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The mention date

If you are charged with a less serious offence (summary offences) or certain indictable (serious) offences that are capable of being heard in the Magistrates' Court, the first court date will be a mention.

If you are on bail, you mustattend court on each day that your matter is listed, even if it is only to be adjourned to a later date. If you are on summons, your lawyer may arrange for you not to have to attend court on days where your matter is to be adjourned.

If you or your lawyer has obtained the brief of evidence prior to the mention hearing and it is clear that the charges which have been laid against you are supported by the evidence, your matter may be able to be dealt with on that day as a plea of guilty. This is where the defence lawyer will make a plea in mitigation, putting before the magistrate any matters on your behalf, seeking to mitigate the harshness of any sentence to be imposed.

Your case can be adjourned for a contest mention, at which arguments can be tested and the magistrate may indicate what the likely outcome will be. This may convince you to plead guilty, or convince the prosecutor to drop the charges. The ruling is not binding and a not-guilty plea will be heard at a later date, in a full trial with witnesses. All charges where a please of not guilty is entered will first go through a contest mention.

On sentencing, a magistrate will take a number of factors into consideration, including your personal circumstances, the circumstances of the offending, any prior court appearances, references and the impact on any victim. The magistrate may also take into account a plea of guilty as evidence of remorse and this will attract a discount on sentencing.

However, it is often the case that the police will have laid a number of charges which are unsustainable, or which are duplicitous. (This is sometimes known as a "hamburger with the lot".)

For example, in the situation of a demonstration where property was damaged and some physical violence occurred, the police may lay a range of charges including intentionally causing injury, recklessly causing injury, assault, criminal damage, hinder police, refuse to obey a police direction, resist arrest; intentionally causing injury, recklessly causing injury and assault will be alternative charges relating to the one incident.

If you or your lawyer feels that some charges are unsustainable or duplicitous, your matter may be adjourned for a contest mention hearing. At this hearing, negotiations are entered into with the police informant, the police prosecutor and the defence. If the prosecution agrees to withdraw some charges and the matter can be resolved, it may proceed on that day as a plea of guilty before the magistrate.

See Pleading guilty or not guilty?

If an agreement cannot be reached, the matter is taken into the court and usually the defence lawyer will indicate to the magistrate the issues that are in dispute. In some instances, the magistrate will provide a sentence indication advice as to the penalty that would be imposed if a plea of guilty was entered into before that magistrate.

If you want to plead not guilty and contest the charges (which is your right), the matter will then be adjourned for a contested hearing. This hearing is held before a magistrate only. All witnesses are called and cross-examined. The magistrate is the judge of the facts and the law.

If the magistrate is not persuaded of guilt beyond reasonable doubt the charges will be dismissed.

It is possible to apply for costs against Victoria Police once charges are dismissed. Whether costs are granted depends on a number of factors, including the way in which the defence case was run. The police prosecution may ask for costs to be awarded against you as well if you are found guilty of the charges.

If the magistrate finds you guilty of some or all of the charges, a plea in mitigation of sentencing will be made. One can appeal a decision of a magistrate if the appeal is lodged within 28 days. The matter can then be heard in the County Court.

If you are charged with a more serious indictable offence, your matter will be in what is referred to as the committal stream and will ultimately have to be dealt with either by trial or plea of guilty in either the County Court or the Supreme Court.

If your matter is in the committal stream, it is very important that you receive legal advice as soon as possible.