Victorian Consolidated Legislation

Magistrates' Court Act 1989 - SCHEDULE 2

Sections 41, 51, 54(6) SUMMARY CRIMINAL HEARINGS

1. Venue of Court



(1) A criminal proceeding is returnable at the proper venue of the Court,
except where otherwise provided by this or any other Act.

(2) If, before any evidence is given in support of the charge-

   (a)  the defendant objects to the venue of the Court; and

   (b)  the Court is satisfied, having regard to the convenience of the
        parties, that the proceeding should be transferred to another venue-

the Court may adjourn the proceeding to another venue of the Court.

(2A) If at any time, whether or not any evidence is given in support of the
charge and whether or not the defendant appears, the Court is satisfied that
the charge was filed at a venue of the Court other than the proper venue, the
Court must25-

   (a)  adjourn the proceeding to the proper venue; or

   (b)  if satisfied there has been an abuse of process, strike the proceeding
        out-

and may award costs against the informant.



(2B) Despite subclause (2A), where there is no objection by the defendant to
the hearing and determination of the proceeding at a venue other than the
proper venue, the Court may, at its discretion, hear and determine the
proceeding at that other venue26.

(3) A proceeding is not void because it was returnable or heard and determined
at a venue of the Court other than the proper venue.

1A. Pre-hearing disclosure27



(1) This clause does not apply if the informant serves a brief of evidence on
the defendant in accordance with section 37.

(2) The defendant may at least 10 days before the mention date (or, with the
leave of the Court, within any shorter period before that date) give notice in
writing to the informant that the defendant requires-

   (a)  copies of statements of witnesses (including expert witnesses)
        obtained by or on behalf of the informant, whether or not the
        informant intends to call them to give evidence at the hearing;

   (b)  written summaries of the substance of any evidence likely to be given,
        if called at the hearing, by persons who have not made statements but
        who have provided relevant information to the informant, whether or
        not the informant intends to call them to give evidence at the
        hearing;

   (c)  access to the exhibits to inspect them and, if practicable, copies or
        photographs of the exhibits;



   (d)  the names of all witnesses referred to in paragraph (a) and persons
        referred to in paragraph (b) and (if material to the defence case)
        also their addresses unless-

   (i)  the witness or person objects to the defendant being given his or her
        address; and

   (ii) the informant believes that there are reasonable grounds for refusing
        to give the defendant the address of that witness or person;

   (e)  copies of any documents setting out particulars of any prior
        convictions of, or findings of guilt made against, the defendant or
        any person whom the informant intends to call to give evidence at the
        hearing;

   (f)  particulars of any medical examinations of the defendant carried out
        on behalf of the informant.

(2A) If-

   (a)  the informant is a member of the police force or an officer of a
        prescribed agency; and

   (b)  the defendant's legal practitioner is authorised by the Secretary to
        access electronically the information and matters referred to in
        subclause (2); and

   (c)  it is practicable to transmit electronically the information and
        matters referred to in subclause (2)-

the informant must, subject to this clause, place on the prescribed database
as soon as practicable and as the information or matters become available to
the informant-

   (d)  all information and matters referred to in subclause (2); and

   (e)  a list of the exhibits proposed to be tendered.

(3) Subsection (2)(e) does not require the informant to give to the defendant
particulars of any prior conviction of, or finding of guilt made against, any
person whom the informant intends to call to give evidence at the hearing if
he or she is of the opinion that the prior conviction or finding of guilt is,
because of its character, irrelevant to the proceeding before the Court but
the informant must advise the defendant of the existence of any undisclosed
prior convictions or findings of guilt without setting out particulars of
them.

(4) The informant may refuse to comply with a requirement made by the
defendant under subclause (2) or to place on the database information or
matters required to be placed under subclause (2A) if he or she is of the
opinion that to comply would, or would be reasonably likely to-

   (a)  prejudice the investigation of a breach or possible breach of the law
        or prejudice the enforcement or proper administration of the law in a
        particular instance; or

   (b)  prejudice the fair trial of a person or the impartial adjudication of
        a particular case; or

   (c)  disclose, or enable a person to ascertain, the identity of a
        confidential source of information in relation to the enforcement or
        administration of the law; or

   (d)  disclose methods or procedures for preventing, detecting,
        investigating or dealing with matters arising out of breaches or
        evasions of the law the disclosure of which would, or would be
        reasonably likely to, prejudice the effectiveness of those methods or
        procedures; or

   (e)  endanger the lives or physical safety of persons engaged in, or in
        connection with, law enforcement or persons who have provided
        confidential information in relation to the enforcement or
        administration of the law; or

   (f)  endanger the life or physical safety of a witness referred to in
        subclause (2)(a) or of a person referred to in subclause (2)(b) or of
        a family member of such a witness or person as defined in the
        Family Violence Protection Act 2008.

