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Chapter 2 – Commencement of Proceedings

  1. Criminal proceedings in Victoria are commenced by:

    Commencement by Charge-Sheet

  2. A charge-sheet is a document signed by the informant that states the offence or offences alleged against the accused (CPA 2009 s6 and Schedule 1). See 2.1 - Charge-Sheet and Indictment below for further details on the contents of a charge-sheet.
  3. Proceedings are commenced by charge-sheet when:
  4. When a charge-sheet is filed with a registrar, an application can be made to a registrar for the court to issue a summons to answer the charge or a warrant to arrest the accused, unless a notice to appear has been served on the accused (CPA 2009 s 12(1)).
  5. The application for the summons or warrant may be made at the same time the charge-sheet is filed (Fiore v Magistrates’ Court of Victoria [2020] VSC 92, [113]).
  6. If the registrar is satisfied that the charge discloses an offence known to law, the registrar may issue a summon or a warrant (CPA 2009 s 12(4)). The registrar may not issue a warrant to arrest in the first instance unless satisfied, by sworn or affirmed evidence (orally or by affidavit) that:

    (a) It is probable that the accused will not answer a summons; or

    (b) The accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or

    (c) A warrant is required or authorized by any other Act or for other good cause (CPA 2009 s 12(5)).

  7. While the question of whether the accused would attend is an important consideration in deciding whether there is ‘other good cause’ for the purpose of CPA 2009 s 12(5)(c), good causes are not limited to the question of attendance. Other factors that may be relevant to deciding whether there is good cause include the risk of interference with the administration of justice that might occur if the accused were allowed to remain at liberty, the strength or cogency of the evidence, the seriousness of the offending, the accused’s connection to the Victorian community and whether the accused resided interstate (Fiore v Magistrates’ Court of Victoria [2020] VSC 92, [75]-[90]).
  8. A police officer or public official who issues a summons to answer a charge must file the charge-sheet and summons with a registrar of the Magistrates’ Court within 7 days of signing the charge sheet. If he or she fails to file the charge-sheet and summons, the court may strike out the charge (CPA 2009 s14; DPP v Sher [2000] VSC 268; DPP v Hogg & Cyberman [2006] VSC 257; Uren v Neale [2009] VSC 267).
  9. It is not necessary for the person who signs the charge-sheet to personally attend the court registry to file the document. Filing may be performed on behalf of the signatory by an agent (DPP v Judge Fricke [1993] 1 VR 369).
  10. A summons to answer a charge must direct an accused to attend a specified Magistrates’ Court at a given time to answer the charge (CPA 2009 s15).
  11. It is not necessary to show that proceedings were called on for hearing on the date listed in the summons. The appropriate registrar on the application of the informant, may extend the return date before the return date or within 28 days of that date, if the summons has not been served. The registrar may grant the first extensions without and may only grant subsequent extensions if satisfied by sworn evidence that reasonable efforts have been made to serve the summons (CPA 2009 s19. See also Murdoch v Smith (2006) 15 VR 186; [2006] VSC 468).
  12. The court may only act on a summons that has been extended by the appropriate registrar if it is satisfied that the extension was made within the time permitted by the Act. The registrar should usually record the date on the order extending time (Brereton v Sinclair (2000) 2 VR 424; [2000] VSCA 211).

    Commencement by Direct Indictment

  13. The Director of Public Prosecutions may file a direct indictment against an accused. This is a document signed by the Director that states the offences alleged against the accused (CPA 2009 s159, s161; Public Prosecutions Act 1994 s3, s36).
  14. A direct indictment commences criminal proceedings against the accused where a magistrate has not committed the accused to stand trial on that offence or a related offence, or if the proceedings have previously been discontinued under s177, or through a nolle prosequi (CPA 2009 s3, s161).[1]
  15. The power to file a direct indictment is generally a "special decision" under the Public Prosecutions Act 1994. A power that is a special decision can only be exercised by the Director on the advice of a Director’s Committee. Crown Prosecutors may not exercise the power to file a direct indictment (Public Prosecutions Act 1994 s3, 22, s36).[2]
  16. A direct indictment may be distinguished from other indictments. Indictments that are filed after a magistrate commits the accused to stand trial for the offences that are charged in the indictment or for related offences do not commence new criminal proceedings and are not direct indictments. Instead, these indictments are part of the continuation of a criminal proceeding that started in the Magistrates’ Court with the filing or signing of the charge-sheet (CPA 2009 s162; R v Rushton [1967] VR 842).

