5.1.1 - Directions Hearings

1. The court may conduct directions hearings at any time, except during the trial.
2. At a directions hearing, the court may make or vary any direction or order, or do anything the court considers necessary for the fair and efficient conduct of the proceeding. For example, the court may:
   • require the accused to indicate whether he or she is legally represented and has funding for continued representation for the trial;
   • require each party to notify the court of any pre-trial issues it seeks to raise and any pre-trial orders it seeks;
   • set a timetable for the hearing of pre-trial issues or applications for orders;
   • if relevant, require the parties to advise the court on the availability of the complainant and the accused for a special hearing under Division 6 of Part 8.2 of the CPA 2009, and direction that a special hearing be held;
   • require the parties to estimate the expected length of the trial;
   • require the parties to advise on the estimated number of witnesses, the availability of witnesses other than the accused and any requirements of those witnesses or interpreters;
   • order a party to make, file or serve any written or oral material required for the purpose of the proceeding;
   • order the prosecution to file and serve a copy of any material the prosecution intends to rely upon at the trial;
   • determine objections relating to the disclosure of information or material by the prosecution;
   • allow a party to amend a document it has prepared for the purposes of the proceeding;
   • determine an application for a sentence indication (CPA 2009 s179, s181).
3. A judge may also make any order or direction that can be made or decided before trial (CPA 2009 s181(3)). This allows a judge to make pre-trial orders and rulings on admissibility and issues of law under s199 of the CPA 2009 at a directions hearing.
4. If the prosecution has filed an indictment, the court may arraign the accused at a directions hearing. If the accused pleads not guilty to one or more charges and indicates his or her intention to plead not guilty to all charges, it is not necessary to read the remaining charges to the accused and he or she must be taken to have pleaded not guilty to those charges (CPA 2009 s180).[1]

   Supreme Court Directions Hearings

5. At the end of the committal hearing, the Magistrates’ Court will contact the Supreme Court Principal Registry to schedule a Post-Committal Directions Hearing (PCDH) (Supreme Court of Victoria, Practice Note SC CR 8, [4.3]).
6. The PCDH will normally be held before the judicial registrar. Counsel who appeared at the committal are expected to appear at the PCDH (Supreme Court of Victoria, Practice Note SC CR 8, [4.2], [4.8])
7. The PCDH will normally be listed within a day or two of the completion of the committal hearing. However, if the committal hearing was conducted outside the Melbourne metropolitan area, then the PCDH will normally occur within five days of the completion of the committal (Supreme Court of Victoria, Practice Note SC CR 8).
8. The prosecution is not required to file an indictment at the Post-Committal Directions Hearing, although they must provide a police summary prior to the hearing (Supreme Court of Victoria, Practice Note SC CR 8, [4.7]).
9. The Magistrates’ Court will forward relevant documents to the Supreme Court registry on the day of committal (Supreme Court of Victoria, Practice Note SC CR 8, [4.3]).
10. Unless the accused was bailed to appear at the Supreme Court, the accused does not need to be present for the PCDH, but will appear by video-link (Supreme Court of Victoria, Practice Note SC CR 8, [4.6]).
11. If the accused intends to plead guilty, the Judicial Registrar will set a timetable and a date for the plea hearing, and may arraign the accused (Supreme Court of Victoria, Practice Note SC CR 8, [4.9]).
12. In a contested case, the Judicial Registrar will set a timetable for the filing of pre-trial documents and notices, and schedule a directions hearing before the Principal Judge. The Practice Note provides a standard timetable, which may be modified in a more complex case, if there are fitness to be tried issues, or if resolution may be possible (Supreme Court of Victoria, Practice Note SC CR 8, [4.10]-[4.12]).
13. At the Directions Hearing before the Principal Judge, trial counsel are expected to appear. In addition to the matters identified in CPA 2009 s 181(2), counsel are expected to identify:
    • Any potential problems with legal representation or funding;
    • Any potential issues in relation to witness availability;
    • Whether the prosecution have any investigations that have not been completed;
    • What, if any, further notices of additional evidence are anticipated;
    • What, if any, Basha hearings are anticipated;
    • Any outstanding requests for the provision of documents or information from the prosecution;
    • When any additional expert reports will be provided by either side;
    • Any anticipated subpoena issues, including whether the defence intend to subpoena documents from third parties, the production of which is likely to be substantial or contested;
    • Whether a further directions hearing needs to be held to deal with any of the above matters;
    • Any specific technology requirements for the trial;
    • Whether the original trial estimate needs to be revised; and
    • Whether the case would benefit from being referred to a Judicial Registrar or Judge for a case conference (Supreme Court of Victoria, Practice Note SC CR 8, [5.5])
14. A final directions hearing is held at least six weeks before the trial date. Trial counsel are expected to attend the final directions hearing. The purpose of the final directions hearing is to ensure all orders for filing documentation are complied with and the trial is ready to proceed on the listed trial date (Supreme Court of Victoria, Practice Note SC CR 8, [6.1]-[6.3])

