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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Committal Hearings (Vic)


When a person is charged with a serious indictable offence, the accused must first be ‘committed’ to the Supreme Court or County Court by a magistrate. This occurs by way of a committal hearing, which is a proceeding that takes place in the Magistrates Court for an adult or in the Children’s Court for a person under 18. At a committal hearing, a magistrate considers the evidence against the accused and makes an assessment as to whether there is enough evidence to support a finding of guilt against them. If there is not enough evidence for a jury to find them guilty, the magistrate will dismiss the charge. If there is enough evidence to support a conviction, the matter will be committed to a higher court, where it will be finalised via a plea or a trial.

Why do we have committal hearings?

Committal hearings exist so that serious criminal prosecutions do not occur indiscriminately. Where the prosecution lacks sufficient evidence to find a defendant guilty in a higher court, the accused should not be subjected to the stress and expense involved in a trial. Committals also serve to expedite the running of the higher courts and make sure that their time is not wasted hearing matters that do not have reasonable prospects of success.

The defence can also use a committal hearing to test the strength of the prosecution case, to cross-examine prosecution witnesses and find out how they are likely to perform at trial. It enables the defence to prepare and present a case and for the issues in dispute to be clearly defined.

Legislation

In Victoria, the process for committal proceedings is set out in the Criminal Procedure Act. Section 96 of that Act provides that a committal hearing must be held when an accused is charged with an indictable offence, unless the charge is being heard in the Magistrates Court (summarily) or where a direct indictment has been filed.

An indictable offence matter will go through a number of administrative court mentions in the Magistrates Court prior to the committal hearing. Where the matter is a sexual offence where the victim was a child or a person with a cognitive impairment, the court must expedite the matter to the committal hearing stage. This process should usually be completed within two months. The accused must attend all court mentions relating to the committal unless they have been excused from attending by the court (Section 100).

What happens at a committal hearing?

How a committal proceeds depends on whether the defence chooses to test the prosecution case. If the defence indicates to the court that it wants to test the evidence, the matter will proceed to an oral committal. If the defence concedes that there is sufficient evidence for the matter to be committed to a higher court, this can occur by way of a hand up committal.

Oral Committals

At an oral committal, the prosecutor will call each witness to provide evidence-in-chief. This is usually done by the witness taking an oath or affirmation and adopting their written statement and attesting to its truth and accuracy. The defence may then cross-examine each witness. However, the defence does not have to put the defence case to the prosecution witnesses and allow them to comment on it as it must during a trial.

The defence commonly uses an oral committal haring as an opportunity to establish facts. The prosecution must lead all the evidence it plans to rely on at the committal. It is unusual for the defence to call evidence at a committal hearing.

After hearing the evidence at committal, a magistrate may dismiss the charge or commit it to a higher court. If the magistrate chooses to dismiss the charge, this lets the prosecution know that the charge ought not to be proceeded with and the proceeding comes to an end. In rare cases, the prosecution may decide to commence the prosecution by way of a direct indictment. This means that the charge is laid again and taken directly to the higher court. A direct indictment can only be filed by the Director of Public Prosecutions on the advice of a director’s committee.

Hand up committals

If the defence agrees that there is sufficient evidence for an indictable offence charge to be committed to a higher court, it can waive its right to a Committal Hearing and opt for a hand up committal. In a hand-up committal, the brief of evidence will be handed up to the magistrate and the matter will be committed to a higher court. No witnesses will be called as parties are agreed that the matter should be committed to the higher court and the evidence is not being tested. Hand up committals generally occur where the accused is planning to plead guilty.

If you would like legal advice about a criminal matter or any other legal matter please contact Armstrong Legal. 

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