Is your adjournment request "good"?

The folks responsible for the government's end of the Criminal Procedure Act have released a Best Practice Guide to the new procedures:

Summary case conferencing is now available at all metropolitan Magistrates’ Courts (except Melbourne where it will be introduced on 15 March) as well as Ballarat and Geelong. It is one of the new features of the Criminal Procedure Act 2009. Other significant features include the Notice to Appear and preliminary briefs.

The Best Practice Guide was commissioned by the Summary Procedure Steering Group which oversees the implementation and roll out of the changes. It aims to promote common understanding of the legislative framework and provide best practice advice. It is important for criminal law practitioners to appreciate the impact that the changes may have on their practice.

It's hardly comprehensive, but offers the most detail so far of what the powers-that-be have in mind for the summary process. One of the key points seems to be an expectation that the Magistrates' Court will refuse many adjournment applications which would previously have been granted as a matter of course (at page 7):

The Good Adjournment

In Notice to Appear cases a spare copy of the preliminary brief will be available at court on the return date. Therefore, a case can no longer be adjourned because the accused or their legal practitioner does not have a copy of the brief.

It also means that where a summary case conference could not be conducted before court, it can now be conducted at court on the return date. The idea that an accused is entitled to a couple of initial adjournments without question will be a thing of the past. The accused will no longer automatically obtain an adjournment at the counter.

Generally, adjournments should only occur to advance the progress of the case. Good adjournments will be for:

• a plea hearing

• to obtain further disclosure

• to obtain the full brief

• contest mention

• contested hearing.

The Magistrates' Court of Victoria Listing Protocols (updated in January) don't offer much more explanation of this, although they do seem to suggest that adjournments may be shorter than previously granted:

Listing Timeframes

The Court aims to list criminal cases in accordance with the following timeframes:

* Return Date to further mention hearing: 2-4 weeks

* Return Date/second mention hearing to plea: 2-4 weeks

* Return Date to contest mention hearing: 4-8 weeks

* Return Date to hearing (less than 1 Day with Case Conference, if appropriate) but no contest mention: 6-10 weeks

* From contest mention hearing to hearing: 10-14 weeks

The above timeframes do not apply to cases involving persons in custody.

Note: Return Date is the first date on which the proceeding is listed before the Court Proceedings may be adjourned at the discretion of the court. There is no right to an "automatic" adjournment on the first return of a case. One of the case management objectives of the court is to reduce delay.

None of these guidelines are referred to by the Act. How strictly they will be adhered to remains to be seen. It seems likely that, until funding issues for counsel are resolved, the new procedures may prove difficult to comply with.

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87. Limitations on sentencing in absence of accused

87. Limitations on sentencing in absence of accused

(1) If the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused and finds the accused guilty, the court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991.

(2) If the Magistrates' Court finds an accused guilty in the absence of the accused on the basis of a preliminary brief-

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

(b) 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

In addition to this section, the court cannot make an order that requires the consent of the accused to its making, for example, a community-based order.

(3) If, at any time during the hearing, the Magistrates' Court considers that the charge, if proven, is likely to result in an order prohibited by
subsection (1) or (2) or an order that requires the consent of the accused,
the court-

(a) must adjourn the proceeding to enable the accused to attend or to be brought before the court to answer to the charge; and

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

(4) If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person on the register kept under section 18 of the Magistrates' Court Act 1989, of-

(a) the order of the court; and

(b) their right to apply for a rehearing of the charge.

Note

Part 3.4 provides for a rehearing in certain circumstances. In particular, section 94 provides for automatic rehearing in certain cases.

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84. Admissibility of evidence in absence of accused where preliminary brief served

84. Admissibility of evidence in absence of accused where preliminary brief served

(1) If-

(a) under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and

(b) the informant has served a preliminary brief on the accused in accordance with Division 2 of Part 3.2 at least 14 days before the date of the hearing under paragraph (a); and

(c) the Magistrates' Court considers that the matters set out in the preliminary brief disclose the offence charged-

the following are, subject to subsections (4) and (5), admissible in evidence, despite the rule against hearsay-

(d) the informant's statement in the preliminary brief;

(e) any exhibit referred to in the informant's statement.

