.^[232] Video links are automatically arranged between courts for all CDHs. All accused on bail must attend the CDH but can appear via video link from any County Court location. Accused in custody who are legally represented are not required to attend either in person or via video link unless the Court orders otherwise or at the written request of the parties.^[233]

2.82 Additional pre-trial listings may be made as the case requires.^[234]

List management in the Supreme Court

2.83 Supreme Court matters are listed for post-committal directions hearing (PCDH) within 24 hours of committal if the committal proceedings were conducted in Melbourne, or within five days if the committal proceedings were conducted in a regional area.^[235]

2.84 A trial date is usually set at the PCDH.

2.85 Following the PCDH, the Supreme Court conducts case management of matters through the Principal Judge. Court-supervised case conferences currently occur on an ad hoc basis.

99. The majority of indictable offences are listed in: Crimes Act 1958 (Vic) s 2B; Wrongs Act 1958 (Vic) s 2A. Offences in other legislation that are described as being level 1–6 or punishable by level 1–6 imprisonment, fine or both are presumed to be indictable offences unless the contrary intention appears: Judicial College of Victoria, ‘2.5 Summary and Indictable Offences’, Victorian Criminal Proceedings Manual (Online Manual, 1 November 2019) [3] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/indexpage.htm#27318.htm>.

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100. Criminal Procedure Act 2009 (Vic) s 28 specifies that the following indictable offences may be heard and determined summarily, unless the contrary intention appears in the Criminal Procedure Act or other legislation or subordinate instruments: level 5 or level 6 offences; offences punishable by level 5 or level 6 imprisonment, fine or both; offences punishable by a term of imprisonment of not more than 10 years, a fine of not more than 1200 penalty units or both; or offences listed in schedule 2 of the Act. Such offences can only be heard summarily if the Magistrates’ Court considers that it is appropriate to hear and determine the charge summarily and the accused consents to a summary hearing, Criminal Procedure Act 2009 (Vic) s 29. The informant or the accused may apply for a summary hearing, or the Magistrates’ Court may offer a summary hearing without any application being made, Criminal Procedure Act 2009 (Vic) s 30.

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101. The procedure for prosecuting summary offences is set out in in chapter three of the Criminal Procedure Act 2009 (Vic).

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102. Note that a charge sheet need not be filed with a registrar of the Magistrates’ Court—if an accused was arrested without warrant and released on bail, the charge sheet may be filed with a bail justice. Criminal proceedings may also be commenced by a police officer or public official signing a charge sheet if a summons to answer a charge is at the same time issued by that person. The charge sheet and summons must be filed with a registrar of the Magistrates’ Court within 7 days of signing the charge sheet: Criminal Procedure Act 2009 (Vic) ss 5, 6.

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103. References are to chapters, parts and divisions of the Criminal Procedure Act 2009 (Vic).

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104. The accused may elect to stand trial at any time after service of a hand-up brief (which contains the evidence in the case): Criminal Procedure Act 2009 (Vic) s 143. See sub-heading below, ‘Election to stand trial’.

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105. See Criminal Procedure Act 2009 (Vic) s 5 (‘a criminal proceeding is commenced by— … (b) filing a direct indictment in accordance with section 159’), Criminal Procedure Act 2009 (Vic) s 96 (‘a committal proceeding must be held in all cases in which the accused is charged with an indictable offence, except where—(a) a direct indictment is filed; or (b) the charged is heard and determined summarily’); Criminal Procedure Act 2009 (Vic) s 159 (‘DPP or Crown Prosecutor may file an indictment’), Criminal Procedure Act 2009 (Vic) s 161 (‘Direct indictment commences criminal proceeding’) and the definition of ‘direct indictment’ in section 3 of the Criminal Procedure Act 2009 (Vic).

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106. Criminal Procedure Act 2009 (Vic) s 159. A Crown Prosecutor may file an indictment in the name of the DPP. Section 163 imposes time limits for the filing of indictments following committal for trial in various classes of cases.

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107. Criminal Procedure Act 2009 (Vic) s 162.

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108. Ibid ss 159, 161. See also Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 4 [7] <http://www.opp.vic.gov.au/Resources/Policies>.

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109. Criminal Procedure Act 2009 (Vic) ss 159, 161. See also Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 5 [8]–[9] <http://www.opp.vic.gov.au/Resources/Policies>.

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110. Criminal Procedure Act 2009 (Vic) ss 159, 161. See also Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 5 [10] <http://www.opp.vic.gov.au/Resources/Policies>.

