Contributor: Greg Connellan
The Magistrates’ Court of Victoria is the first level in the Victorian court system. The court has summary jurisdiction to hear and determine criminal, civil and traffic offences. The Magistrates’ Court also exercises specialist jurisdiction for disadvantaged participants.
The vast majority of legal problems are dealt with in the Magistrates’ Court. The court’s areas of work are outlined in the Act of Parliament that created the court: the Magistrates’ Court Act 1989 (Vic) (“MC Act”). It deals with civil, criminal, industrial and some family-related matters.
Perhaps because of the large volume of cases and the types of cases dealt with in the Magistrates’ Court, there is a far less formal atmosphere here than in the higher courts. Wigs and gowns are not worn by barristers or magistrates. If you have a case before the court, neat casual clothing is probably the best option, but wearing a suit will not go against you.
Magistrates expect, and often demand, to be shown respect. They should always be address as “Your Honour”. To gain the best possible result in your case, it is important to present yourself in a way that shows the magistrate that you take the proceedings seriously.
You can contact the court where your matter is being heard, or the court nearest to where you live. Search for your nearest Magistrates’ Court by postcode or suburb/town at www.magistratescourt.vic.gov.au, or you can visit the Court Services Victoria website at www.courts.vic.gov.au.
Melbourne Magistrates’ Court
233 William Street, Melbourne Vic 3000
Tel: 9628 7777
You can make a complaint about the Magistrates’ Court. Complaints regarding conduct of court staff, services provided, court processes or procedures or court facilities must be in writing to the Complaints Officer at the Melbourne Magistrates’ Court. A complaints form is available on the Magistrates’ Court website. You can contact the Complaints Officer by calling 9032 0951 or emailing email@example.com.
Many of the cases heard in the Magistrates’ Court involve penalties being imposed for relatively minor infringements of the law. Few people plead “not guilty” in the Magistrates’ Court.
The Magistrates’ Court includes six specialist court divisions: the Koori Court, the Family Violence Division, the Drug Court, the Industrial Division, the Assessment and Referral Court List, and the Neighbourhood Justice Division. These divisions are designed so that the court can better address different types of matters. In criminal matters, they provide more effective access to rehabilitation for offenders. The Victims of Crime Assistance Tribunal (VOCAT) also operates within the Magistrates’ Court (for further information about VOCAT, see Assistance for victims of crime).
Access to these divisions of the court is controlled by eligibility criteria related to what each division deals with, such as family violence, identification as a Koori, or offending arising from drug addiction. Other eligibility criteria relate to the seriousness of the offending. Not all Magistrates’ Courts have specialist divisions; ask Magistrates’ Court staff about access to the divisions for your case.
Traffic offences, breaches of the Domestic Animals Act 1994 (Vic) and disputes over parking fines, for instance, are dealt with in the Magistrates’ Court. Though these are not generally treated as criminal matters, they are often heard alongside matters that are criminal in nature. As they are treated as criminal matters, the onus of proof generally rests with the prosecution, and the criminal standard of proof must be satisfied.
Increasingly, however, minor matters are being dealt with by way of direct fines imposed by an enforcement agency (e.g. the Public Transport Corporation); only if you elect to go to court will you now get a hearing for such matters. Although failing to pay a parking or any other similar fine might bring you into contact with the Infringements Court, you cannot get a hearing there (see Fines and infringements, and “Infringement notices” in Driving offences, for information on how to get one of these matters before a Magistrates’ Court).
At the same time, more and more types of serious crimes can be dealt with by the Magistrates’ Court, making it far more significant within our justice system than was previously the case.
The Magistrates’ Court has the jurisdiction to handle all “summary” (less serious) criminal offences and many “indictable” (serious) criminal offences. Typical summary matters are: being drunk and disorderly, offensive behaviour, wilful damage, resisting police, and loitering offences.