    Supreme Court Case Conference

15. The Judicial Registrar of the Criminal Division may conduct a case conference at any time before the trial (Supreme Court (Criminal Procedure) Rules 2017 r4.07(1)).
16. The purpose of a case conference is to assist in the fair and efficient conduct of the trial. This includes clearly identifying what is in dispute and ensuring the trial is ready to begin on the listed trial date (Supreme Court (Criminal Procedure) Rules 2017 r4.07(2)).
17. At a case conference, the DPP must, subject to any substantial concerns about a witness’ personal safety:

    (i) give notice of the name of any witness who may be called as a Crown witness upon the trial and whose name does not appear on the indictment as a witness or as an additional witness;

    (ii) give notice of the substance of the evidence proposed to be adduced from each such witness (whether by way of provision of a copy of a statement made by the witness or otherwise);

    (iii) provide to the Judicial Registrar-Criminal Division any information that the Judicial Registrar-Criminal Division may reasonably require as to the availability of each Crown witness;

    (iv) notify the Judicial Registrar-Criminal Division and the accused of the name of any potential Crown witness whose deposition the Crown proposes to apply to tender in evidence and the grounds of any such proposed application (Supreme Court (Criminal Procedure) Rules 2017 r4.07(4)(a))

18. The accused or the accused’s legal practitioner must be prepared to certify that the accused is ready to proceed on the proposed trial date (Supreme Court (Criminal Procedure) Rules 2017 r4.07(4)(b)).
19. Nothing said by or on behalf of an accused at a case conference, or a failure to answer a question at a case conference, can be used in any subsequent trial or made the subject of commence at that trial (Supreme Court (Criminal Procedure) Rules 2017 r4.07(5)).

    County Court Directions Hearings

20. The County Court Criminal Division Practice Note PNCR 1-2015 sets out the procedure for directions hearings in the County Court. Historically, the court used different terminology for the first directions hearing, depending on whether the matter involved a sexual offence or not. Now, the first directions hearing is called an Initial Directions Hearing for all matters.
21. The time for holding the Initial Directions Hearing for Melbourne matters is set out in the following table.

    Hearing Type	Time for holding hearing
    Initial Directions Hearing (IDH) where no charges involve a sexual offence against a child or cognitively impaired complainant	Next sitting day following conclusion of committal proceeding
    IDH involving sexual offence against a child or cognitively impaired complainant	At least 28 days after the accused is committed for trial

