55. Contest mention hearing

55. Contest mention hearing

(1) This section applies to a proceeding for-

(a) a summary offence; or

(b) an indictable offence that may be heard and determined summarily.

(2) The Magistrates' Court may, between the return date and the day on which the charge is heard, from time to time conduct a contest mention hearing.

(3) At a contest mention hearing, the Magistrates' 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 (other than the accused) for the hearing of the charge and whether any witnesses are from interstate or overseas;

(c) request each party to indicate the evidence that party proposes to adduce and to identify the issues in dispute;

(d) require the accused to advise whether the accused 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 this Part;

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

(4) The accused must attend all contest mention hearings.

Notes

1. Section 3 defines attend as to be physically present in court.

2. See section 334 in relation to a corporate accused.

3. Section 330 gives the court power to excuse an accused from attending a hearing.

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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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50. Expert evidence

50. Expert evidence

(1) If the accused intends to call a person as an expert witness at the
hearing of the charge, the accused must serve on the informant in accordance with section 392 and file in court a copy of the statement of the expert witness in accordance with subsection (2)-

(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 statement is not then in existence, as soon as possible after
it comes into existence.

(2) The statement must-

(a) contain the name and business address of the witness; and

(b) describe the qualifications of the witness to give evidence as an expert; and

(c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed.

Note

Section 177 of the Evidence Act 2008 provides for certificates of expert evidence.

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49. Informant may place material on database

49. Informant may place material on database

(1) This section applies if-

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

(b) the accused's legal practitioner is authorised by the Secretary to the
Department of Justice to access electronically the information, documents and things referred to in section 43; and

(c) it is practicable to transmit electronically the information, documents and things that are required to be disclosed.

(2) Subject to this Division, the informant must place on the prescribed database a copy of-

(a) the preliminary brief, if any; and

(b) the full brief; and

(c) all additional information, documents and things, if any, requested by the accused under section 43; and

(d) all additional information, documents and things required to be disclosed under section 42.

(3) Placement of copies of material on the prescribed database under subsection (2) is deemed to be service for the purposes of this Division.

Note

Time limits provided in this Division for service of a preliminary brief,
a full brief or particular information, documents or things still apply.

(4) A statement by the informant in a copy of a preliminary brief placed on
the prescribed database need not be sworn or attested as required by section 38 if-

(a) the database technology does not permit placement of the copy in that form; and

(b) a physical copy of the preliminary brief complies with section 38.

(5) An informant who places an unsworn or unattested preliminary brief on the prescribed database must retain the physical copy of the preliminary brief that is sworn or attested for a period of 12 months after the termination of the charge.

Note

Section 414 provides for acknowledgment of false statements.

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48. Disclosure of address or telephone number of witness

48. Disclosure of address or telephone number of witness

(1) The informant must not disclose the address or telephone number including a private, business or official address or telephone number) of any person in any information, document or thing provided to the accused under this Division unless-

(a) the informant believes that-

(i) the information, document or thing does not identify the address or telephone number as that of any particular person; or

(ii) the address or telephone number is relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(b) the Magistrates' Court permits the disclosure in accordance with subsection (3) on application made by the informant or the accused.

(2) For the purposes of subsection (1), the informant may delete, or render illegible, an address or telephone number included in the information, document or thing before service on the accused.

(3) The Magistrates' Court may grant an application made under subsection(1)(b) if the court is satisfied that-

(a) the address or telephone number is relevant to the offence charged; and

(b) one of the following applies-

(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i).

(4) For the purposes of subsection (3)(b)(ii), the Magistrates' Court must
have regard to-

(a) the right to privacy of the witness; and

(b) the right of the accused to prepare properly for the hearing.

Note

See section 14 of the Victims' Charter Act 2006 as to victims' privacy.

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46. Accused may apply for order requiring disclosure

46. Accused may apply for order requiring disclosure

(1) The accused may apply to the Magistrates' Court for an order under subsection (2) requiring disclosure if-

(a) the informant has served on the accused under section 45 a statement of grounds for refusing disclosure; or

(b) the informant has failed to give disclosure in accordance with this Division.