(5) On or before the 5th day before the mention date or within such other
period as the Court may fix in granting leave to the defendant to give notice
under subclause (2) less than 10 days before the mention date, the informant
must comply with a requirement made by the defendant under that subclause or
serve on the defendant a written statement of the ground or grounds for
refusing to comply.

(5A) If the informant refuses to place on the database information or matters
required to be placed under subclause (2A) or to provide access to exhibits,
the informant must, without delay, serve on the defendant's legal practitioner
a written statement of the ground or grounds for refusing to comply.

(6) The Court may, on the application of the defendant, order the informant to
comply with a requirement made by the defendant under subclause (2) or to
place on the database information or matters required to be placed under
subclause (2A).

(7) A requirement made by the defendant under subclause (2) or a requirement
to place information or matters required to be placed under subclause (2A)
applies with respect to any document or other thing that comes into existence,
or event that takes place, after the making of the requirement if it would
have applied to it had it been in existence at, or taken place before, that
time and, in that case, the informant must, subject to this clause, comply
with the requirement within a reasonable time after the document or other
thing coming into existence or the event taking place.



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(9) The appropriate registrar must ensure that the defendant is given, as soon
as practicable after the commencement of the proceeding, a written notice
containing a summary of the provisions of this clause.

1B. Expert witness statement

Whether or not the informant serves a brief of evidence on the defendant in
accordance with section 37, the defendant must serve on the informant at least
7 days before the mention date (or, if the statement is not then in existence,
as soon as possible after it comes into existence) a copy of the statement of
any expert witness whom the defendant intends to call to give evidence at the
hearing.





2. Course of proceedings



(1) In this clause course of proceedings means the matters set out in
sections 397, 398, 28417 and 418 of the Crimes Act 1958, with any necessary
modifications.

(2) Subject to subclause (3), the course of proceedings is the same as that
followed in a criminal trial in the Supreme Court.

(3) Leave of the Court is necessary before the Court may be addressed on
evidence by or on behalf of the informant or the defendant, whether the
address is for the purpose of opening, or summing up, the evidence.

3. Mention system

The appropriate registrar may, on the application of the defendant-

   (a)  if the defendant is not on bail or in custody, adjourn the proceeding
        prior to or on the mention date or on the return date to a later date;
        and

   (b)  if the defendant is on bail, adjourn the proceeding on the mention
        date or return date to a later date and extend bail but not vary the
        conditions of bail or revoke bail.

3A. Contest mention hearing



(1) This clause applies to a proceeding for a summary offence or an indictable
offence that may be heard and determined summarily.

(2) The Court may, between the mention date and the day on which the charge is
due to be heard, from time to time on the application of a party or on its own
motion, conduct a contest mention hearing.





(3) At a contest mention hearing, the Court may-

   (a)  require the parties to provide an estimate of the time expected to be
        needed for the hearing of the charge;

   (b)  require the parties to advise as to the estimated number and the
        availability of witnesses for the hearing of the charge, not including
        the defendant as a witness, and whether any witnesses are from
        interstate or overseas;

   (c)  request each party to indicate the evidence it is proposed to adduce
        and to identify the issues in dispute;

   (d)  require the defendant to advise whether the defendant is legally
        represented and has funding for continued legal representation up to
        and including the hearing of the charge;

   (e)  require the parties to advise whether there are any particular
        requirements of, or facilities needed for, witnesses and interpreters;

   (f)  order a party to make, file in Court or serve (as the case requires)
        any written or oral material required by the Court for the purposes of
        the proceeding;

   (g)  allow a party to amend a document that has been prepared by or on
        behalf of that party for the purposes of the proceeding;

   (h)  if the Court considers that it is in the interests of justice to do
        so, dispense with or vary any requirement imposed on a party by or
        under section 37 or 37A or clause 1A or 1B of this Schedule;

        (i)    require or request a party to do anything else for the case
               management of the proceeding.

(4) The defendant in person must be present at the first contest mention
hearing and, except with the leave of the Court, at any subsequent contest
mention hearing.

4. Non-appearance of informant

If the informant does not appear on the hearing date, the Court may-

   (a)  dismiss the charge; or

   (b)  adjourn the proceeding on any terms that it thinks fit.

