Chapter 2 - Commencing a CP Flashcards
S 5 – How a criminal proceeding is commenced
Criminal proceeding is commenced by:
(a) Filing or signing charge sheet in accordance with s6
○ S 6 – commencement of CP in Mag Court
○ (1) CP in MC is commenced
○ (a) By filing charge sheet with registrar of MC;
○ (b) If accused arrested w/o warrant and released on bail, by filing charge-sheet with bail justice
○ (c) If summons issued under s 14, at the time the charge sheet is signed.
○ (2) if filed electronically – taken to comply with the Electronic Transactions Act Victoria
● (b) Filing a direct indictment in accordance with s 159
● (c) direction under s 415 that person be tried for perjury
The charge sheet
Requirements:
● 6(3)(a) in writing, (b) signed by informant
● (c) comply with Sch 1 (attach actual Schedule to end of notes)
○ (1) State the offence accused alleged to have committed
○ (2) particulars necessary to give reasonable information as to charge’s nature
○ (3) Identify statutory provision etc.
S7 – Time limits for filing charge sheet
● 7(1) Within 12mt of alleged commission of summary offence
○ (a) Unless otherwise provided by Act
○ (b) Except with consent of DPP and accused
● (2)(a) Indictable at any time, except where otherwise provided by Act
● (b) may be IOTS even though commences after 12mths
● 7A – time limits for prosecuting many sexual offences removed
Errors etc. in charge-sheet (s 9):
● (1) Not invalid by reason only of failure to comply with sch 1
● (2)(a) not invalid b/c Omitting to state time of commission (unless time essential element of the offence)
● (b) Incorrectly saying time when offence committed
● (c) Stating the offence to have been committed on an impossible day or on a day that never happened
S8 Order for amendment of charge-sheet
S8(1) Mag Ct can do at any time by order if it thinks necessary, unless the required amendment cannot be made without injustice to the accused. (2) If CS amended by order, treated as though filed in amended form for all purposes
(3) If amendment amounts to new offence, must be within time-limit
(4) If LP applies to offence charged in CS, CS may still be amended after expiry of LP if (a) previous CS sufficiently disclosed offence’s nature; (b) doesn’t amount to commencement of proceeding for new offence (c) amendment won’t cause injustice to A.
Listing of matter for mention hearing or filing hearing in the MC s10
● (1) If a CS contains a charge for a summary offence, the proceeding must be listed for a mention hearing.
● (2) If CS contains charge for IOTS → can list for either mention hearing or filing hearing, having regard to any request for a committal proceeding included on the CS
● (3) If a notice to appear is served under s 21 and a CS 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 (1) and (2), if CS contains a charge for an IO that is not an IOTS, proceeding must be listed for a filing hearing
S11 – place of hearing
● (1) CP in the MC is to be heard at the venue of the court nearest to (a) place where offence allegedly committed, OR (b) place of accused residence, except where otherwise provided or per (2)
● (2) Chief Mag can nominate in G-Gazette – venue for hearing of specified CrimProceeding or specified class
● (3) A CP in the MC is not invalid only because it was conducted at a venue of court other than the venue referred to in subsection (1) or nominated under subsection (2).
S12 - Court may issue summons or warrant to arrest
(1) on filing of CS under s 6, application may be made to registrar of Magi Court to issue:
● (a) Summons to answer to the charge directed to the accused;
● (b) A warrant to arrest in order to compel attendance of A
Unless notice to appear has been served on the A under Div 2.
(2) Can be made by informant personally or someone else on their behalf (only for summons, warrant must be personal);
(3) make in person or by post
(4) Registrar MUST, if satisfied charge discloses offence known 2 law
(a) issue summons to answer
(b) issue warrant if (5) satisfied
(5) Registrar Can’t issue warrant in first instance unless satisfied by sworn or affirmed evidence (oral or by affidavit) that:
(a) It’s probable the accused will not answer a summons; OR
(b) Accused has absconded, is likely to abscond or is avoiding service of summons that has been issued; OR
(c) warrant required/authorised by any other Act/for good cause.
Note: can issue warrant when A fails to answer summons (ss80-81)
S13 - Summons or warrant to be accompanied by CS and notice when served
Summons issued under ss 12 or 14 or warrant issued under s 12, on service or execution on accused, must be accompanied by:
● (a) copy of charge sheet
● (b) notice, in the form prescribed by the rules of court, containing
● (i) if the charge is for an indictable offence that is not IOTS or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4;
● (ii) any other IO or summary offence, summary of Div 2 of Pt 3.2
● (i)-(ii) Notice containing summary of relevant Part of Act
● (iii) advice to seek legal advice, and right potentially to legal aid
● (iv) details of how to contact VLA
S14 Police or public official may issue summons
• (1) Without limiting power of reg. of MC in any way,
(a) Popo, (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 po po of public official issues summons under (1), he/she must file the CS and summons with appropriate registrar within 7 days after signing CS.
• (3) If fails to comply with the above, crt can strike out charge
S15 contents of summons (must appear at certain time to answer charge - consequences for corporate accused)
(1) A summons must direct the accused to appear at the venue of the MC referred to in s 11 on a specified date/time to answer the charge.
(2) Summons to answer charge for IO served on corporate accused must state, on non-appearance. MC may proceed (a) for IOTS, hear and determine in A’s absence per Div 10 of Pt. 3.3 (b) otherwise, to conduct committal proceeding in absence per Ch 4
S16 – Personal service of summons (14 days before return date, or 7 days before FH for IO)
16 Except where othrwse expressly enacted, every summons to answer a charge must be served personally on accused per s 391—
(a) at least 14 days before return date, (b) or in case of indictable offence where filing hearing fixed, at least 7 days before filing hearing.
Indictable
● CL offences
● CA and Wrongs Act offences
● Level 1-6 imprisonment (life → 5 years)
Summary
● 2 years or less imprisonment