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111. See section 3 (‘definitions’) and Public Prosecutions Act 1994 (Vic) ss 45B–45H.

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112. Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 5 [8] <http://www.opp.vic.gov.au/Resources/Policies>.

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113. Cook v The Queen [2019] VSCA 87, [22].

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114. Barton v The Queen (1980) 147 CLR 75; R v Dupas [2006] VSC 481; (2006) 14 VR 228; Cook v The Queen [2019] VSCA 87.

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115. The Director’s Committee must also be satisfied that the DPP’s criteria governing the decision to prosecute are satisfied and there has not been unreasonable delay between the accused being discharged and the decision to directly indict: Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 4 [7] <http://www.opp.vic.gov.au/Resources/Policies>.

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116. Office of Public Prosecutions Victoria, Response to VLRC Request for Statistics—Review of Committals (24 April 2019). See also: Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 24 [3.80].

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117. Email from Office of Public Prosecutions Victoria to Victorian Law Reform Commission, 9 January 2020.

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118. Ibid.

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119. Criminal Procedure Act 2009 (Vic) s 97(a).

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120. Ibid s 97(b).

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121. Ibid s 97(c).

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122. Ibid s 97(d)(i)-(v).

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123. Grassby v The Queen (1989) 168 CLR 1, 15 (Dawson J); Barton v The Queen (1980) 147 CLR 75, 99 (Gibbs ACJ and Mason J).

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124. A special mention hearing may be held at any time during committal proceedings to allow the court to: amend the date for a hearing in the proceedings; make orders or directions that the court considers appropriate for the management of the proceedings; immediately conduct a committal mention hearing and determine whether to discharge or commit the accused, or automatically commit for trial an accused who has elected to stand trial: Criminal Procedure Act 2009 (Vic) s 153.

     ↑

125. At any stage after filing a charge but before a committal hearing, the informant may seek an order requiring a person to attend court for examination, or to produce a document or some other thing: Criminal Procedure Act 2009 (Vic) ss 103-4.Compulsory examination hearings are most commonly used when a prosecution witness has refused to provide a written statement. The transcript of the compulsory examination hearing then constitutes the evidence of that witness and forms part of the hand-up brief.

     ↑

126. Criminal Procedure Act 2009 (Vic) s 100(1A).

     ↑

127. Within seven days if the accused has been arrested and either remanded in custody or granted bail, and within 28 days if a summons to answer charge has been issued: Criminal Procedure Act 2009 (Vic) s 102.

     ↑

128. Criminal Procedure Act 2009 (Vic) s 101. Only the Supreme Court can grant bail to a person accused of treason, and only the Supreme Court or a lower court at the time of committing the person for trial, may grant bail to a person accused of murder: Bail Act 1977 (Vic) s 13.

     ↑

129. Criminal Procedure Act 2009 (Vic) ss 107(2), 116. A plea brief must contain a copy of the charge sheet, a statement of the material facts relevant to the charge, statements signed by the accused or records of interview of the accused in the informant’s possession: Criminal Procedure Act (Vic) s 117.

     ↑

130. Criminal Procedure Act 2009 (Vic) s 107.

     ↑

131. Ibid s 110.

     ↑

132. Criminal Procedure Act 2009 (Vic) s 110(a); Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 57(1).

     ↑

133. Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 57(1), Form 29.

     ↑

134. Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 57(2), Form 30. Magistrates’ Court Practice Direction 3 of 2019 sets out additional ‘Standard Disclosure Material’ (Form 32A) that must be served with the hand-up brief in all section 123 matters, involving a sexual offence where the complainant was a child or person with a cognitive impairment at the time the proceeding commenced.

     ↑

135. Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 57(2), Form 30.

     ↑

136. Criminal Procedure Act 2009 (Vic) s 126.

     ↑

137. Ibid s 126(2).

     ↑

138. Ibid s 108(1). Within seven days after service of the brief on the accused, a copy must be filed with the Magistrates’ Court registrar and, if the DPP is conducting the committal proceeding, forwarded to the DPP: Criminal Procedure Act 2009 (Vic) s 109.

     ↑

139. Submission 14 (Magistrates’ Court of Victoria).

     ↑

140. Criminal Procedure Act 2009 (Vic) s 143. The notice must be in Magistrates’ Court Form 38: Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 66.