Section 28(1) of the Criminal Procedure Act 2009 (Vic) (“CP Act”) provides that, in addition to the offences listed in schedule 2 of that Act, any offence for which the maximum prison term is 10 years or less, and the maximum fine set is 1,200 penalty units (pu, see “A note about penalty units”) or less, can be heard in the Magistrates’ Court. Schedule 2 also sets out offences that have higher maximum penalties than these, but which can still be dealt with in the Magistrates’ Court.
Some of the serious offences that may be heard in the Magistrates’ Court (with reference to relevant sections of the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”) are:
•recklessly causing serious injury (s 17);
•theft, robbery or burglary where value does not exceed $100,000 (ss 74–76);
•obtaining property by deception, or obtaining financial advantage by deception or false accounting, where amount does not exceed $100,000 (ss 81–83);
•intentionally or recklessly causing injury (s 18);
•threats to kill (ss 21, 27);
•threats to inflict serious injury (s 21);
•assaults (s 31);
•indecent assault (s 39);
•various sexual offences, excluding rape (ss 47(1), 48(1), 49(1), 51(1), (2), 52(1), (2), 53, 54, 58, 59); and
•extortion with threat to kill (s 27).
However, even if an indictable offence can be heard in the Magistrates’ Court, the defendant or the prosecutor may demand that it be heard in the County Court.
The prosecution would normally do this if the limited penalties available to a magistrate did not reflect the seriousness of the alleged offence. The Magistrates’ Court cannot impose prison sentences of more than two years for any single offence (ss 113, 113A Sentencing Act 1991 (Vic) (“Sentencing Act”). If several offences were committed at the same time, the Magistrates’ Court cannot sentence a person to more than a total of five years imprisonment, unless an Act specifically provides otherwise (s 113B Sentencing Act).
Defendants might also prefer to go to a higher court and have the matter heard by a jury. However, higher penalties in the County Court, and the heavy cost and time delays involved, are a strong disincentive. It is almost always preferable from the defendant’s point of view to have the matter dealt with in the Magistrates’ Court, if possible. See also “Representing yourself in a criminal case in the Magistrates’ Court” in Representing yourself in court.
In recent decades, a stronger emphasis has been given to the potential role of the Magistrates’ Court in the area of preventative and therapeutic responses to criminal offending. A large number of services are now available to accused persons at court. These include the Criminal Justice Diversion Program, Court Referral for Evaluation of Drug Intervention and Treatment (CREDIT Bail Support) Program, Court Integrated Services Program (CISP), Youth Justice Court Advice Service, Family Violence Programs and Initiatives, Mental Health Court Liaison Service, Koori Community Engagement Officers and the Enforcement Review Program.
Details of these services and the requirements for eligibility can be obtained from your local Magistrates’ Court, or from the Magistrates’ Court website, under “Specialist Jurisdictions”, “Guide to Specialist Courts and Court Support Services”, at www.magistratescourt.vic.gov.au.
If an indictable offence may not be heard by Magistrates’ Courts – or if it can be heard there, but the court determines that the matter is too serious, or the accused does not consent – then the accused must be tried by a judge and jury in a higher court. In these cases, the magistrate conducts “committal proceedings”, which is a proceeding to decide whether or not there is enough evidence to justify sending the case to a trial by jury.
People involved in committal proceedings – particularly victim witnesses for the Crown – should be aware that their cross-examination at trial will not necessarily be the same as their experience at a committal proceeding. It is also important not to presume that a person who is committed for trial will be found guilty at trial.
Committal proceedings are designed to test the strength of the evidence. Once it appears likely that a defendant will be committed, counsel for the defence may choose to cross-examine witnesses in a way designed to do little more than examine their credibility. Testimony that is very strong on paper may be much weaker when given by a frightened or confused witness. Equally, what might appear to be inconclusive evidence can be far more forceful when presented by a firm, decisive witness. Knowing how a witness is likely to present in court is an important element for counsel to consider in planning a trial defence.