22. The following apply to the initial directions hearings in Melbourne:
    • The accused must attend the initial directions hearings;
    • Accused in custody must attend the directions hearing by video link unless the accused is committed after 4.30pm, the Court orders otherwise or a party makes a request to attend in person;
    • The practitioner who appeared at the committal must appear at the IDH;
    • Both parties must be fully familiar with the matter;
    • Practitioners are not required to robe; and
    • Both parties must be prepared to answer questions about the progress of the matter (County Court Criminal Division Practice Note, PNCR 1-2015, [2.6]-[2.11]).
23. The IDH is usually listed in Court 2-10 (if it involves a sexual offence) or 2-9 (otherwise) at 9am. The prosecution must file the police summary by eLodgement by 4.30pm on the date of committal, unless the accused was committed after 4.15pm, in which case the summary must be filed by 8.45am on the day of the initial directions hearing. The defence must file a notice that legal practitioner acts by eLodgement and serve a copy on the prosecution by 8.45am on the day of the initial directions hearing (County Court Criminal Division Practice Note, PNCR 1-2015, [2.2]-[2.6]).
24. At the IDH, the Judge will either adjourn for final directions hearing if a trial date is set or adjourn for a further initial directions hearing or mention.
25. At an IDH, the Judge may ask:
    • Whether counsel are the same as at the committal;
    • The duration of the committal;
    • Whether all required witnesses attended;
    • Do the defence intend to apply for preparatory cross-examination under CPA 2009 s 198B and could preparatory cross-examination help in resolving the matter?
    • What factual issues are in dispute and what issues are not in dispute;
    • How can the parties narrow the issues in dispute;
    • What is the status of any plea offers;
    • Whether a Crown Prosecutor has been involved;
    • Whether there are any outstanding disclosure issues;
    • The status of any co-accused;
    • The admissions, if any, likely to be sought or offered;
    • Is an Alibi notice required;
    • The status of any enquiries into the question of fitness to stand trial or the defence of mental impairment;
    • The need for any suppression orders or other similar orders;
    • If the matter will proceed to trial:
      • The number of witnesses
      • Any expert witness issues
      • Any overseas witnesses
      • Do any witnesses require s18 or s128 advice
      • Will an application be made for any witnesses to give evidence by alternative arrangements (video link, remote room or a screen)
      • Is there an argument for a priority listing
      • Will there be an application for severance
      • How long will the trial run and how was that determined
      • What, if any, notices under the Evidence Act will be served
      • Will any subpoenas be sought
      • Any pre-trial issues
      • Is funding in place
      • Is the accused currently in a youth justice facility
    • Any pre-trial issues specific to sexual offences, including:
      • Competency or cognitive impairment of the complainant, and whether the defence relies on expert evidence;
      • Separate trial applications;
      • Applications under CPA 2009 s 342 for leave to cross-examine on the complainant’s sexual activities;
      • Prosecution evidence that will be objected to, including previous representations, tendency evidence, coincidence evidence, hearsay evidence and pre-recorded evidence;
      • Confidential communications (County Court Criminal Division Practice Note, PNCR 1-2015,[2.11]).

    Initial Directions Hearings for sexual offences against a child or a cognitively impaired person