     ↑

141. Criminal Procedure Act 2009 (Vic) s 143(3).

     ↑

142. Ibid 125(1)(b).

     ↑

143. In accordance with the procedure set out in Criminal Procedure Act 2009 (Vic) s 30.

     ↑

144. Magistrates’ Court Criminal Procedure Rules 2019 (Vic) r 59; Form 32–Case Direction Notice.

     ↑

145. Criminal Procedure Act 2009 (Vic) s 118.

     ↑

146. Magistrates’ Court of Victoria, Practice Direction No 6 of 2013: Directions Concerning the Case Direction Notice, 10 October 2013.

     ↑

147. Criminal Procedure Act 2009 (Vic) s 118(2) and see Form 32.

     ↑

148. Ibid s 118(1).

     ↑

149. Ibid s 119(b).

     ↑

150. Magistrates’ Court Form 32, paragraph 3, Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 59.

     ↑

151. Magistrates’ Court Form 32, paragraph 2, Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 59.

     ↑

152. Criminal Procedure Act 2009 (Vic) s 119(c).

     ↑

153. Ibid s 119(e)(i).

     ↑

154. Ibid s 119(e)(ii).

     ↑

155. Ibid s 119(f).

     ↑

156. Magistrates’ Court Form 32, paragraph 7 (Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 59.

     ↑

157. Criminal Procedure Act 2009 (Vic) s127(1).

     ↑

158. Ibid s 127(2).

     ↑

159. Ibid s 127(3).

     ↑

160. Pursuant to Magistrates’ Court of Victoria, Practice Direction No 7 of 2013: Committal Case Conference, 10 October 2013. Offences against the person are listed: Crimes Act 1958 (Vic) ss 15–34A. While originally introduced as a nine month pilot, court supervised case conferencing in these matters has continued.

     ↑

161. Explanatory Memorandum, Criminal Procedure Bill 2009 (Vic) 48.

     ↑

162. Criminal Procedure Act 2009 (Vic) s 125(g).

     ↑

163. Ibid s 125(1)(a).

     ↑

164. Ibid s 125(1)(b).

     ↑

165. Ibid s 125(1)(c).

     ↑

166. Ibid s 125(1)(e).

     ↑

167. Ibid s 125(1)(f).

     ↑

168. Ibid s 125(1)(d).

     ↑

169. Ibid s 141.

     ↑

170. Ibid s 144(1)(a).

     ↑

171. Ibid s 144 (1)(b).

     ↑

172. Ibid s 130. The conditions for the grant of leave to cross-examine are set out in s 124 and in Chapter 11 of this report. As noted earlier, leave cannot be granted in cases involving a charge for a sexual offence where the complainant was a child or a person with a cognitive impairment when the proceeding commenced: s 123.

     ↑

173. Criminal Procedure Act 2009 (Vic) s 141(4).

     ↑

174. Judicial College of Victoria, ‘4.4.5 Determination of Committal Proceeding’, Victorian Criminal Proceedings Manual (Online Manual, 1 November 2019) [7].

     ↑

175. Forsyth v Rodda (1988) 37 A Crim R 50, 68-69; Forsyth v Rodda (1989) 87 ALR 699.

     ↑

176. Thorp v Abbotto (1992) 34 FCR 366, [24] per Gummow J (with whom O’Loughlin J agreed), emphasis added.

     ↑

177. Thorp v Abbotto (1992) 34 FCR 366; [28] per Lockhart J, with whom O’Loughlin J also agreed.

     ↑

178. Criminal Procedure Act 2009 (Vic) s 141(4)(a).

     ↑

179. Ibid s 141(4)(b).

     ↑

180. Ibid s 141(4)(c).

     ↑

181. Ibid s 141(5).

     ↑

182. Ibid s 145. Section 242 of the Criminal Procedure Act (Vic) provides that the County Court and Supreme Court have jurisdiction to hear summary matters founded on the same set of facts as the indictable offence in respect of which the accused has been committed.

     ↑

183. Criminal Procedure Act 2009 (Vic) s 401(1).

     ↑

184. Ibid s 401(5).

     ↑

185. Ibid s 401(2) While the High Court has made it clear that an award of costs is an indemnity for a successful party and is not intended to punish the unsuccessful party, or to censure its conduct in the proceeding, this does not limit the power of the court to order costs where it is just and reasonable to do so: Latoudis v Casey (1990) 170 CLR 534.

     ↑

186. Submission 14 (Magistrates’ Court of Victoria).

     ↑

187. Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 18 [3.47], Table 3.

     ↑

188. Ibid.

     ↑

189. Submissions 14 (Magistrates’ Court of Victoria), 24 (Law Institute of Victoria).

     ↑

190. Criminal Procedure Act 2009 (Vic) s 146.

     ↑

191. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, para 5.1.