There are quite onerous requirements for the running of committal proceedings. For information about the “hand-up brief” procedure, see “Committal procedure” in Which court for which crime?
The Magistrates’ Courts’ civil jurisdiction is set out generally under sections 4, 100 and 101 of the MC Act.
The monetary limit for claims in the Magistrates’ Court is $100,000 for all matters, including personal injury. This limit is defined in section 3 of the MC Act. However, some of the other Acts that confer jurisdiction on the Magistrates’ Court permit magistrates to exercise jurisdiction even in cases where the amount of money involved exceeds $100,000.
Common types of civil matters heard in the Magistrates’ Court include:
•contractual disputes, including claims for ordinary debts;
•negligence claims and other breaches of a duty of care that cause another party to suffer injury or loss – these are known by lawyers as torts (for more about negligence, see Negligence and injury).
•claims for repairs or for injuries resulting from motor vehicle accidents;
•claims for the return of goods illegally detained;
•claims for damages resulting from assaults; also be aware that the magistrates sit as members of VOCAT (see Assistance for victims of crime);
•claims for taxes payable under any Act, including interest payable;
•injunctions (court orders);
•interests in land;
•actions to enforce the payment of fines, penalties, forfeitures or other sums of money;
•family law: contested matters regarding children can only be heard by a magistrate on an interim basis; where property is worth more than $20,000, either party may ask that the matter be transferred, and in practice often do so (s 46 Family Law Act 1975 (Cth));
•cancellation of car purchase contracts for non-compliance with forms (ss 45, 47 Motor Car Traders Act 1986 (Vic));
•eviction of tenants (pt 6, ss 509, 510 Residential Tenancies Act 1997 (Vic));
•orders to do with fences dividing property.
The Magistrates’ Court does not have jurisdiction to hear the following matters:
•where the amount sought to be recovered or the value of the subject matter is more than the jurisdictional limit, unless the parties consent in writing;
•matters concerning title to any property, the value of which at the time of commencing the proceeding is greater than the jurisdictional limit, unless the parties consent in writing;
•matters brought by application for a prerogative writ, which are usually intended to challenge the decisions made by public officials;
•matters brought upon a judgment previously granted by the Supreme Court or County Court.
It is important to make sure that an action is brought within the correct jurisdiction, because otherwise the court has power to strike the matter out (cancel the action) and award costs against the person bringing the action (s 101(c) MC Act). The Magistrates’ Court does not have jurisdiction in a civil case unless expressly enacted by statute and any sum claimed is within the Magistrates’ Court limit (see above).
Under section 101, the court may amend the complaint for the purpose of bringing the proceeding within jurisdiction, or stay the proceeding pending an application to transfer the proceeding to a higher court.
Arbitration is a more informal hearing of cases in the Magistrates’ Court. The court must determine disputes of less than $10,000 by arbitration, subject to a number of exceptions set out in section 102 of the MC Act. The intention is to reduce the cost and formality of disputes for small claims (s 102). (For an alternative means of resolving small claims, see “Small claims: VCAT’s Civil Claims List” in Taking action as a consumer.) In addition, the court has power to refer a civil proceeding to mediation.
The Dispute Settlement Centre of Victoria (DSCV) describes mediation as a form of dispute resolution in which an impartial third party helps communication and negotiations between people in dispute.
The people in conflict meet with two mediators, who help the conflicting parties to work out a solution to their dispute that is acceptable to all parties. Parties to the dispute retain control over their dispute and take responsibility for the outcome.
Mediation is available throughout Victoria (DSCV have offices in metropolitan and regional Victoria; contact details for all DSCV offices are available on their website) and is free of charge. Mediation can be conducted at a location convenient to the parties. If an interpreter is needed, one can be provided at no charge.
