6. Commencement of a criminal proceeding in the Magistrates' Court

6. Commencement of a criminal proceeding in the Magistrates' Court

(1) A criminal proceeding is commenced—

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

(b) if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or

(c) if a summons is issued under section 14, at the time the charge-sheet is signed.

Note A criminal proceeding against a child is commenced in the same manner in the Children's Court: section 528 of the Children, Youth and Families Act 2005.

(2) If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of sections 8(1) and 9(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.

(3) A charge-sheet must—

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

Note Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.

(4) The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.

As a consequence of the introduction of the Criminal Procedure Act 2009, various provisions of the Magistrates' Court Act 1989 are modified or repealed. Section 374 of the CPA will amend various provisions of the MCA. Those provisions will continue to exist but will now no longer apply to criminal proceedings.

Chapter 3 deals with Summary Procedure. Section 3 of the Act defines a summary hearing as a hearing conducted in accordance with Part 3.3. (A summary hearing is a summary contested hearing.)

Before a summary hearing happens, the Act provides for three types of preliminary hearing:

1. mention
2. summary case conference
3. contest-mention

The summary case conference is similar to a contest-mention: it tries to identify disputed issues, but is probably closer to the special mention in the Magistrates' Court Act 1989 Schedule 5, clause 3. (Pedantically, that provision only applies to committal hearings. It allows the Court to control its proceedings, and make sure the parties are on track, completing tasks and undertakings, and keeping to the timetable. The summary case conference gives summary courts a similar explicit statutory power for summary criminal proceedings.)

Commencing proceedings

There are two processes for commencing proceedings.

1. Traditional process

Issue a charge (similar to the current procedure in the Magistrates' Court Act 1989):

• file or sign a charge-sheet
• under s 39 an accused may request a full brief (defined in s 41), which must be served at least 14 days before contest-mention or, if there's no contest-mention, before the summary hearing
• mention hearing (s 53)
• a summary case conference may be held, but is not required under this process (s 54(3) & (4))
• if appropriate, contest-mention (s 55)

2. Alternative process

1. Notice to appear issued (s 21), directing the accused to appear at a venue of the Magistrates' Court at least 28 days after serving the notice
2. Under s 22, charge sheet must be filed within 14 days (or the notice to appear lapses)
3. A preliminary brief must be served within 7 days (s 24) after the day the charge-sheet is filed
4. A summary case conference must be held before:
   
   
   • the charge is adjourned for a contest-mention
   • the charge is adjourned for a summary-hearing
   • an accused can ask under s 39 for a full brief

A notice to appear does not compel an accused to attend the Magistrats' Court. If an accused person does not answer a notice to appear, section 25 permits the Court to issue a warrant to arrest, hear the charge in the accused's absence, or adjourn the proceeding. This provision operates exclusive to ss 80 and 81 when an accused fails to answer traditional summary process for summary and indictable offences. The warrant to arrest referred to in ss 25, 80 and 81 is found at s 359.