26. An Initial Directions Hearings for sexual offences against a child or cognitively impaired complainant will be listed at least 28 days after the committal. The prosecution must file by eLodgement and serve on the defence within 14 days of the committal the hearing the following documents:
    • The indictment;
    • Prosecution Opening;
    • Depositions;
    • Prosecution Witness Information Sheet;
    • A Family Violence Checklist (where appropriate);
    • Jury Directions Act Notices;
    • Evidence Act Notices (County Court Criminal Division Practice Note, PNCR 1-2015, [3.2]-[3.4]).
27. The defence must file a Notice that Legal Practitioner Acts by eLodgement and serve a copy on the prosecution within 5 days of the commital (County Court Criminal Division Practice Note, PNCR 1-2015, [3.5]).
28. The defence must also file a Form 198A – Application for Pre-Trial Cross-Examination and any confidential communications applications at least 7 days before the IDH (County Court Criminal Division Practice Note, PNCR 1-2015, [3.6]-[3.7]).
29. The parties must be prepared to answer the following questions at the IDH:
    • Could pre-trial cross-examination help resolved the matter?
    • How long would pre-trial cross-examination take?
    • Are there unsuitable dates for witnesses required for pre-trial cross-examination?
    • What are the factual issues in dispute and what is not in dispute?
    • How can the prosecution and defence narrow the issues?
    • Have there been any plea offers made or will there be?
    • Have discussions been had with a Crown Prosecutor?
    • Are there any outstanding disclosure issues?
    • What is the status of any co-accused?
    • What admissions are likely to be sought or offered?
    • Do the defence intend to file an Alibi notice?
    • Was fitness to stand trial reserved at committal or is it an issue in the proceeding? Are there any issues obtaining psychiatric reports on fitness or mental impairment?
    • Will non-publication orders be sought?
    • If the matter will proceed as a trial:
      • How many witnesses?
      • Are there any expert witness issues?
      • Will complainants seek to give evidence without alternative arrangements?
      • Are there overseas witnesses?
      • Do witnesses required s 18 or s 128 advice?
      • Will any witnesses seek to give evidence by alternative arrangements?
      • Are there reasons for a priority listing?
      • How long will the trial take and how was that estimate reached?
      • Will any subpoenas be sought, including leave to seek subpoenas that compel the production of protected evidence?
      • Will a party seek to lead recorded evidence at the trial?
      • Does the prosecution intend to adduce tendency, coincidence or hearsay evidence?
      • What is likely to be in dispute at the trial?
      • Are there any pre-trial issues relating to:
        • Competency or cognitive impairment of the complainant, and whether the defence relies on expert evidence;
        • Separate trial applications;
        • Applications under CPA 2009 s 342 for leave to cross-examine on the complainant’s sexual activities;
        • Prosecution evidence that will be objected to, including previous representations, tendency evidence, coincidence evidence, hearsay evidence and pre-recorded evidence;
        • Are there documents which may need to be produced at trial and will such documents need to be the subject of a subpoena.
      • Are funding arrangements in place for the trial?
      • Is the accused currently in a youth justice facility? (County Court Criminal Division Practice Note, PNCR 1-2015, [3.12]).
30. At the end of the IDH, the proceeding will be adjourned for a:
    • s 198A pre-trial cross-examination hearing;
    • final directions hearing;
    • special hearing; or
    • trial (County Court Criminal Division Practice Note, PNCR 1-2015, [3.13]).

    Circuit Directions Hearing

31. When an accused is committed for trial to a circuit location, the matter will be listed for a Circuit Directions Hearing in the next Circuit Directions Hearing list for that location.
32. The prosecution must file the Police Summary and the defence must file and serve a Notice that Legal Practitioner Acts by 4.30pm of the day after the accused is committed (County Court Criminal Division Practice Note, PNCR 1-2015, [4.2]-[4.5]).
33. Where the matter involves a sexual offence against a complainant who is a child or a person with a cognitive impairment, the prosecution must also file and serve the following documents within 14 days of the committal:
    • The indictment;
    • Prosecution Opening;
    • Depositions
    • Prosecution Witness Information Sheet
    • A Family Violence Checklist (where appropriate)
    • Jury Directions Act Notices
    • Evidence Act Notices
34. The following apply to the Circuit Directions Hearing:
    • Both parties must be fully familiar with the matter;
    • Practitioners are not required to robe;
    • Parties may appear from Melbourne, the corresponding circuit court location, or, by prior arrangement, any other Victorian court location. Leave is required to appear from a non-Victorian court or interstate location;
    • An accused on bail must attend the Directions Hearing, but can appear by video link from any County Court location;
    • An accused in custody is not required to attend in person or by video link unless the Court orders or at the written request of the parties (County Court Criminal Division Practice Note, PNCR 1-2015, [4.8]-[4.14]).
35. At the end of the Circuit Directions Hearing, the matter may be listed for:
    • Further circuit directions hearing or circuit trial, if it is a general matter;
    • Further circuit directions hearing, directions hearing in the sexual offences list at Melbourne or circuit trial, if the case involves sexual offences which are not against a child or a person with a cognitive impairment;
    • Further circuit directions hearing, directions hearing in the sexual offences list at Melbourne, s 189A application or hearing, or s 32C application if confidential communications are sought (County Court Criminal Division Practice Note, PNCR 1-2015, [4.15]-[4.17]).