Dispute Settlement Centre of Victoria (DSCV)
Level 4, 456 Lonsdale Street, Melbourne Vic 3000
Tel: 1300 372 888
The Coroners Court is a specialist inquisitorial court with special tasks to perform. It is a court of inquiry and its role is set by the Coroners Act 2008 (Vic), which came into operation on 1 November 2009.
A Coroner’s inquest must be held in certain circumstances, including where:
•the Coroner suspects homicide; or
•the deceased immediately before death was a person placed in custody or care;
•the identity of the deceased is not known; or
•the death occurred in prescribed circumstances.
The Coroner may hold an inquest into any death they are investigating.
Any person may request that the Coroner hold an inquest into a death. Within three months of receiving a request, the Coroner must advise the applicant that the Coroner:
•has decided to hold an inquest;
•has decided that an inquest will not be held; or
•has not made a decision as to whether or not an inquest will be held and will advise the applicant of the decision when the decision has been made.
Unless otherwise ordered by the Coroner, the senior next of kin of a deceased person must be given reports of a medical examination performed on the deceased. The Coroner may make available to a person with a sufficient interest any statements they intend to consider in the course of the inquiry. A person with a sufficient interest who has been granted interested party status in an inquiry may appear before the inquiry and examine or cross-examine witnesses. The person may also, if desired, be represented by a barrister, a solicitor or, with the permission of the Coroner, by some other person. The sorts of people who have been regarded as having a sufficient interest include relatives of the deceased and, in some cases, community organisations and pressure groups.
Witnesses may object to giving evidence on the grounds that they may incriminate themselves. However, a Coroner is empowered to direct witnesses to give evidence that may be incriminating if it does not tend to prove that they have committed an offence or are liable to civil penalty arising under a law of a foreign country, and it is in the interests of justice to require that the witness give the evidence. The witness will be issued a certificate providing that any evidence they give cannot be used against them in any court or before any person or body authorised by the law of the state.
Coroner’s assistants are usually police prosecutors, based at the court complex. However, when there is a question about police involvement in a death, such as a death in police custody or a police shooting, generally lawyers are engaged to act as Counsel assisting the Coroner.
The Coroner attempts to establish, if possible, the identity of the deceased, the cause of death, and in some cases, the circumstances in which the death occurred.
From a public interest point of view, it is important to note that the Coroner may comment on any matter connected with the death, including matters related to public health and safety or the administration of justice. This power enables the Coroner to make positive recommendations for change to prevent future deaths.
Since 1 January 2014 all coronial matters are dealt with by the Coroners Court, ending the previous arrangements where magistrates at country local court undertook some coronial work.
Coroners Courts are open to the public. For more information about the Coroners Court visit the Coroners Court of Victoria website (see below).
Coroners Court of Victoria
65 Kavanagh Street, Southbank, Melbourne Vic 3006
(Family and Community Support Services, Family Liaison Officers, Registry, Coroners Prevention Unit)
Tel: 1300 309 519
In Victoria there is a separate, specialist Children’s Court, which is discussed in detail in The Children’s Court. For more information about the Children’s Court, go to www.childrenscourt.vic.gov.au.
The County Court is one rank higher in the Victorian justice system hierarchy than the Magistrates’ Court. From here on up, you can expect to see plenty of wigs and gowns. The County Court atmosphere is far more formal than that in the Magistrates’ Court, and the types of matters dealt with are generally more serious in the criminal jurisdiction, and involve larger amounts of money in the civil jurisdiction.
You can make a complaint about a judge of the County Court to the Chief Judge. Complaints must be in writing. You can contact the Complaints Officer by emailing firstname.lastname@example.org.
County Court of Victoria
250 William Street, Melbourne Vic 3000
Tel: 8636 6508 (civil registry); 8636 6570 (criminal registry)
Examples of some of the more serious matters regularly tried in the County Court include intentionally causing serious injury, armed robbery and rape. County Court judges are not limited (as are magistrates) in imposing terms of imprisonment on persons convicted of crime. They may impose any sentence, subject to the general principles of sentencing (see the Sentencing Act) and the maximum penalties set by the legislation that establishes a certain act as a crime.
