Contributor: Greg Connellan
Magistrates’ Court: overview
The vast majority of legal problems are dealt with in the Magistrates’ Court. The types of matters the court can deal with are outlined in the Act of parliament that created the court: the Magistrates’ Court Act 1989 (Vic) (“MC Act”). The court deals with civil, criminal, industrial and some family related matters.
The Magistrates’ Court has a less formal atmosphere than higher courts. Wigs and gowns are not worn by barristers or magistrates. However, if you have a case before the court, wear a suit or smart casual clothing (e.g. a shirt and pants). This is important as it shows the magistrate you are taking the proceedings seriously. To gain the best possible result in your case, it is also important to show the court respect by addressing the magistrate as “Your Honour”.
If you have any questions about your court matter, contact the particular Magistrates’ Court where your case is being heard, or the court nearest to where you live. Search for your nearest Magistrates’ Court by postcode or suburb/town at www.mcv.vic.gov.au.
For Magistrates’ Court contact details, see “Contacts”.
You can make a complaint about the Magistrates’ Court. Complaints about the conduct of court staff, services provided, court processes or procedures or court facilities must be made in writing and sent to the Complaints Officer at the Melbourne Magistrates’ Court (email: email@example.com. A complaints form is available on the Magistrates’ Court website (select “Feedback and complaints” on the homepage).
Many of the cases heard in the Magistrates’ Court involve minor infringements of the law. Few people plead “not guilty” in the Magistrates’ Court.
The Magistrates’ Court has six specialist courts and divisions: the Koori Court, the Family Violence Division, the Drug Court, the Industrial Division, the Assessment and Referral Court List, and the Neighbourhood Justice Centre. Not all Magistrates’ Courts have specialist divisions; ask Magistrates’ Court staff about access to the divisions for your case.
The Victims of Crime Assistance Tribunal (VOCAT) also operates within the Magistrates’ Court (for further information about VOCAT, see Assistance for victims of crime).
The purpose of the specialist courts and divisions is to improve the outcomes for people presenting at the court by taking a more individualised and service-focused approach to people with particular special needs, which provides a more realistic method of justice for these people. Also, in criminal matters, these specialist courts provide more effective access to rehabilitation for offenders.
Access to the specialist courts and divisions is controlled by eligibility criteria related to what each division deals with (e.g. only matters relating to family violence can be heard in the Family Violence Division, and only people identifying as being Koori can have their matter heard in the Koori Court). Other eligibility criteria for the specialist courts and divisions relate to the seriousness of the offending.
Even though some matters (e.g. traffic offences, breaches of the Domestic Animals Act 1994 (Vic) and disputes over parking fines) are not generally considered to be criminal matters, they are often heard alongside matters that are criminal in nature. They are treated as criminal matters, so the onus of proof generally rests with the prosecution, and the criminal standard of proof must be satisfied.
Increasingly, minor matters are being dealt with by an enforcement agency imposing fines; you only go to court if you choose to. Failing to pay a fine (e.g. a parking fine) might bring you into contact with Fines Victoria (the organisation responsible for enforcing fines). However, disputes about the imposition or enforcement of fines by Fines Victoria can be taken to the Magistrates’ Court (see Fines and infringements, and “Infringement notices” in Driving offences, for information on how to get these matters heard in a Magistrates’ Court).
At the same time, more serious crimes can now be dealt with by the Magistrates’ Court, making it more significant within our justice system than previously.
The Magistrates’ Court has the jurisdiction to handle all “summary” (i.e. less serious) criminal offences and many “indictable” (i.e. serious) criminal offences. Typical summary matters include being drunk and disorderly, behaving offensively, damaging property wilfully, resisting police, and loitering.
