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2.1 - Charge-Sheet and Indictment

  1. The filing of a charge-sheet or an indictment is the formal process which enlivens the jurisdiction of the court over the accused and commences the proceedings in that court (R v McNamara (No 2) [1997] 1 VR 257; R v Parker [1977] VR 22; Ayles v R (2008) 232 CLR 410; [2008] HCA 6; Ciorra v Cole [2004] VSC 416; R v Swansson & Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67; R v Hull (1989) 16 NSWLR 385).
  2. Since 29 January 2019 (in the Supreme Court) and 29 April 2019 (in the County Court), the prosecution has been required to file indictments electronically, through the court’s electronic filing system, unless otherwise specified (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [1], [6]).
  3. The Practice Note identifies four exceptions to the general rule that indictments must be filed electronically:
  4. Where a proceeding is to be commenced by direct indictment, the prosecution may lodge a draft direct indictment electronically. The parties must contact the Court to list the matter for Mention so that a signed paper indictment can be filed in court (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [15]-[17]).
  5. Electronically filed indictments may be amended with leave in court by requesting a printout of the existing indictment, amending the indictment with red pen, and annotating the indictment to note the grant of leave, including who granted leave, the location of the court hearing and the date of amendment. The amended indictment is then returned to the court, scanned and uploaded to the court’s e-filing system (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [20]-[24]).
  6. Indictments must generally be identified with a single case number. If an indictment is to be severed, then the prosecution must obtain a new case number before filing the severed indictment. However, if an accused pleads guilty to multiple matters which originated from multiple Magistrates’ Court case references, the matters may be consolidated to a single indictment which contains all relevant case numbers (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [25]-[37]).
  7. Electronic filing of an indictment removes the need for a paper indictment to also be filed in open court unless otherwise specified in the Practice Note or another Act or Rule (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [10]; c.f. R v Holden [2001] VSCA 63).
  8. The Joint Practice Note records the following benefits to electronic filing of indictments:
  9. An indictment must contain the signature of an authorised person. An electronic signature may be used, provided the requirements of Electronic Transactions (Victoria) Act 2000 s 9 are met. The electronic signature must be a handwritten depiction of the authorised person’s name, and not merely their typed name (Joint Jurisdictional Practice Note for the Electronic Filing of Indictments, [9]).
  10. In appropriate cases, the Commonwealth and State prosecuting bodies may produce a joint indictment. This indictment is a single document that alleges breaches of both Commonwealth and State offences. A joint indictment must comply with the law of indictments for both jurisdictions (see, e.g., R v Holden [2001] VSCA 63; R v Nicola [1987] VR 1040).[1]
  11. Notations on the charge-sheet or indictment are not part of the formal record of the court. These notations are treated as minutes or memoranda and may be ignored if they are wrong. The formal record of the court is constituted by a separate document called the "quadruplicate". The quadruplicate must be signed and dispatched before any order of the court passes into the record (R v Saxon [1998] 1 VR 503; R v TSR (2002) 5 VR 627; [2002] VSCA 87).
  12. A criminal proceeding may only be governed by a single indictment at a time. This has been described as the rule of "one indictment, one jury". It is not permissible to try a person on more than one indictment simultaneously, even with the consent of the accused. Multiple offences must be dealt with in separate proceedings or, if they are related offences, in the one indictment (R v Landy [1943] VLR 73; DPP v Ferguson [2004] VSC 261; R v Callaghan &Grant, Unreported, VSCA, 12 December 1996; R v Swansson & Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67; Crane v DPP [1921] 2 AC 299; R v Dennis [1924] 1 KB 867).
  13. The rule of "one indictment, one jury" only applies to indictments. A magistrate may hear proceedings summarily under multiple charge-sheets following an application by either party. In practice, this is usually only granted to allow consolidated pleas of guilty (CPA 2009 s57; Munday v Gill (1930) 44 CLR 38).
  14. In a proceeding against multiple accused, the prosecution must file a separate charge-sheet for each accused (CPA 2009 s56).
  15. While the prosecution has an unreviewable prerogative to choose which matters to prosecute, the power must be exercised in a manner consistent with fairness towards the accused. The prosecution should not include every conceivable charge on a charge-sheet or indictment as this is unfair and tends to impede the proper disposition of the more serious offences. The court may order a stay of some proceedings until further order to ensure a fair trial (R v Siugzdinis & Mauri (1984) 32 NTR 1; R v Ambrose (1973) 57 Cr App R 538; R v Slade (1982) 7 A Crim R 43; Maxwell v R (1996) 184 CLR 501; [1996] HCA 46; R v PHW [2004] VSC 411).

Footnotes:

[1] - This dual qualification requirement may be satisfied by a single person where he or she is authorised to sign indictments by the Commonwealth Director of Public Prosecutions and also holds an appointment with the consent of the Commonwealth Attorney-General to prosecute state offences (Director of Public Prosecutions Act 1983 s9, s17).

Last updated: 31 August 2020

In This Section

2.1.1 - Contents of Charge-Sheet or Indictment

2.1.2 - Particulars

2.1.3 - Amendment of Charge-Sheet or Indictment

2.1.4 - "Filing Over" - Subsequent Charge-Sheets or Indictments

2.1.5 - Formal Requirements for a Charge-Sheet or Indictment

2.1.6 - Defects in Charge-Sheet and Indictment

See Also

Chapter 2 – Commencement of Proceedings

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