The County Court has jurisdiction to hear all indictable offences except treason, murder and some other very serious offences (s 36A County Court Act 1958 (Vic)). The Director of Public Prosecutions (DPP) decides whether the trial is to be in the County or Supreme Court (s 160 Criminal Procedure Act 2009 (Vic)). In practice, all offences except treason, murder, serious terrorism and extremely serious drug offences are heard in the County Court.
The County Koori Court aims to ensure greater participation of the Aboriginal community in the sentencing process. The County Koori Court deals only with matters where an Aboriginal or Torres Strait Islander is pleading guilty and the judge considers it is an appropriate matter to come before the court. To contact the County Koori Court, email email@example.com.
The jurisdiction of the County Court covers:
•all claims for personal injuries and other personal actions (such as recovery of a debt or a chattel, or a claim for damages for an injury to a person’s property), irrespective of the amount claimed;
•claims against a council or municipality for loss or injury sustained while using roads, land, buildings, etc., under the control of the council or the municipality; and
•actions where jurisdiction is specifically given to the County Court by a statute.
An appeal may go to the County Court from any sentencing order of the Magistrates’ Court under part 6.1 of the CP Act.
Under section 256 of the CP Act any appeal operates as a rehearing, and the appellant does not have to enter the same plea as they did in the Magistrates’ Court.
The procedure to be followed for an appeal is set out in section 255 of the CP Act. An appeal is commenced by filing a Notice of Appeal with the Magistrates’ Court and serving a copy on the respondent (i.e. the police informant and the Victorian DPP). The time for filing a Notice of Appeal under the CP Act is 28 days. Under section 263 an appeal filed after the 28 day period is deemed to be an application for leave of the County Court to appeal.
The Notice of Appeal must set out the general grounds on which the appeal is based. It must also include an undertaking signed by the appellant that they will prosecute the appeal and notify the Registrar of the County Court of any change of address. If the appellant does not continue with the appeal, the County Court can order they pay costs.
Filing a Notice of Appeal generally acts as a stay of the sentence imposed, although there are two exceptions. First, if the appellant is in custody, the sentencing order is only stayed if and when the court grants bail pending the appeal. Second, a sentencing order that involves the cancellation or suspension of a driver’s licence is not automatically stayed unless and until the court so orders. The Notice of Appeal must include a signed statement that the appellant is aware that on appeal the County Court may make a sentencing order more severe than that sought to be appealed against.
An appellant who wishes to abandon (i.e. not proceed with) an appeal must file a Notice of Abandonment of Appeal with the County Court in the form prescribed by the County Court Rules. It is best to get legal advice before commencing an appeal.
Any decision of the County Court in its appellant jurisdiction is generally final. An exception occurs when the court substitutes a sentence of imprisonment for any other sentence imposed. One can then, with the leave of the Appeal Court of the Supreme Court, appeal against the sentence to that court. Sections 283–286 of the CP Act set out the procedure for an appeal to the Court of Appeal.
The DPP has the right to appeal against a sentence imposed in the Magistrates’ Court under part 6.1 of the CP Act.
There is no appeal to the County Court from a civil order of the Magistrates’ Court.
An appeal against conviction in a criminal trial before a jury – or a sentence imposed by a judge in the County Court or in the Trial Division of the Supreme Court – is to the Court of Appeal of the Supreme Court.
Appeals to the Court of Appeal are only available if the Court of Appeal gives the person leave to appeal (ss 274, 278 CP Act). The time for lodging an application for leave to appeal is 28 days after the appellant has been sentenced (ss 275, 279).
The DPP has no right of appeal against an acquittal before a jury, but may appeal against a sentence imposed after conviction (s 287).
Supreme Court of Victoria
210 William Street, Melbourne Vic 3000
Tel: 9603 9300
The Supreme Court of Victoria has two parts: the Trial Division and the Court of Appeal.