Section 28(1) of the Criminal Procedure Act 2009 (Vic) (“CP Act”) states that any offence for which the maximum prison term is 10 years or less, and the maximum fine set is 1200 penalty units (pu) (see “A note about penalty units” at the start of this book) 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)) are:
• recklessly causing serious injury (s 17);
• theft, robbery or burglary where the value of the stolen property does not exceed $100 000 (ss 74–76);
• obtaining property by deception, or obtaining financial advantage by deception or false accounting, where the amount involved does not exceed $100 000 (ss 81–83);
• intentionally or recklessly causing injury (s 18);
• threats to kill or inflict serious injury (ss 20, 21);
• assaults (s 31);
• sexual assault (s 40);
• various other sexual offences, excluding rape (ss 41, 42, 43, 44, 45, 46, 47, 48, 49C–49I, 49K–49R, 50E, 50F, 51B–51I, 52B–52E);
• extortion with the threat to kill (s 27).
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 have their matter heard in a higher court before a jury. However, the higher penalties in the County Court, and the heavy cost and time delays involved in matters heard in the County Court, are strong disincentives. It is almost always preferable from the defendant’s point of view to have the matter dealt with in the Magistrates’ Court. See also “Representing yourself in a criminal case in the Magistrates’ Court” in Representing yourself in court.
In recent decades, the Magistrates’ Court has played a larger role in the area of preventative and therapeutic responses to criminal offending. Many services are now available to accused people at court. These include the Court Integrated Services Program (CISP), the Youth Justice Court Advice Service, family violence programs and initiatives, the 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 at www.mcv.vic.gov.au (click on “Find support”, then select the relevant tab).
If an indictable offence cannot be heard by a Magistrates’ Court – or if it can be heard there, but the court determines that the matter is too serious, or the accused does not consent to the matter being heard in a Magistrates’ Court – then the accused must be tried by a judge and jury in a higher court. In such a case, the magistrate conducts a “committal proceeding”, which is a court hearing that decides 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 cross-examination at a committal proceeding. It is also important to not 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 to trial, the defence lawyers may choose to cross-examine witnesses to 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 the defence lawyers to consider in planning a trial defence.
There are onerous requirements for running a committal proceeding.
For information about the “hand-up brief” procedure, see “Committal procedure” in Which court for which crime?
The civil jurisdiction of the Magistrates’ Courts’ is set out in 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 hear cases even 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;
• claims for repairs or for injuries resulting from motor vehicle accidents;
• claims for the return of goods illegally detained;
• 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 to the Family Court (s 46 Family Law Act 1975 (Cth));
• cancellation of car sale 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 the 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 bring an action within the correct jurisdiction, because otherwise the court can strike out the matter 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.
Under section 101, the court may amend the complaint to bring the proceeding within its jurisdiction, or stay the proceeding pending an application to transfer the proceeding to a higher court.
The Magistrates’ Court encourages parties to resolve their civil disputes through mediation and has the power to refer parties to mediation (s 108 MC Act). Information about mediation is available on the Magistrates’ Court website (www.mcv.vic.gov.au; select “Civil matters” then “Mediation”). For an overview of mediation, see “Mediation”.
The Magistrates’ Court may also refer parties in a civil dispute to “early neutral evaluation”, where a magistrate provides the parties with a non-binding opinion on the likely outcome of their case at a court hearing. Information about early neutral evaluation is available on the Magistrates’ Court website (select “Civil matters” then “Early neutral evaluation”).
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 can 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 people in dispute to communicate and negotiate.
The conflicting parties meet with two mediators, who help them 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 has offices in metropolitan and regional Victoria and is free of charge). Mediation can be conducted at a location convenient to the people involved. If an interpreter is needed, one can be provided for free.
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. Coroners Courts are open to the public.
A coroner’s inquest must be held in certain circumstances, including where:
• the coroner suspects homicide;
• the deceased was in custody or care immediately before their death;
• the identity of the deceased is not known;
• the death occurred in prescribed circumstances.
The coroner may hold an inquest into any death they are investigating.
Any person can request that the coroner hold an inquest into a death. Within three months of receiving a request, the applicant must be advised that the coroner:
• has decided to hold an inquest;
• has decided that an inquest will not be held;
• 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 the autopsy report (and any other reports related to medical examinations 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 lawyer 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 if it is in the interests of justice for the witnesses to give evidence. Witnesses are issued certificates stating 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. However, when police officers may be involved in a death (e.g. a person dies in police custody), lawyers are engaged to assist the coroner.
