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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57. Joint hearing of charges on separate charge-sheets

57. Joint hearing of charges on separate charge-sheets

On the application of the prosecutor or the accused, the Magistrates' Court may order that any number of charges in separate charge-sheets be heard together.

On a plea of guilty to all charges that are proceeding, this is typically referred as a consolidated plea.

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56. Multiple charges on single charge-sheet or multiple accused named on single charge-sheet

56. Multiple charges on single charge-sheet or multiple accused named on single charge-sheet

(1) If a charge-sheet contains more than one charge, the charges must be heard together unless an order is made under section 58.

(2) If a charge-sheet names more than one accused, whether in the same charge or separate charges, the charge or charges against all accused must be heard together unless an order is made under section 58.

(3) A separate charge-sheet must be filed against each accused.

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Accused entitled to copy of charge-sheet and particulars

32. Accused entitled to copy of charge-sheet and particulars

(1) An accused is entitled to receive free of charge a copy of the charge-sheet from the informant or the appropriate registrar.

(2) An accused is entitled to receive from the informant reasonable particulars of the charge.

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18. Informant must nominate address etc. for service of documents

18. Informant must nominate address etc. for service of documents

(1) An informant must nominate in writing a business address, email address, if any, and fax number for service on the informant of documents in relation to a charge.

(2) A nomination under subsection (1) may be included on a charge-sheet or any other document served with a charge-sheet.

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15. Contents of summons

15. Contents of summons

(1) A summons to answer to a charge must direct the accused to appear at the venue of the Magistrates' Court referred to in section 11 on a specified date and at a specified time to answer the charge.

(2) A summons to answer to a charge for an indictable offence that is to be
served on a corporate accused must state that, if the accused does not appear in answer to the summons, the Magistrates' Court may proceed-

(a) in the case of an indictable offence that may be heard and determined summarily, to hear and determine the charge in the absence of the accused in accordance with Division 10 of Part 3.3; or

(b)in any case, to conduct a committal proceeding in the absence of the
accused in accordance with Chapter 4.

Notes 1

1. See sections 80, 81 and 82 for consequences of failing to appear in answer to a summons.

2. Section 28(1) sets out the indictable offences that may be heard and determined summarily.

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14. Police or public official may issue summons

14. Police or public official may issue summons

(1) Without limiting the power of a registrar of the Magistrates' Court in any way-

(a) a member of the police force; or

(b) a public official acting in the performance of his or her duty whether the power to commence the proceeding is conferred on him or her by or under an Act or at common law)-

may, after signing a charge-sheet containing a charge, issue a summons to
answer to the charge.

(2) If a member of the police force or a public official issues a summons
under subsection (1), he or she must file the charge-sheet and summons with
the appropriate registrar within 7 days after signing the charge-sheet.

(3) If it appears to the Magistrates' Court that subsection (2) has not been complied with in relation to a proceeding, the court may strike out the charge.

Note

Section 401(3) allows the court to award costs if a charge is struck out.

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13. Summons or warrant to be accompanied by charge-sheet and notice when served

13 Summons or warrant to be accompanied by charge-sheet and notice when served

A summons to answer to a charge issued under section 12 or 14 or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied by—

(a) a copy of the charge-sheet; and
(b) a notice, in the form prescribed by the rules of court, containing—

(i) if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and
(ii) if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and
(iii) advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv) details of how to contact Victoria Legal Aid.

This section was amended by s 4 of Criminal Procedure Amendment (Consequential And Transitional Provisions) Act 2009.

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10. Listing of matter for mention hearing or filing hearing in the Magistrates' Court

10. Listing of matter for mention hearing or filing hearing in the Magistrates' Court

(1) If a charge-sheet contains a charge for a summary offence, the proceeding must be listed for a mention hearing.

(2) Subject to subsection (3), if a charge-sheet contains a charge for an
indictable offence that may be heard and determined summarily, the proceeding may be listed for a mention hearing or a filing hearing, having regard to any request for a committal proceeding included on the charge-sheet.

(3) If a notice to appear is served under section 21 and a charge-sheet is filed in accordance with section 22, the proceeding must be listed for a mention hearing on the date specified in the notice to appear.

(4) Despite subsections (1) and (2), if a charge-sheet contains a charge for an indictable offence that is not an indictable offence that may be heard and determined summarily, the proceeding must be listed for a filing hearing.

Notes

1. A mention hearing is the first hearing for a charge that will be heard and determined summarily.

2. A filing hearing is the first stage in a committal proceeding under Chapter 4.

3. Section 28(1) sets out the indictable offences that may be heard and determined summarily.

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9. Errors etc. in charge-sheet

9. Errors etc. in charge-sheet

(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.

(2) A charge on a charge-sheet is not invalid by reason only of-

(a) omitting to state the time at which the offence was committed unless
time is an essential element of the offence; or

(b) incorrectly stating the time at which the offence was committed; or

(c) stating the offence to have been committed on an impossible day or on
a day that never happened.

