The Magistrates' Court

The Magistrates' Court of Victoria hears and determines all summary offences and indictable offences that can be heard summarily, where the accused person was 18 or over at the time of committing the offence(s) or 18 or over at the time of the court case and, in the case of indictable offences triable summarily, consents to having their case heard summarily.

Go to http://www.magistratescourt.vic.gov.au/ for further information about the Magistrates' Court of Victoria.

Appearing before the court

A defendant can appear before a magistrate in person, or be represented by a barrister or solicitor.

If the person is unrepresented and has been charged with a criminal offence punishable by imprisonment the court must ask them if they have had the opportunity to obtain legal representation, and if they have not, the court may allow an adjournment so that they can seek legal representation.

Which court room?

If you are going to court for a court hearing of charges you are facing, you should arrive at court by 9.30 am. Whilst court starts sitting at 10.00 am it is unlikely that yours will be the first case to be dealt with. Most courts display a list which sets out in which court each particular case is to be heard. You may also be able to check the court lists by looking in the law section of the newspaper, on the website of the relevant court or by calling the Court registry. If there is no such list you should speak to the court registrar.

If you are pleading guilty to the charges and the matter is simple, your case is likely to be over by lunchtime. If you are pleading not guilty it is possible that the case may not finish until late in the afternoon, or take several days or weeks, depending on the seriousness of the matter.

Courtroom procedure

Whenever you speak to a magistrate or judge, or if they ask you a question, you're expected to stand up. Magistrates and Judges should be addressed as "Your Honour". You're expected to stand up when a magistrate or judge enters the court, but there's no need to bow, as lawyers do. Attend the court where your case is to be heard so you can become familiar with the people, procedure and surroundings of the courtroom.

In argument the prosecutor may quote previous court decisions, or "case law" (common law precedents set by judges, from cases involving similar issues). If you have access to these law reports, you can also use them in argument, but they are not essential. The most important thing is to have your case well prepared, and to be thoroughly familiar with the issues and the evidence.

Callovers or mentions

Cases often appear in the court's lists several times before there is a hearing, or before sentencing occurs. These occasions are known as "callovers" or "mentions" and are used to find out how you will plead, and how many hours or days will need to be allocated for a hearing.

Cases can go ahead on the "mention day" only if you are pleading guilty, as neither the arresting officer nor any prosecution witnesses will be attending court on the mention day. If you are pleading not guilty, the case will have to be adjourned (postponed) to a date when the court has time to hear it and all the witnesses are available.

You can also ask for your case to be adjourned from the "mention day" even if you want to plead guilty, to allow time for character references and pre-court reports to be obtained. It is useful sometimes to apply for an adjournment in order to ask the police in writing for all of the evidence they plan to reply on. This is essential in appraising the strength of the case against you.

If you are unprepared for your case it may be better to get your case adjourned. If it is a "mention day", you will be automatically entitled to at least one adjournment.

If you are in any doubt as to whether the hearing date is a "mention day" and whether you are on bail, you should telephone the court.

Bail

Generally, you will be on bail until your "mention day" and bail will be extended on this day don't fail to appear! If you do fail to appear, not only might you be convicted in your absence, your failing to appear will jeopardise your chances of getting bail in future. You are also liable to immediate arrest for the offence of breach of bail. On the other hand, your appearing in court to "meet bail" can be used in your favour, in future bail applications.

Some charges are issued by way of a summons; if you are not on bail, you may not need to appear in court if your case is going to be adjourned.

Pleas

Minor offences may be dealt with on any mention date where a guilty plea is entered but never plead guilty without considered and independent advice! If you are asked to plead, and plead not guilty, a date for the hearing will be arranged (the hearing may not be listed for months, even years in some cases). It is possible to change a plea of not guilty to guilty, later on; however, to change from guilty to not guilty (especially after sentencing) is almost impossible.

Proof

In a criminal hearing or trial, it is always up to the prosecution to prove the offence, and this must be proved to a standard called "beyond reasonable doubt". If a magistrate (or a jury in more serious cases) is convinced by you or your lawyer that a reasonable doubt regarding your guilt exists they will find you not guilty. In some cases there is a partially reversed onus of proof. For instance, if marijuana is found in your car or your bedroom, you must prove (but only on the "balance of probabilities") that you did not know it was there; otherwise it is legally assumed to be yours.

The central issue in a criminal trial is always whether or not the prosecution has proved its case beyond reasonable doubt. No-one has to prove their innocence. However, once a person has been found not guilty, the law presumes that person to be innocent, on the basis that all people who are not proven guilty must be presumed innocent. This principle is not always respected by police and the media, but it is the law and a fundamental right. If a person is found not guilty, he or she is free to leave the court unless they are in custody for other charges which have not been resolved.

Criminal Justice Diversion Program

The Criminal Justice Diversion Program provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that will benefit the offender, victim and the community as a whole. It is an opportunity to avoid a court hearing. It is necessary to plead guilty to the offence to access the program.

Should you be 17 or under, the Ropes Program is available to avoid a court hearing.

Always ask your lawyer or the magistrate if you are eligible for a diversion or Ropes program.

Go to http://www.magistratescourt.vic.gov.au for further information.

Hearings and trials

A hearing before a magistrate and a trial before a judge and jury (or a judge alone, if the accused person agrees) proceed in much the same way.

When the hearing begins, a formal plea may be taken, followed by an opening by the police or the state prosecutor. The prosecution evidence is then led, at the end of which you may argue that the prosecution has not produced sufficient evidence to make out the charge against you. If the prosecution has produced sufficient evidence, you may wish to (but need not) call defence evidence.