The coroner attempts to establish 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 arrangement where magistrates in country courts undertook some coronial work.
See also “Making a complaint about a judge or magistrate”.
County Court: overview
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 County Court judge to the chief judge. Complaints must be in writing. You can contact the complaints officer at firstname.lastname@example.org. See also “Making a complaint about a judge or magistrate”.
The County Court can hear all indictable offences except treason, murder and some other very serious offences (s 36A County Court Act 1958 (Vic)). Examples of the more serious criminal matters regularly tried in the County Court are intentionally causing serious injury, armed robbery and rape.
The Director of Public Prosecutions (DPP) decides whether a trial is to be held in the County or Supreme Court (s 160 CP Act). In practice, all indictable offences except treason, murder, serious terrorism and extremely serious drug offences are heard in the County Court.
Unlike magistrates in the Magistrates’ Court, County Court judges are not limited in imposing terms of imprisonment on people convicted of committing crime. They may impose any sentence, subject to the general principles of sentencing and the maximum penalties set by the legislation that establishes a certain act as a crime.
The jurisdiction of the County Court covers:
• all claims for personal injuries and other personal actions (e.g. 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;
• actions where jurisdiction is specifically given to the County Court by a statute.
Any sentencing order (i.e. a sentence of imprisonment in a criminal case) from the Magistrates’ Court can be appealed in the County Court (pt 6.1 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 (s 256 CP Act).
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 Notice of Appeal under the CP Act must be filed within 28 days of the sentence being imposed. After the 28 days has passed, a person may only appeal with the leave (i.e. permission) of the County Court. Under section 263, an appeal filed after 28 days is deemed to be an application to the County Court for leave 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 (i.e. attend the County Court and conduct their appeal case) 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 them to 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 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.
Any decision of the County Court in its appellant jurisdiction is generally final. An exception is when the court substitutes a sentence of imprisonment for any other sentence imposed; this sentence can be appealed in the Appeal Court of the Supreme Court (with the leave of the Appeal Court). The CP Act (ss 283–286) sets out the procedure for appealing a sentence in the Court of Appeal.
The DPP has the right to appeal a sentence imposed in the Magistrates’ Court (pt 6.1 CP Act).
A civil order of the Magistrates’ Court cannot be appealed in the County Court.
Appealing County Court decisions
Appeals against conviction in a criminal trial before a jury – or a sentence imposed by a judge in the County Court or in the Supreme Court’s Trial Division – are heard in 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). An application for leave to appeal must be lodged within 28 days after the appellant has been sentenced (ss 275, 279).
The DPP cannot appeal an acquittal before a jury, but may appeal a sentence (s 287). It is best to get legal advice before commencing an appeal.
The objective of the County Koori Court is to ensure greater participation by the Aboriginal community in the sentencing process. The County Koori Court only deals with matters where an Aboriginal or Torres Strait Islander person is pleading guilty and the judge considers it is an appropriate matter to come before the court.
Supreme Court: overview
The Supreme Court of Victoria has two parts: the Trial Division and the Court of Appeal.
The Trial Division is responsible for matters that previously were heard by a single justice (i.e. judge) of the Supreme Court. The Trial Division consists of the chief justice and other justices of the court.
The Court of Appeal was previously known as the full court 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. 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.
From this point the Trial Division will be referred to as the Supreme Court and the Court of Appeal will be specifically referred to where necessary.
See also “Making a complaint about a judge or magistrate”.
The Supreme Court has jurisdiction to hear all indictable offences. Note that while the County Court can also hear indictable offences (except for particular, very serious offences; see “County Court”), only the Supreme Court can hear murder and treason charges.
The Supreme Court’s jurisdiction is unlimited in the amount of money that may be claimed and it is unlimited in the subject matter of the cases it can hear.
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.
• 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.
Note that an appeal to the Supreme Court means the person has abandoned finally and conclusively their right of appeal to the County Court (s 273 CP Act).
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. For contact details, see “Contacts”.