    Final Directions Hearings

36. The Final Directions Hearing is fixed at an Initial Directions Hearing and will be held approximately 6-8 weeks before the trial is due to commence.
37. Where the Final Directions Hearing is fixed, the Court makes orders of the kind set out in Attachment 2 or Attachment 3 of the County Court Criminal Division Practice Note PNCR 1-2015, depending on whether or not the case involves a sexual offence against a complainant who is a child or is cognitively impaired.
38. The parties must file the following documents by eLodgement before the final directions hearing:
    • Prosecution documents that must be filed at least 21 days before the hearing:
      • The indictment;
      • Prosecution Opening;
      • Full list of all pre-trial issues;
      • Notice of Pre-Trial admissions;
      • Notice of Incriminating Conduct (Jury Directions Act 2015 s 19);
      • Notices in relation to evidence sought to be adduced with full details of the evidence the subject of the notice, including:
        • Heasay Notice (Evidence Act 2008 ss 65, 67);
        • Tendency Notice (Evidence Act 2008 s 97);
        • Coincidence Notice (Evidence Act 2008 s 98);
        • Expert Certificate as Opinion Evidence Notice (Evidence Act 2008 s 177)
    • Defence documents that must be filed at least 7 days before the hearing:
      • Defence response to the Prosecution Opening
      • Full list of all pre-trial issues;
      • Notice of pre-trial admissions;
      • Notices in relation to evidence sought to be adduced with full details of the evidence the subject of the notice, including:
        • Hearsay Notice (Evidence Act 2008 ss 65, 67);
        • Tendency Notice (Evidence Act 2008 s 97);
        • Coincidence Notice (Evidence Act 2008 s 98);
        • Expert Certificate as Opinion Evidence Notice (Evidence Act 2008 s 177) (County Court Criminal Division Practice Note, PNCR 1-2015, [6.3]-[6.4]).
39. Counsel for the trial must appear at the Final Directions Hearing and must inform of the court of any matter that may affect whether the trial will proceed at the listed time, such as:
    • unresolved plea discussions;
    • unresolved issues concerning disclosure of evidence;
    • unresolved subpoenas;
    • any pre-trial issues;
    • further pre-trial applications, such as leave to cross-examine the complainant on his or her sexual history, or to produce or adduce confidential communications, or to excuse a spouse, de facto partner, parent or child of the accused from giving evidence;
    • any special arrangements required for the trial, such as interpreters, video link from overseas and security issues;
    • any other matter which may prevent the trial from proceeding, such as witness unavailability or lack of funding;
    • current estimates for pre-trial hearings, including Special Hearings in sexual offence matters involving a child or cognitively impaired complainant; and
    • current trial duration estimates;
    • whether any witnesses require independent legal advice (County Court Criminal Division Practice Note, PNCR 1-2015, [6.5])

    Evidentiary status of statements by accused

40. In the Supreme Court, statements by or on behalf of the accused at a case conference, or an accused’s failure to answer a question, may not be used in a subsequent trial or made the subject of comment at a trial. This does not apply to prevent the accused from relying on an indication to plead guilty (Supreme Court (Criminal Procedure) Rules 2019 r4.07(5)).
41. Similarly, in the County Court, statements by or on behalf of the accused at a pre-trial conference or directions hearing or an accused’s failure to answer questions not be used in a subsequent trial or made the subject of comment (County Court Criminal Procedure Rules 2019 r2.06).

Footnotes:

[1] - An arraignment at a directions hearing does not mark the commencement of the trial (CPA 2009 s210, s217). In addition, the process of entering a plea of not guilty to all charges through a representative plea is not available at an arraignment before the jury (Compare CPA 2009 s215).

Last updated: 31 August 2020