You may choose to give evidence, and thus be cross-examined by the prosecutor, or you may choose to "stand mute", which means that you say nothing and cannot be cross-examined. In Victoria, it is no longer possible to give "unsworn evidence", which meant that you could not be cross-examined on the evidence you gave. Remember, the defence does not have to prove a case, it just has to cut down or cast reasonable doubt on the prosecution case. (In practice this may mean substantial doubt.)

At the end of all the evidence, the prosecution addresses the court on their view of the evidence; then the defence lawyer or self-represented person does the same. In a hearing, the magistrate then gives a judgment. In a trial the judge sums up for the jury, which is then asked to decide whether the person is guilty or not guilty.

Rules of evidence

One of the most difficult aspects of a trial is the successful leading of evidence, and the questioning of witnesses. This area is governed by a large body of technical rules that will be quite daunting to anyone unfamiliar with running court cases. A brief explanation of some of the commonly encountered rules will be provided, but if it is necessary to represent yourself in a trial or hearing it is strongly advisable to speak to a lawyer for guidance on this area. The best general text on the Australian rules of evidence is J.A. Gobbo's Cross on Evidence (4th Australian edition).

There is a large body of precedent law that covers the way evidence can be led in trials and other court hearings. Three important features of the law of evidence will be described here: the rules on hearsay, the rules on opinion evidence and the Browne & Dunn rule:

1. The rule against hearsay generally excludes a witness saying what someone else said, or said they saw or heard. You can only ask your witness, in court, to give direct evidence of what they saw or heard or experienced directly of a particular incident. An exception to this rule allows evidence of hearing "admissions" to crimes. So, for instance, police are allowed to tell the courts they heard arrested suspects "confess" in the police station although there are procedural requirements which must be followed, such as tape recording interviews and giving correct warnings.
   
2. Opinion is generally not allowed to be given as evidence, unless it is by a person who is considered to be an expert in the relevant field. Generally witnesses cannot say what they thought, assumed, inferred or concluded about any incident. They must stick to what they observed.
   
3. The Browne & Dunn rule requires you (or the prosecution) to give an opposing witness a chance to respond to any contradictory evidence that you may later call. For instance, if you are going to say that a police officer hit you and that officer gives evidence, you have to put it to him and allow him to respond; if you do not the prosecution will be allowed to recall him after your evidence, to contradict you.

Finally, an important thing to keep in mind is that there exists at law a basic principle that individuals can only be prosecuted on evidence that is relevant to their alleged crime. Thus facts relating to a previous criminal record are not admissible. One of the major exceptions to this is that if the defendant attempts to use evidence of good character to show that it is unlikely that they did the alleged acts. In this case, by claiming good character you also allow the prosecution to raise bad character, ie any past convictions you may have, in response. If you didn't raise character, the magistrate would have to decide the question of guilt without knowing about these past convictions. Evidence of good character can still be led in regard to sentencing, as discussed below.

Examination and cross-examination

One of the more difficult aspects of self-representation is to understand the rules of evidence. You should take some advice on how to call evidence from your witnesses, as this is when the rules are most restrictive.

Leading questions

When you first question your witnesses, this is called examination in chief. Generally, you usually ask open questions that allow your witnesses to tell their version of events. You cannot suggest answers to your witnesses or lead your witness. Questions such as, 'Were you wearing a white baseball cap? will not be allowed because all the witness has to do is answer yes. The answer is already supplied in the question. It will be necessary to ask first, Were you wearing anything on your head at that time? and then ask what colour it was.

Cross-examination

Cross-examination is when you question the prosecution witnesses. Since they have already been questioned by the prosecution you are now allowed to ask leading questions. Generally speaking, cross-examination is a lot easier, but you should be aware that very few cases are actually decided on the basis of skilful cross examination (despite what Hollywood might say!). Also, remember that in cross-examining a witness, there is always the danger that you will give a prosecution witness the chance to say something they were not able to say, or forgot to say, in examination in chief and which may harm your case. The most important rule in cross-examination is - NEVER ASK A QUESTION OF A WITNESS THAT YOU DON'T KNOW THE ANSWER TO.

The best cross examination is one where an overall inference can be put together from the witness's answers, rather than one where the witness crumples in a heap in a witness box. It is very rare for witnesses, especially police witnesses, to trip themselves up in an obvious way. But a good cross-examination can paint a picture from their answers which supports your case.

Another related idea is that it is important to not ask too many questions, and to know when to stop asking questions. As tempting as it might be, never actually put the inference you have created in a question to the witness it will only give them a chance to explain their way out of it. As an example, if the witness has admitted that the street was very dark when they saw someone vandalising a shop, do not ask them how they managed to see the person. Most likely they will come up with a good explanation which you were not expecting. Once they have admitted it was very dark, that should be enough.

The other important thing to remember in cross-examination is to never shout or try to bully the witnesses it will only isolate the magistrate.

Subpoenas

These are documents that you can serve on any party to require that documents relevant to your court case to be produced to the court. Being before the court on a charge, therefore, allows you to use some of the authority of the court to force disclosure of evidence. For instance, you may wish to see a police officer's notebook, to check against their statement; or you may wish to see governmental records relating to an action you were involved in.

A lawyer will tell you how to fill out such a form, which must be stamped by a court registrar. There will usually be a court filing fee, which you will have to pay. The subpoena is required to be physically served on the party from whom evidence is required together with conduct money, ie sufficient money to pay for the witness's travel costs to court (usually $5.00).

People can also be summoned to appear in court to give evidence, through subpoenas; however it is risky to call a witness from whom you have no statement. Take care and take some advice, on how to draft subpoenas. If they are not precise enough, you may have wasted your time and money.