    Direct Indictments and the Interests of Justice

  17. A direct indictment without a previous committal proceeding should only be used in exceptional circumstances. While the power to issue a direct indictment is not reviewable, the court may order a stay of proceedings in order to prevent any miscarriage of justice from the use of a direct indictment (Barton v R (1980) 147 CLR 75; R v Dupas (2006) 14 VR 228; [2006] VSC 481; Barron v Attorney-General of NSW (1987) 10 NSWLR 215).
  18. The absence of committal proceedings will always call for a careful examination of whether any resulting trial will be fair. The court will need to balance the interests of the community and the interests of the accused to determine whether any resulting trial would not be fair according to accepted standards of justice (Barton v R (1980) 147 CLR 75; Williams & Ors v DPP [2004] VSC 516).
  19. A committal proceeding is an important process that allows the accused to hear and test the evidence before trial. It gathers the prosecution evidence into the form of depositions and may enable the accused to cross-examine witnesses prior to trial. While a magistrate’s decision not to commit the accused to trial does not fetter the power of the Director of Public Prosecutions to file a direct indictment, the decision can serve as a strong statement to the prosecution that a matter should not be brought to trial (Grassby v R (1989) 168 CLR 1; [1989] HCA 45; Williams & Ors v DPP [2004] VSC 516; Fox v DPP [1992] 1 VR 673).
  20. The DPP may file a direct indictment where the magistrate has discharged the accused at the conclusion of the committal proceedings, or committed the accused to stand trial on a lesser offence. A court should not frustrate this power by ordering a stay of proceedings unless there is a good reason to do so (Kolalich v DPP (1991) 173 CLR 222; [1991] HCA 47).
  21. The law is currently unclear on whom the burden of proof lies in an application for a stay. On one view, the burden is on the accused, as he or she is the one bringing the application. The alternative view is that the burden is similar to an evidentiary burden and, once the accused properly raises the matter, the court must determine for itself whether a stay is required in the interests of justice (compare Williams & Ors v DPP [2004] VSC 516 and R v Dupas (2006) 14 VR 228; [2006] VSC 481).
  22. Where the accused applies for a stay of proceedings based on a direct indictment, the Crown should provide the court with an explanation for why this exceptional process was used. This assists the court to balance the interests of the Crown and the accused (Williams & Ors v DPP [2004] VSC 516).
  23. In some cases, coronial inquiries and other pre-trial procedures may remove the need for a committal. The accused may already have a brief of evidence and have had the opportunity to cross-examine witnesses. In addition, cross-examination of prosecution witness in a preliminary CPA 2009 s198B hearing inquiry may supplement any previous hearings in relation to particular witnesses (R v Dupas (2006) 14 VR 228; [2006] VSC 481; Williams & Ors v DPP [2004] VSC 516).
  24. The suitability of a s198B hearing as a means of overcoming prejudice associated with the lack of committal proceedings must be judged based on the interests of justice in the case. These interests may include the interest of the community in avoiding unacceptable delays (see R v Dupas (2006) 14 VR 228; [2006] VSC 481).
  25. A s198B hearing may not be suitable where there are many witnesses who would need to be examined, or where the process is expected to take an extended period of time (see Williams & Ors v DPP [2004] VSC 516). See Chapter 17 – Voir Dire for further information.

    Commencement by Direction of a Court

  26. A court may direct that a person be tried for perjury if he or she is of the opinion that the person has committed perjury in an affidavit, oral evidence or other proceeding before the judge (CPA 2009 s415).

Footnotes:

[1] - A committal proceeding that ends with the discharge of the accused is the end of that criminal proceeding. Any indictment based on the charges alleged in the committal proceeding will be a new criminal proceeding commenced by a direct indictment (R v Rushton [1967] VR 842).

[2] - The Public Prosecutions Act 1994 contains some exceptions to this general principle, including where the accused consents, or intends to plead guilty to the new charges.

Last updated: 31 August 2020

In This Chapter

2.1 - Charge-Sheet and Indictment

2.2 - Duplicity

2.3 - Joinder of Charges

2.4 - Severance of Charges

2.5 - Summary and Indictable Offences

2.6 - Time Limits

2.7 - Penalty and offence information