69. Procedure for joint hearings if no case submission made

69. Procedure for joint hearings if no case submission made

(1) After the close of the case for the prosecution, an accused who wishes to make a submission that there is no case for the accused to answer must do so at that time.

(2) If, after the Magistrates' Court has ruled on all no case submissions, charges against 2 or more accused remain to be determined, each accused must advise the court, in response to questioning under section 67 or 68, which of the options referred to in section 66(b) or (c) the accused elects to take.

The provisions here and at 66 appear to change what was the position at common law in Victoria, that where one co-accused makes a no case to answer submission and the othe co-accused does not, the judge should not rule on the submission until the co-accused not making the submission has called evidence (if any): R v Anthony [1962] VR 440.

This approach was approved by Young CJ in R v Faure and Corrigan [1978] VR 246 but is inconsistent with other Australian jurisdictions.

Most recently, in R v Croxford & Doubleday (Ruling No 4) [2009] VSC 519 Coghlan J allowed counsel for a co-accused to defer announcement of the course to be taken, and was permitted to do so. This occurred in August 2009 (before the commencement of the Criminal Procedure Act 2009).

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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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29. When an indictable offence may be heard and determined summarily

29. When an indictable offence may be heard and determined summarily

(1) The Magistrates' Court may hear and determine summarily a charge for an
offence to which section 28(1) applies if-

(a) the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and

(b) the accused consents to a summary hearing.

Notes

1. Section 82 provides for a summary hearing without consent in the case of a corporate accused which fails to appear in answer to a summons.

2. Section 168(3) provides that a charge transferred by order under that section must be heard and determined summarily.

(2) For the purposes of subsection (1)(a), the Magistrates' Court must have regard to-

(a) the seriousness of the offence including-

(i) the nature of the offence; and

(ii) the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and

(iii) whether the offence forms part of a series of offences being alleged against the accused; and

(iv) the complexity of the proceeding for determining the charge; and

(b) the adequacy of sentencing orders available to the court, having regard to the criminal record of the accused; and

(c) whether a co-accused is charged with the same offence; and

(d) any other matter that the court considers relevant.

(3) A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence.

(4) Nothing in subsection (2) applies to a proceeding in the Children's Court.

(5) If a body corporate and a natural person are jointly charged with an indictable offence which may be heard and determined summarily, the Magistrates' Court must not hear and determine the charge summarily against either of the accused unless-

(a) each of them consents to a summary hearing; or

(b) if the body corporate fails to appear in the proceeding, the natural person consents to a summary hearing and the court proceeds under section 82 to hear and determine the charge in the absence of the body corporate.

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