(2) Without limiting any other power conferred on the Magistrates' Court, if the court considers that the matters set out in a preliminary brief 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 38; and

(b) a copy of each statement has been served on the accused at least 14 days before the Magistrates' Court considers the additional evidence.

(4) The Magistrates' Court may rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.

(5) The criminal record of the accused or a statement that the accused has no previous convictions, when served in a preliminary brief, is only admissible for the purpose of sentencing in accordance with section 86.

(6) This section does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a preliminary brief on the accused.

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80. Non-appearance of accused charged with summary offence

80. Non-appearance of accused charged with summary offence

(1) If an accused does not appear in answer to a summons to answer to a charge for a summary offence, the Magistrates' Court may-

(a) if the summons was served in accordance with section 394 (ordinary service), direct that the accused be served personally with the summons; or

(b) issue a warrant to arrest the accused; or

(c) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or

(d) adjourn the proceeding on any terms that it considers appropriate.

Note

Section 328 sets out who may appear on behalf of an accused.

(2) If an accused has been charged with a summary offence and fails to attend in answer to bail, the Magistrates' Court may-

(a) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or

(b) adjourn the proceeding on any terms that it considers appropriate-

without prejudice to any right of action arising out of the breach of the bail undertaking.

(3) If the Magistrates' Court proceeds to hear and determine a charge under
subsection (1)(c) or (2)(a), the court may dispense with or vary any requirement imposed by or under this Part.

Note

See section 25 for consequences of failing to appear in answer to a notice to appear.

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79. Non-appearance of informant

79. Non-appearance of informant

If the informant in a criminal proceeding does not appear on the date on which the proceeding is listed for hearing, the Magistrates' Court may-

(a) dismiss the charge; or

(b) adjourn the proceeding on any terms that it considers appropriate.

Note

Section 328 sets out who may appear on behalf of an informant.

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58. Order for separate hearing

58. Order for separate hearing

(1) If a charge-sheet contains more than one charge, the Magistrates' Court may order that any one or more of the charges be heard separately.

(2) If a charge-sheet names more than one accused, the Magistrates' Court may order that charges against a specified accused be heard separately.

(3) The Magistrates' Court may make an order under subsection (1) or (2) if the court considers that-

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same charge-sheet; or

(b) a hearing with co-accused would prejudice the fair hearing of the charge against the accused; or

(c) for any other reason it is appropriate to do so.

(4) The Magistrates' Court may make an order under subsection (1) or (2)before or during the hearing.

(5) If the Magistrates' Court makes an order under subsection (1) or (2), the prosecutor may elect which charge is to be heard first.

(6) The procedure on the separate hearing of a charge is the same in all respects as if the charge had been set out in a separate charge-sheet.

(7) If the Magistrates' Court makes an order for a separate hearing under subsection (1) or (2), the court may make any order for or in relation to the bail of the accused that the court considers appropriate.

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53. Mention hearing

53. Mention hearing

At a mention hearing, the Magistrates' Court may-

(a) if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;

(b) proceed immediately to hear and determine the charge;

(c) fix a date for a contest mention hearing;

(d) fix a date for a summary hearing of the charge;

(e) make any other order or give any direction that the court considers appropriate.

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51. Alibi evidence

51. Alibi evidence

(1) This section applies to an accused on a summary hearing, if the accused is represented by a legal practitioner.

(2) An accused must not, without leave of the court-

(a) give evidence personally; or

(b) adduce evidence from another witness-

in support of an alibi unless the accused has given notice of alibi within the period referred to in subsection (3).