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8. Order for amendment of charge-sheet

8. Order for amendment of charge-sheet

(1) The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.

(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.

(4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if-

(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and

(b) the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.

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Schedule 1

Sections 6(3), 159(3) CHARGES ON A CHARGE-SHEET OR INDICTMENT

1. Statement of offence

A charge must-

(a) state the offence that the accused is alleged to have committed; and

(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.

2. Statement of particulars

(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.

(2) If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.

3. Statutory offence

(1) In this clause-

statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1(a), a statement of a statutory offence is
sufficient if it-

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating it, or in similar words.

(3) If a statutory offence states-

the offence to be committed in alternative ways; or

(b) any element or part of the offence in the alternative-

a charge may state the commission of the offence or the element or part of the offence in the alternative.

4. Exceptions, exemptions etc.

Any exception, exemption, proviso, excuse or qualification need not be
specified or negatived in a charge.

5. Joinder of charges

(1) A charge-sheet or indictment may contain charges for related offences,
whether against the same accused or different accused.

(2) If more than one offence is charged in a charge-sheet or indictment, the particulars of each offence charged must be set out in a separate,
consecutively numbered paragraph.

6. Charge against multiple accused

If an offence is alleged against more than one accused, regardless of their
degree of participation in the offence, an indictment or charge-sheet may name each of those accused in the charge for the offence.

7. Descriptions generally

Subject to any other provision of this Schedule, if it is necessary to
describe anything in a charge, it is sufficient to describe the thing in
ordinary language in a manner that indicates with reasonable clarity the thing referred to.

8. Description of persons

(1) The description or designation in a charge of a person must be reasonably sufficient to identify the person.

(2) If it is impracticable to comply with subclause (1)-

(a) a description or designation must be given that is reasonably
practicable in the circumstances; or

(b) the person may be described as "a person unknown".

9. Description of document

If it is necessary to refer to a document or instrument in a charge, it is
sufficient to describe it by any name by which it is usually known or by its substance, without setting out a copy of it.

10. Description of property

(1) The description of property in a charge must-

(a) be in ordinary language; and

(b) indicate the property with reasonable clarity.

(2) If a description of property complies with subclause (1), it is not
necessary to name the owner of the property or the value of the property,
unless that information is required to describe an offence which depends on a special ownership of property or a special value of property.

(3) If property is vested in more than one person and the owners of the
property are referred to in a charge, it is sufficient to describe the owners of the property-

(a) by naming one of those persons followed by the words "with others"; or

(b) if the owners are a body of persons with a collective name, by using
the collective name alone.

11. Statement of intent to deceive, injure or defraud

In stating an intent to deceive, injure or defraud, it is not necessary to
state an intent to deceive, injure or defraud any particular person if the
statute creating the offence does not make an intent to deceive, injure or
defraud a particular person an element of the offence.

12. Perjury, subornation of perjury, etc.

(1) In a charge for perjury or for an offence deemed to be perjury, it is
sufficient to set out-

(a) the substance of the offence charged; and

(b) the court, tribunal or person before whom the accused falsely swore or
falsely declared or affirmed the matter charged as false-

without setting out the commission or authority of the court, tribunal or
person.

(2) In a charge for subornation of perjury and other similar offences where
the offence of perjury has been actually committed, it is sufficient to allege the offence of the person who committed the offence of perjury in the manner referred to in subclause (1) and then to allege that the accused unlawfully caused and procured that person to commit the offence of perjury as alleged.

(3) In a charge for subornation of perjury and other similar offences where
the offence of perjury or other offence has not been actually committed, it is sufficient to set out the substance of the offence charged against the accused, without setting out any of the matters referred to in subclause (1).

13. Names of witnesses to be included on indictment

The following information must be included on an indictment-

(a) the name of every witness who gave evidence at the committal proceeding, indicating whether the prosecution proposes to call the witness at the trial; and

(b) the names of any other witnesses the prosecution proposes to call at the trial.

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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.

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5. How a criminal proceeding is commenced

5. How a criminal proceeding is commenced

A criminal proceeding is commenced by-

(a) filing or signing a charge-sheet in accordance with section 6; or

(b) filing a direct indictment in accordance with section 159; or

(c) a direction under section 415 that a person be tried for before a jury.

Schedule 1 describes what a charge or indictment must contain.

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7. Time limits for filing a charge-sheet

7. Time limits for filing a charge-sheet

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—

(a) otherwise provided by or under any other Act; or

(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

Note See Part 5.1A of Chapter 5 of the Children, Youth and Families Act 2005 for a shorter time limit in relation to children.

(2) A proceeding for an indictable offence—

(a) may be commenced at any time, except where otherwise provided by or under this or any other Act; and

(b) may be heard and determined summarily even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed.

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