     ↑

192. Criminal Procedure Act 2009 (Vic) s 147.

     ↑

193. Ibid s 156(b). As well as being free to choose whether to indict post-committal, the DPP may also discontinue a prosecution at any time except during trial, whether or not an indictment against the accused has been filed: Criminal Procedure Act 2009 (Vic) s 177.

     ↑

194. Ibid s 163(1).

     ↑

195. Ibid s 163 (3).

     ↑

196. Ibid s 163 (2).

     ↑

197. Ibid ss 163(1)(b), 163(2)(b), 163(3)(b), 247.

     ↑

198. Ibid s 160.

     ↑

199. County Court Act 1958 (Vic) s 36A.

     ↑

200. Constitution Act 1975 (Vic) ss 85, 87(1).

     ↑

201. Criminal Procedure Act 2009 (Vic) s 160(2)(a).

     ↑

202. Ibid s 160(2)(b).

     ↑

203. Ibid s 160(2)(c).

     ↑

204. Ibid s 160(2)(d).

     ↑

205. County Court of Victoria, Practice Note PNCR 2-2019: Criminal Division—Active Case Management, 2 December 2019, para 35.

     ↑

206. Ibid para 37.

     ↑

207. Ibid para 45.

     ↑

208. Ibid para 44.

     ↑

209. Consultation 31 (Supreme Court of Victoria). The Supreme Court (Criminal Procedure) Rules 2017, r 4.07(1) provide that the Judicial Registrar—Criminal Division may conduct a case conference at any time before trial.

     ↑

210. See County Court of Victoria, Practice Note PNCR 2-2019: Criminal Division—Active Case Management, 2 December 2019; County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019.

     ↑

211. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015 (12 July 2019), para 2.1.

     ↑

212. County Court of Victoria, Practice Note No 2 of 2019: Active Case Management System (Criminal Division Reform) 3 December 2019,

     para 22.

     ↑

213. This will be where the matter appears incapable of resolution; there are only straightforward pre-trial legal issues, if any; there is no outstanding disclosure; and the estimate trial length is reasonable and is agreed between the parties: County Court of Victoria, Practice Note No 2 of 2019: Active Case Management System (Criminal Division Reform) 3 December 2019, para35.

     ↑

214. County Court of Victoria, Practice Note No 2 of 2019: Active Case Management System (Criminal Division Reform), 3 December 2019,

     para 36.

     ↑

215. Ibid para 36.3.

     ↑

216. County Court of Victoria, Practice Note No 2 of 2019: Active Case Management System (Criminal Division Reform), 3 December 2019,

     paras 36.3.1-5.

     ↑

217. Ibid para 8.

     ↑

218. Ibid para 57.

     ↑

219. The defence must file and serve a ‘Notice that Legal Practitioner Acts’ on the day of the IDH. The practitioner who appeared at the committal must appear at the IDH, and ‘both parties must be fully familiar with the matter.’ The accused must also appear at the IDH, by video link if he or she is in custody: County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, paras 2.6–2.7, 2.10.

     ↑

220. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, para 2.11.

     ↑

221. Ibid para 3.1.

     ↑

222. Ibid paras 2.4, 3.2.

     ↑

223. Ibid para 3.4.

     ↑

224. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, para 3.6.

     ↑

225. Ibid para 3.7. Confidential communications are defined by section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

     ↑

226. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015,12 July 2019, para 3.8.

     ↑

227. Ibid para 3.12. The accused must appear at the IDH, by video link if he or she is in custody: County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, para 3.11.

     ↑

228. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015 12 July 2019, para 3.13

     ↑

229. Ibid para 3.14.

     ↑

230. Ibid para 4.1.

     ↑

231. Ibid para 4.8.

     ↑

232. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, para 4.10. If seeking to appear from any other Victorian court location, parties must contact the relevant circuit registry to confirm that a video link can be accommodated para 4.11. Leave is required to appear at a Circuit directions hearing from a non-Victorian court or interstate location para 4.12.

     ↑

233. County Court of Victoria, Criminal Division Practice Note PNCR 1-2015, 12 July 2019, paras 4.13-4.14.

     ↑

234. Ibid para 4.18.

     ↑

235. Supreme Court of Victoria, Practice Note SC CR 1 (First Revision): Case Management Procedure for Criminal Trials, 1 January 2019,

     paras 4.1, 4.7.

     ↑