In Victoria, there are several important stages and court procedures that must be completed before a case goes to trial. These stages include committal hearings, directions hearings and pre-trial legal argument (also known as Voir Dire or Basha enquiries). These procedures primarily deal with the evidence that has been compiled against an accused person. They are an important pillar of our justice system, aimed at ensuring an accused person has a fair trial. This article will explain each stage and how they work in practice.
You might also be interested in viewing the videos on our website which explain the pre-trial stages in both the summary and indictable streams: Videos – We are Different – Galbally Parker.
This article will focus on the pre-trial procedure through the indictable stream in advance of trial before a jury.
Pre-Trial Procedures: Committal Hearing
The first pre-trial procedure is known as the committal hearing. This involves a hearing where the evidence relied upon by the prosecution is tested. Committal hearings occur in the Magistrates’ Court to assess the prosecution’s evidence against the accused and whether it is sufficient to support a conviction. The hearing is conducted before a Magistrate (a judicial officer) who decides whether the accused should be sent for trial to a higher court, for example the County Court or Supreme Court. During a committal hearing, the Magistrate hears all the evidence that is contained within the brief of evidence. These will typically include witness statements, photographs, DNA evidence, surveillance evidence and any other evidence that the police have gathered against the accused. In most cases, witnesses are required to come to court in order to be cross-examined by defence counsel. Committal hearings are incredibly important as they are the first stage in which an accused person (or rather their barrister) can cross examine witnesses about their evidence. This can sway whether the case proceeds to Trial and can also impact on the outcome of the Trial, as weak evidence can be excluded following Committal. This is the only stage in the proceedings where the case can be summarily dismissed.
If the Magistrate decides there is enough evidence to go to trial, the case will be committed to the relevant higher court, for example the County Court. If the Magistrate decides there is not enough evidence to support a conviction, they can discharge the accused and the case will not continue. However, in such circumstances the Office of Public Prosecutions is empowered to review the case and the Director of Public Prosecutions can decide to file charges directly in the more senior court. This process is known as a direct indictment. However, having been discharged by a magistrate, the accused is better armed in terms of challenging the case, because they will have heard the Magistrate assess the strengths and weaknesses of the case.
It also puts the accused in a better bargaining position if they are seeking to resolve the matter by pleading guilty to a lesser charge. For example, a Magistrate may find that there is insufficient evidence to commit an accused on a charge of rape, but may be satisfied that there is sufficient evidence for the accused to be found guilty of sexual assault. In these circumstances, the prosecution may accept the plea to the lesser charge. Importantly, also, if an accused is discharged at committal, he or she can make an application for costs. This is not something that is available in the higher courts. In these circumstances, the accused can seek a court order that the Victoria Police pay the majority of the accused’s legal fees.
Pre-Trial Procedures: Directions Hearing
Following the committal stage, if a case is referred to a higher court for Trial, there will be several directions hearings. These are administrative hearings wherein the Court checks the progress of the case since the Committal Hearing. Typically, Directions Hearings ensure that further evidence requested by defence is disclosed and that the case is on track for Trial. It also ensures that dates are locked in, that appropriate orders are made and that any difficulties can be managed by the Judicial Registrar or Judge prior to Trial.
Pre-Trial Procedures: Voir Dire
The final hearing stage before a Trial is conducted is the pre-trial argument, also known as the voir dire. This stage of the proceeding deals with a preliminary question of law and whether aspects of the evidence are admissible. The voir dire is an essential stage of the trial process and can have extensive impacts on the way in which the Trial is run, as it decides what evidence will be included or excluded from the Trial. For this reason, it is commonly referred to as a ‘trial within a trial’.
In Victoria, evidence law is derived from a combination of statute and common law. The main statute is the Evidence Act 2008 (Vic), which covers rules about evidence in criminal court proceedings, including how evidence can be adduced before a court, what evidence is admissible and how to prove matters in court. The voir dire essentially deals with the laws of evidence and whether the evidence against the accused is admissible. Rulings on the admissibility of evidence can have extensive ramifications on the success of the defence case and ultimately whether or not a defendant is found innocent or guilty.
In this stage there are often issues about the law or facts that require the judge to hear evidence from a witness. This often includes assessing a witness’s credibility prior to them giving their evidence before the jury, making findings about facts and applying the law after hearing submissions from both parties. The evidence heard during the voir dire does not form part of the evidence in the Trial, and the jury is not present for this, as hearing evidence that is ruled to be inadmissible may unduly influence their assessment of the admissible evidence against the accused.
Examples of issues that may be raised and determined include:
- Whether evidence which is hearsay is admissible;
- Whether a search warrant was lawful and permitted entry and/or seizure of certain evidence;
- Whether evidence was unlawfully obtained and thus, should be excluded from the proceedings; and
- Whether evidence unfairly prejudices the accused so much that it is rendered inadmissible.
Ultimately, a Judge or Magistrate has the discretion to allow a voir dire and may refuse to allow a voir dire to be held where it is not deemed to be essential to ensure a fair trial.
Pre Trial Procedures: Arraignment
The arraignment is the formal process by which an accused admits to his or her identity and pleads to all charges on the indictment. This means that the charge or charges will be read out to the accused and he or she will be required to enter a plea of guilty or not guilty. The accused must be arraigned in the presence of the jury panel and the jury for the trial must be empaneled from that panel. This is the last formal procedure before the commencement of the Trial.
Get in Touch with Galbally Parker Criminal Defence Lawyers
The intricacies of pre-trial procedures are an indispensable aspect of the legal process. If you or someone you know is facing legal challenges, it is important to secure the best possible outcome by reaching out to an experienced criminal defence lawyer. At Galbally Parker, we can provide the guidance and representation needed to navigate pre-trial procedures effectively. Take the first step towards securing your legal defence, and contact us today. We assist clients across Melbourne with their criminal matters, including Frankston, Moorabbin, Werribee and Dandenong.