(3) A notice of alibi is given by serving the notice on the prosecutor or the informant-

(a) at least 7 days before the day on which the contest mention hearing is to be held; or

(b) if there is no contest mention hearing, at least 7 days before the summary hearing; or

(c) if the notice is not then in existence, as soon as possible after it comes into existence.

(4) A notice of alibi must be served in accordance with section 392.

(5) A notice of alibi must contain-

(a) particulars as to time and place of the alibi; and

(b) the name and last known address of any witness to the alibi; and

(c) if the name and address of a witness are not known, any information which might be of material assistance in finding the witness.

(6) If the name and address of a witness are not included in a notice of
alibi, the accused must not call that person to give evidence in support of
the alibi unless the court is satisfied that the accused took reasonable steps to ensure that the name and address would be ascertained.

(7) If the accused is notified by the informant that a witness named or
referred to in a notice of alibi has not been traced, the accused must give
written notice to the informant, without delay, of any further information
which might be of material assistance in finding the witness.

(8) The court must not refuse leave under subsection (2) if it appears to the court that the accused was not informed of the requirements of this section.

(9) If-

(a) an accused gives notice of alibi under this section; and

(b) the prosecutor requests an adjournment-

the court must grant an adjournment for a period that appears to the court to be necessary to enable investigation of the alibi unless it appears that to do so would prejudice the proper presentation of the case of the accused.

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33. Unrepresented accused who requires legal advice

33. Unrepresented accused who requires legal advice

If-

(a) an accused is charged with an offence punishable by imprisonment; and

(b) the accused is unrepresented on the return date-

the court must-

(c) ask the accused whether the accused has sought legal advice; and

(d) if satisfied that the accused has not had a reasonable opportunity to
obtain legal advice, grant an adjournment if so requested by the accused; and

(e) inform the accused that the accused has the right, if eligible, to
legal aid under the Legal Aid Act 1978.

In Dietrich v R (1992) 177 CLR 292, the High Court held that the refusal of an adjournment to allow an accused to seek a legal advice amounted to a miscarriage of justice where the offence alleged was considered "serious". This term was not defined. More recently, in Hakimi v Legal Aid Commission (ACT) v The ACT (Intervener) [2009] ACTSC 48 the application of an accused to order Legal Aid to act for him or stay charges was rejected. However the position in Victoria may be different, due to the operation of s.25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006.

Note that the right to counsel is unlikely to extend to the right to an unlimited right of choice of practitioner: R v Williams [2007] VSC 2.

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31. Court may change place of hearing

31. Court may change place of hearing

If the Magistrates' Court considers that-

(a) a fair hearing in a criminal proceeding cannot otherwise be had; or

(b) for any other reason it is appropriate to do so-

the court may order that the hearing be held at another place or venue of the court that the court considers appropriate.

In DPP v Towle (Ruling No 1) VSC 551, Cummings J discussed the competing considerations in play regarding hearing an emotive trial in proximity to the location of the alleged offences.

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20. Adjournment of proceeding on application of accused

20. Adjournment of proceeding on application of accused

On the application of the accused, the appropriate registrar may-

(a) if the accused is not on bail or in custody, before or on the return date or on the date to which the proceeding is adjourned, adjourn the proceeding to a later date;

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

Note

See also section 331 as to the court's general power of adjournment.

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19. Extension of return date if summons not served

19. Extension of return date if summons not served

(1) If the informant has not served a summons to answer to a charge, the appropriate registrar may extend a return date specified in the summons without cause on one occasion on the application of the informant-

(a) before the return date; or

(b) within 28 days after the return date.

(2) The appropriate registrar may extend a return date on a subsequent occasion on the application of the informant-

(a) before the current return date; or

(b) within 28 days after the current return date-

if the registrar is satisfied by sworn evidence, whether oral or by affidavit, that reasonable efforts have been made to serve the summons.

Note

See also section 331 as to the court's general power of adjournment.

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