The Committal Stream in Victoria
Committal proceedings are a legal process whereby the Magistrates’ Court considers the evidence against the accused before ordering them to face trial in a higher court for a serious offence. This area of criminal law is highly complex and successfully navigating the committal stream requires utmost legal expertise.
Committal Proceedings in Victoria
In Victoria, some crimes are considered too serious to be heard in the Magistrates’ Court and must progress to either the County Court or the Supreme Court. However, the Magistrates’ Court must first consider the evidence against the accused before ordering them to face trial in one of the higher courts. This process is known as ‘committal proceedings’ or the ‘committal stream’.
An offence is considered ‘serious’ and proceeds through the committal stream if it is an indictable offence that is not triable summarily.
Each stage of the committal stream is explained below.
It is important that you obtain legal advice as soon as possible after being charged with an offence. An experienced criminal lawyer can consider the merits of your case and advise you as to whether you should plead guilty or not guilty.
If you have been charged with an offence, please contact our expert defence team at Sher Criminal Lawyers immediately for specialist legal advice and representation.
Committal proceedings are commenced with a filing hearing.
During the filing hearing, the Magistrates’ Court will set a timetable for the exchange of evidence and information between the prosecution and the defence. In particular, the Magistrate will set two important dates during the filing hearing:
- A date by which the informant (the police officer who laid the charges) must provide the full hand-up brief to the defendant’s lawyer. The hand-up brief contains all the evidence that the prosecution will rely on to prove their case. This date is usually 6 weeks after the filing hearing.
- A date for the committal mention, the next hearing in the process during which the defence will have to advise the Magistrate and the prosecution how the matter will be proceeding. The committal mention date is usually 6 weeks after the due date of the hand-up brief.
If the defence has any preliminary concerns, the filing hearing is a good opportunity to raise these issues with the prosecution or the Magistrate. This is the first opportunity that the defendant’s lawyer will have to discuss the matter with the prosecution and the informant. Doing so can help the defence to understand the strength of the prosecutions case and the evidence that they are relying upon.
Further, if the accused is being held in custody, the filing hearing might be the first opportunity that they will have to appear before a court and make a bail application. If the accused is already on bail, they may wish to try and negotiate their bail conditions during the hearing.
If the accused has been remanded into custody or has been granted bail, a filing hearing must occur within 7 days of the charges being filed with the Court. Alternatively, if the accused is on summons for the charges, a filing hearing must occur within 28 days of the charge being filed with the Court (s102 of the Criminal Procedure Act 2009 [CPA] (Vic)). Generally, the accused is expected to attend the filing hearing.
The committal mention is the second stage in the committal stream following the filing hearing. It is a Court hearing during which the defence and the prosecution can discuss areas of disagreement and inform the Magistrate as to how the matter will be proceeding.
The defence must file a Form 32 with the Court and serve a copy on the prosecution at least 7 days prior to the committal mention. By this time, the legal representative for the accused should have considered the prosecution’s brief of evidence, provided the accused with legal advice, and received instructions from the accused as to how to proceed. As such, Form 32 should:
- Indicate to the Court how the accused intends to proceed in the matter (That is, does the accused wish to plead guilty or not guilty at this stage);
- Outline any witnesses that the defence wishes to call at the committal hearing; and/or
- Outline evidence and material that the defence wishes to obtain from the prosecution (s118 CPA).
On the day of the committal mention, the accused’s lawyer will appear before the Court and advocate the accused’s position to the Magistrate. If there are still areas of disagreement between the defence and the prosecution at this stage in the matter, these will be discussed during the committal mention before the Magistrate.
Depending on how the accused wishes to proceed in the matter, the committal mention may result in one of several different outcomes:
- If the accused pleads not guilty and seeks permission (called “leave”) to cross-examine the complainant and/or relevant witnesses, the Magistrate will determine whether leave is granted and fix a date for a contested committal hearing (please see below).
- If the accused pleads not guilty but does not seek leave to cross-examine witnesses, the Magistrate may directly adjourn the matter for trial in the County or Supreme Court.
- If the accused pleads guilty, the Magistrate may order that the matter be adjourned for a guilty plea in the County or Supreme Court.
- If the defence applies to have the matter heard summarily in the Magistrates’ Court, the matter may be adjourned for a summary jurisdiction application to be heard at a further committal mention.
- If the matter involves an alleged sex crime in relation to a child or cognitively impaired complainant, the matter may be adjourned directly to the County Court.
- If there are issues that cannot be resolved on the day of the committal mention and further negotiation is required, the matter may be adjourned for a further committal mention or committal case conference.
Committal Case Conference
A committal case conference is a discussion between the prosecution, the defence and the Magistrate for the purpose of managing the progression of the case. Topics discussed might include pre-trial disclosure, the issues in dispute and the prospects of resolving the charges. Most importantly, the defence can make a request during the case conference that the prosecution identify and provide any information, document or thing that will assist the defence to understand the evidence available to the prosecution.
A committal case conference should occur on the same day as the committal mention if there are issues in dispute between the parties. Anything said or done during the committal case conference is inadmissible as evidence in court unless all parties agree otherwise (s127 CPA). This rule helps to resolve points of difference between the parties in a timely manner.
Contested Committal Hearing
The contested committal hearing is the third stage in the committal stream following the committal mention. During the hearing, the Magistrate will decide whether the matter should proceed to trial in a higher court. The Magistrate will make this decision by determining whether there is sufficient evidence to support convicting the accused for the offence/s charged.
If leave has been granted at the committal mention, the prosecution will call witnesses to be cross-examined by the defence. That is, the accused’s legal representative is given the opportunity to cross-examine the complainant and/or witnesses relied upon by the prosecution to prove its case. Further, the defence can question the police informant about their investigation. Other evidence may be tendered to the court in written form. The defence also has the right to call witnesses to give evidence. At the conclusion of the hearing, the defence may make a submission to the Court in relation to the strength of the evidence and whether the accused should not be committed for trial.
The contested committal hearing is an important procedural step because it allows the defence to identify any inconsistencies in the evidence and thus the prosecution’s case. Any inconsistencies in the prosecution’s case may greatly assist the defence’s argument if the matter proceeds to a jury trial. In some cases, if the inconsistencies are blatant, this may even cause the prosecution to withdraw charges. However, the threshold for the committal test is low and in the majority of cases the accused is committed to stand trial.
If the Magistrate concludes that a properly directed jury could find the accused guilty based on the evidence, the accused will be committed to stand trial before a jury in the County or Supreme Court. In this case, the accused will be asked at the end of the hearing whether they plead guilty or not guilty. Alternatively, if the Magistrate decides that there is not sufficient evidence to support a conviction, the charges will be dismissed.
It should also be noted that the Magistrate may offer a summary hearing and/or determine a summary hearing during the contested committal hearing (s30 CPA). Should the accused consent, the Court may use the witness testimony and all other evidence tendered during the committal hearing to determine the matter summarily.
What to Do Before Attending Court
If you have been charged with a serious offence, it is crucial that you seek the assistance of an experienced criminal lawyer as soon as possible. Committal procedure is highly complex and demands the utmost legal expertise. Our extensively experienced team at Sher Criminal Lawyers will help you to secure the best possible outcome in your matter by applying our specialist knowledge of the criminal law and the Victorian justice system.
Please contact us immediately if you require legal advice and representation in regard to a criminal matter. We are available 24/7 and offer free consultations by way of Zoom, FaceTime or in person at our Melbourne and Moorabbin offices.