(2) On application under subsection (1), the Magistrates' Court may order that the informant disclose to the accused any information, document or thing in accordance with a request under section 43 or a requirement of this Division.

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45. Grounds on which informant may refuse disclosure

45. Grounds on which informant may refuse disclosure

(1) The informant may refuse to disclose any information, document or thing
that is required by this Division to be disclosed to the accused if the informant considers that disclosure would, or would be reasonably likely to-

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

(b) prejudice the fair hearing of the charge against 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 contraventions 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 person referred to in section 43(1)(a) or of a family member, as defined in the Family Violence Protection Act 2008, of such a person.

(2) The informant may refuse to disclose any information, document or thing that is requested under section 43(1)(d) on any ground on which the informant would be entitled to refuse to produce the information, document or thing under a witness summons.

(3) The informant may refuse to disclose the particulars of any previous
conviction of any witness who the informant intends to call at the hearing if the previous conviction is, because of its character, irrelevant to the
proceeding but the informant must advise the accused of the existence of any undisclosed previous convictions.

Notes

1. See section 14 of the Victims' Charter Act 2006 as to victims'
privacy.

2. See section 416 as to the prosecution's general obligation of
disclosure.

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44. Informant must comply with request or state grounds of refusal

44. Informant must comply with request or state grounds of refusal

(1) Within 7 days after the informant receives a request under section 43, the informant must comply with the request or serve on the accused a written notice that the informant refuses to comply with the request, identifying the grounds for refusing disclosure.

(2) The Magistrates' Court may vary a time limit referred to in this section

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43. Accused may make request for material etc. not provided

43. Accused may make request for material etc. not provided

(1) The accused may give to the informant a written request for-

(a) a copy of any statements made or information given by persons listed in a full brief;

(b) a copy of any things listed in a full brief;

(c) inspection of the exhibits at a time and place agreed between the accused and the informant;

(d) a copy of any information, document or thing specified by the accused that is required by or under this Act to be included in a preliminary brief or a full brief, as the case may be, and was not so included;

(e) particulars of previous convictions of any witness who the prosecution intends to call at the hearing.

(2) Subject to subsection (3), a request under subsection (1) may be made at any time after service of the preliminary brief or the full brief, whichever first occurs.

(3) Unless the Magistrates' Court otherwise orders, a request under subsection (1) must be made at least 7 days before-

(a) the contest mention hearing; or

(b) if a contest mention hearing is not held, the summary hearing.

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37. Contents of preliminary brief

37. Contents of preliminary brief

(1) A preliminary brief must include-

(a) a copy of the charge-sheet in respect of the alleged offence; and

(b) a notice in the form prescribed by the rules of court-

(i) explaining this section and section 84; and

(ii) explaining the importance of the accused obtaining legal representation; and

(iii) advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and

(iv) providing details of how to contact Victoria Legal Aid; and

(c) a statement made by the informant personally that complies with subsection (2) and section 38; and

(d) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and

(e) a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions known at that time; and

(f) if the informant refuses to disclose any information, document or thing that is required to be included in the preliminary brief, a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure; and

(g) a list of any other orders that are or will be sought, as known at the time of preparation of the preliminary brief.

(2) A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include-

(a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and

(b) a description of the background to and consequences of the alleged offence, if known; and (c) a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and

(d) a list of the names of all persons who, at the time the statement is
signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and

(e) a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at
the time the statement is signed.

(3) A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.

Example

Statements of key witnesses may be included in the preliminary brief.

Notes

1. If the Magistrates' Court hears and determines a charge in the absence of the accused, section 84 provides that certain documents in a preliminary brief served on the accused at least 14 days before the hearing date are admissible in evidence.

2. See section 86 as to proof of criminal record in the absence of the accused.

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35. When preliminary brief is to be served

35. When preliminary brief is to be served

(1) If required to do so by section 24, the informant must serve a preliminary brief on the accused.

(2) At any time after the commencement of a proceeding, the accused, by written notice to the informant, may request that a preliminary brief be served.

(3) If the accused gives notice under subsection (2), the informant must serve on the accused a preliminary brief within 14 days after receipt of the notice.

(4) Nothing in this section prevents the informant from serving a preliminary brief on the accused at any other time.

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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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