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

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. 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.

Contested Hearings 


When an adult in Victoria is charged with summary offences, the matter is finalised in the Magistrates Court. If the offender pleads guilty, they will proceed to be sentenced. If the person pleads not guilty, the matter will be adjourned for a contested hearing. A contested hearing is when a magistrate hears evidence and submissions from the prosecution and the defence and decides whether the accused has been proven guilty beyond a reasonable doubt or whether the charges should be dismissed.

When a child is charged with summary offences they are dealt with by the Children’s Court. The process for a contested hearing in the Children’s Court is substantially the same as in the Magistrates Court.

Entering a plea

When a person pleads not guilty in a summary matter, they must enter a plea of not guilty. This is how the defendant formally tells the court that they are contesting the charge. A person may plead not guilty because they have a legal defence (for example, they are charged with assault but were acting in self-defence) or because they have a factual defence (such as an alibi).

A person can also make the decision to plead not guilty because they want to ‘put the prosecution to proof.’ This means the prosecution must put all the relevant evidence before the court and establish beyond a reasonable doubt that the accused is guilty. If the prosecution case is not strong, the defendant may choose to put the prosecution to proof even where they do not have a defence and know they will be found guilty if the prosecution can establish all the elements of the offence.

Preparing for contested hearings

Once an accused has entered a plea of not guilty, they or their lawyer will be served with a brief of evidence by the prosecution. A brief of evidence is a copy of all the evidence the prosecution intends to rely on to establish its case at the contested hearing. This may include witness statements, CCTV footage, DNA evidence and police interviews. It is important for the defence to go through the brief of evidence carefully to determine the strength of the prosecution case and the strength of the defence the accused is planning to run.

Contest mention

Once a plea of not guilty has been entered and the brief of evidence has been received, the matter may need to proceed to a contest mention. This is a court mention where the defence and prosecution confirm that they intend to proceed to a contested hearing and let the court know:

  • What issues are in dispute;
  • How many witnesses they will be calling;
  • How many days the contested hearing is likely to take;
  • Any other practical issues (for example, whether interpreters or video links are required).

At the contest mention, the accused can ask the Magistrate for a sentence indication. This is an estimate of the penalty that they would impose if the accused were to plead guilty. If the prosecution has a strong case, it may be advisable for the accused to change their plea at this point. In some cases, the prosecution may be willing to withdraw some charges if the accused pleads guilty to other charges. Alternately, where the prosecution case is weak, the prosecution may agree to withdraw some or all of the charges rather than proceeding with a weak case.

If a matter does not proceed to a contest mention, it will generally go through a case conference. This is a meeting where parties can establish whether there are any issues they can agree on and whether there is any chance of resolving the matter.

Contested hearings

If the matter cannot be resolved, the matter will proceed to the contested hearing.

Prior to the contested hearing, the defence must decide:

  • Which of the prosecution witnesses it will cross-examine;
  • Whether to call any witnesses;
  • Whether the accused should give evidence;
  • Whether any of the prosecution evidence may be inadmissible. If this is the case, the defence should seek pre-trial proceeding known as a voir dire, to determine it admissibility.
  • Obtain character references to tender to the court if the accused is found guilty.

Appeals against orders made after contested hearings

If a party is unhappy with the outcome of a contested hearing, it may appeal to the County Court. An appeal can be against the verdict, the sentence imposed, or both. Both the defence and the prosecution may appeal against the decision, although prosecution appeals are rare.

An appeal must be initiated within 28 days of the date the decision is handed down.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.  

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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