The Court of Appeal takes the place of what was previously known as the full court of the Supreme Court. The Trial Division is generally responsible for matters that previously were heard by a single justice of the Supreme Court. The Court of Appeal consists of the Chief Justice, the President of the Court of Appeal and a number of other justices of appeal. For any individual appeal, it is usual for three justices to sit, although the President of the Court of Appeal may decide that two justices are sufficient for a particular case.
The Trial Division of the court is the Chief Justice and other justices of the court.
From this point the Trial Division will simply be referred to as the Supreme Court and the Court of Appeal will be specifically referred to where necessary.
The Supreme Court has jurisdiction to hear all indictable offences. Note that while the County Court can also hear all indictable offences except those matters set out above, only the Supreme Court can hear murder and treason charges.
The jurisdiction of the Supreme Court is unlimited in the amount of money that may be claimed and it is effectively unlimited in the subject matter of the cases.
It is important to be aware, however, that the state government regularly amends the jurisdiction of the Supreme Court to exempt certain activities from the scrutiny of the court. An example of this is the Australian Grands Prix Act 1994 (Vic), which sought to prevent people living in the vicinity of Albert Park from bringing actions for compensation for damage caused to their property by Grands Prix construction work.
It is far more costly to bring a case in the Supreme Court than in the County Court. If a matter can be brought in the County Court instead of the Supreme Court, it is generally wise to do so.
An appeal can be taken to the Supreme Court in the following ways:
•From the Magistrates’ Court to the Supreme Court on a question of law from a final order of the court in that proceeding (s 272 CP Act). Any person aggrieved by a summary conviction or order must show a case of error, mistake, insufficient jurisdiction or no jurisdiction on the part of the Magistrates’ Court. A common ground for seeking an order to review is that there was no evidence, or insufficient evidence, to support the conviction or order, or that the order was opposed to all the evidence.
The application must be made to the Supreme Court no later than 28 days after the day on which the order complained of was made. The Supreme Court makes an order nisi calling on the party interested in maintaining the conviction or order to show cause why the conviction or order should not be reviewed. The order nisi is returnable before a single Supreme Court justice and in some cases before the Appeal Court. The Supreme Court may dismiss the order nisi or make it absolute, in that way confirming the prima facie finding of error. Note that an appeal to the Supreme Court may be sought from either a civil order (s 109 MC Act) or a conviction in a Magistrates’ Court, but there is no appeal to the County Court from a civil order.
•An appeal on a question of law can be brought by the DPP on behalf of the police from a final order of the Magistrates’ Court (s 272(2) CP Act). While such an appeal may lead to a reversal of the point of law on which the defendant was acquitted, the acquittal itself cannot be reversed.
•From October 2009, under section 273 of the CP Act an appeal to the Supreme Court will mean the person has abandoned finally and conclusively their right of appeal to the County Court.
•A person can appeal to the Court of Appeal with the leave of that court if the County Court substitutes imprisonment for another penalty and the Magistrates’ Court that originally heard the matter did not order imprisonment. Such an appeal must be instituted within 28 days after the sentence has been imposed by the County Court (ss 283, 284 CP Act).
•A party to a civil proceeding who is dissatisfied with the judgment or order of the County Court may appeal under section 74 of the County Court Act 1958 (Vic) to the Court of Appeal. The appeal must be instigated within 14 days.
•An appeal against conviction in a criminal trial before a jury, or a sentence imposed by a judge in the County Court or in the Trial Division of the Supreme Court, to the Appeal Court with leave of that court.
The Costs Court is part of the Trial Division of the Supreme Court. It can hear and determine disputes over legal costs in relation to proceedings in the Supreme Court, and in proceedings in the County Court, Magistrates’ Court, and VCAT where an Act or the Rules provide for such costs disputes to be determined in the Costs Court.
Tel: 9603 9345