Criminal proceedings will commence when the police file charges with the Magistrates’ court. The question of how long a criminal matter will take before it reaches trial depends upon a number of things including what type of matter it is, the seriousness and complexity of the charges and the strategy adopted to respond to the charges. Beyond these matters COVID has also impacted on how long a case will be before the Court before it reaches a trial. In short, it has created unprecedented delays and uncertainty. Having noted that, experienced criminal lawyers in Melbourne who work daily in Victoria’s courts will be able to give you a better idea of how long your case is likely to take and the possibilities as to what the various outcomes may be once you provide them with instructions about specific aspects of your case.
Summary stream or Committal Stream?
All matters, no matter how serious, commence in the Magistrates’ Court in either the summary stream or the committal stream. Matters in the summary stream not only commence in the Magistrates’ Court but also are finalised in the Magistrates’ Court whereas matters in the committal stream will progress to either the Supreme or County Court. It follows that matters in the committal stream are generally more serious. Nevertheless both streams routinely deal with matters where the offences with which people are charged can and often do result in imprisonment. In short though matters listed in the committal stream have a more involved process such that they generally take longer to finish.
Summary Stream Matters
Matters listed in the summary stream that are contested and progress to a trial in the Magistrates’ Court (referred to as a contested hearing) generally involve three hearings – a mention, a contest mention and a contested hearing.
A mention hearing is the first time your matter is mentioned in Court. Generally, three things can happen at a mention hearing. First, if you do not have a defence and you accept that you have committed the offence/s with which you have been charged you can plead guilty and progress straight to your sentencing hearing. Second, in circumstances where you have a defence or do not accept some of the offences with which you have been charged, prior to Court you can engage in negotiations with the prosecution. This is called a summary case conference. If these negotiations are successful then your matter may finalise at the Mention Hearing with the prosecution withdrawing the charges before the Court or with you pleading guilty to the charges which remain before the Court following negotiations. Third, if, after negotiations are had, the prosecution will not withdraw some/all of the charges before the Court then your matter will progress to the next stage in the summary stream process – the contest mention.
Contest Mention Hearing
The contest mention hearing is the intermediate stage of a matter listed in the summary stream of the Magistrates’ Court. A matter is listed for contest mention where the parties are unable to agree on how the matter should resolve such that judicial intervention is sought to assist in an effort to resolve the matter. This may involve one of the parties seeking a Magistrates’ opinion as to the strength of the case before the Court or an accused person seeking an indication from the Magistrate as to the penalty that Magistrate would impose in the event a person decided to plead guilty to the charges before the Court. An indication as to the strength of the case or the penalty that will be imposed may lead to the matter resolving. For example, if the Magistrate provides an opinion that a case is weak, the prosecution may then decide to withdraw the charges before the Court. By way of further example, if a Magistrate provides an indication to an accused person that they will not sentence them to imprisonment if they plead guilty to a certain charge that the police will not withdraw, that person may then decide to plead guilty.
If no resolution is reached at this stage, the matter will be adjourned for a contested hearing.
A contested hearing is the final stage in the summary stream process. It is like a trial, however there is no jury, such that the Magistrate who presides over the contested hearing is charged with the dual responsibility of determining whether or not to acquit or convict a person who is contesting their matter and making decisions as to the law that applies to the matter.
A Magistrate will make this decision after hearing evidence from all witnesses and considering all exhibits which are tendered to the Court.
A person who is acquitted may make an application for costs at the conclusion of their contested hearing.
A person who is convicted will then have a sentencing hearing where the Magistrate decides what penalty to impose.
Indictable offences that are either not able to be dealt with in the summary stream of the Magistrates’ Court or are not dealt with in the summary stream because an accused person does not consent to summary jurisdiction or because a Magistrate determines a matter is too serious to progress in the summary stream will proceed in the committal stream of the Magistrates’ Court before progressing to a Court of higher jurisdiction.
There are a number of steps in the Committal Stream process which are set out below.
When a person is charged with an indictable offence the first step in the Court process is a filing hearing in the Magistrates’ Court. The purpose of the hearing is largely administrative in nature and principally to set down dates for the police to serve the brief evidence on the accused and the Office of Public Prosecutions (‘OPP’) and for the parties to return to Court for the next hearing of the matter, that is the committal mention hearing.
Committal Mention Hearing
Before the committal mention hearing both the accused and the prosecution will have been provided with the evidentiary material said to support the charges which the police have laid. Once that material has been reviewed each party will have a view on the matter and will discuss whether it is capable of resolution, that is, whether they are in agreement as to the charges which a person will plead guilty to and which charges will be withdrawn. In some instances, they may be in agreement that all charges should be withdrawn but it is rare such an agreement is reached at this stage of proceedings.
If an agreement is reached with the OPP regarding a plea to a certain charge then the matter will be adjourned to a plea in Supreme Court, County Court or even the Magistrates’ Court depending on the charge proceeding.
If there is a withdrawal of charges, then the matter concludes.
If there is no agreement or withdrawal of charges, then the proceeding will in most instances be adjourned to a contested committal hearing.
A committal hearing is held in the Magistrates Court. It involves the cross examination of witnesses. At the conclusion of a committal hearing a Magistrate has the power to discharge an accused person in circumstances where they form the view that there is insufficient evidence to support a conviction. It is rare for an accused person to be discharged in respect of all offences before the Court. In that setting, the cross examination at a committal hearing will often have a number of different purposes, such as to explore available defences, to clarify issues in dispute, to give an accused person a better understanding of the evidence or to assist the prosecution in better understanding the evidence .
At the conclusion of a committal hearing where an accused person is not discharged they will be committed to stand trial in either the Supreme or County Court depending on the nature of the charge.
Each Court has a number of pre-trial hearings before the Trial itself commences.
Trial Stage in the County or Supreme Court
Before a trial takes place there are often a number of pre-trial hearings, the purpose of which are generally to try and resolve a matter or to narrow any issues which are in dispute. Pre-trial hearings which may take place before a trial include mention hearings, direction hearings, pre-trial cross examination hearings and pre-trial arguments.
The trial proper will commence when a jury has been selected. A jury is charged with the responsibility of determining the facts, that is, they will decide whether or not to convict or acquit an accused person.
Once a jury is selected, both the prosecution and the defence will open their cases, following which the prosecution will call their witnesses. After the prosecution has called all their witnesses an accused person may call witnesses and may give evidence but they do not have to do either. Once all witnesses have been called, each party will close their case and then the presiding Judge will charge the jury. A charge includes directions to the jury about the law. At the conclusion of the charge a jury will then consider its verdict.
If a person is acquitted by the jury after it has considered its verdict that will be the end of the process.
If a person is convicted then the jury will be discharged and the judge will preside over a sentencing hearing to determine what penalty the convicted person should receive.
But how long will it take?
Prior to the impact of COVID on the criminal justice system and putting matters which are appealed to once side a matter being contested in the summary stream of the Magistrates Court would take about 12 months to progress to a contested hearing and a matter in the committal stream would take about 18-24 months to progress to a trial in the Supreme or County Court. It should be added that depending on what type of case your matter concerns and where it is heard these estimates vary. In any event having regard to the delays caused by the pandemic, cases may now be before the Court for years before they reach a contested hearing or trial.
If you have any questions about the processes involved with your case, contact Stary Norton Halphen’s criminal lawyers in Melbourne.