5. Non-appearance of defendant



(1) If-

   (a)  under subsection (2) or (3) of section 41 the Court proceeds to hear
        and determine the charge in the defendant's absence; and

   (b)  the informant had served a brief of evidence on the defendant in
        accordance with section 37-

the following are, subject to subclause (2), admissible as if their contents
were a record of evidence given orally;

   (c)  Any statement a copy of which has been served in the brief of
        evidence;

   (d)  Any exhibit or document referred to in a statement which is
        admissible.

(2) The Court may rule as inadmissible the whole or any part of a statement or
of any exhibit or document referred to in a statement.

(3) Subclause (1) does not limit the power of the Court to proceed to hear and
determine the charge in the defendant's absence under subsection (2) or (3) of
section 41 on the basis of evidence on oath given by or on behalf of the
informant if the informant had not served a brief of evidence on the defendant
in accordance with section 37.

6. Non-appearance of defendant-outline of evidence



(1) If-

   (a)  under section 41(2) or (3) the Court proceeds to hear and determine
        the charge in the defendant's absence; and

   (b)  the informant has served an outline of evidence on the defendant in
        accordance with section 37A not less than 14 days before the mention
        date; and

   (c)  the Court considers that the matters set out in the outline of
        evidence disclose the offence charged-

the following are admissible in evidence, despite the rule against hearsay-

   (d)  the outline of evidence referred to in section 37A(1);

   (e)  any exhibit referred to in the outline of evidence.

(2) Without limiting any other power conferred on the Court, if the Court
considers that the matters set out in an outline of evidence do not disclose
the offence charged, the Court may require the informant to provide additional
evidence.

(3) The additional evidence referred to in subsection (2) is inadmissible
unless-

   (a)  it is in the form of written statements that comply with section
        37A(3); and

   (b)  a copy of each statement has been served on the defendant not less
        than 14 days before the Court considers the additional evidence.

(4) The Court must reject a statement, or any part of a statement, tendered in
a proceeding if the statement or part is inadmissible because of this clause.

(5) The Court may rule as inadmissible the whole or any part of an outline of
evidence, a statement or an exhibit.

(6) If the Court finds a defendant guilty in the defendant's absence on the
basis of an outline of evidence-



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   (c)  the Court must not make an order for a fine exceeding 20 penalty units
        under Division 4 of Part 3 of the Sentencing Act 1991 and the total
        sum of orders for fines must not exceed in the aggregate 50 penalty
        units; and

   (d)  the total sum of orders made under Divisions 1 and 2 of Part 4 of the
        Sentencing Act 1991 for the payment of restitution or compensation
        must not exceed $2000.

Note Section 41(4) prevents the Court making a custodial order. Also, the
Court cannot make an order that requires the consent of the defendant to its
making, for example, a community-based order.

(7) If, at any time during the hearing, the Court considers that the charge,
if proved, is likely to result in an order prohibited by subclause (6), the
Court-

   (a)  must adjourn the proceeding to enable the defendant to appear or to be
        brought before the Court to answer to the charge; and

   (b)  may issue a warrant to arrest the defendant.

(8) Except as provided by section 90 of the Road Safety Act 1986, the Court
must not be informed of nor have regard to any prior convictions or findings
of guilt of the defendant.

(9) If the Court finds a charge against a person proven and makes a sentencing
order in their absence, the Court must give by post written notice to the
person, at the address on the register, of-

   (a)  the order of the Court; and

   (b)  their right to apply for a re-hearing of the charge.

(10) If a person is served with a notice under subclause (9) and applies under
section 93 for a re-hearing of the charge within 28 days after the date of
service of the notice, the Court must set aside the sentencing order and
re-hear the charge.

(11) This clause does not limit the power of the Court to proceed to hear and
determine the charge in the defendant's absence under section 41(2) or (3) on
the basis of evidence on oath given by or on behalf of the informant if the
informant had not served an outline of evidence on the defendant in accordance
with section 37A.

7. Non-appearance of defendant-Infringements Act 2006

Without limiting any other power of the Court, in the case of any lodgeable
infringement offence within the meaning of the Infringements Act 2006 in
respect of which an election to have the matter of the offence heard and
determined in Court under Part 2 or Part 4 of that Act has been made or an
order under section 72(1) of that Act has been made, if the defendant fails to
appear and the Court proceeds to hear and determine the charge in the
defendant's absence under section 41(2) or (3), the Court may hear and
determine the charge based on the prescribed information lodged under section
40(1)(a) or 71(1)(a) of that Act (as the case requires). __________________

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