The court process
The main steps in a criminal case
If police investigate a crime and decide to lay serious charges against a person, they will refer the case to the OPP to prosecute.
This page explains:
- the main steps in the court process
- the different court process for mental impairment and unfitness cases
- what happens if a case is referred to the Drug and Alcohol Treatment Court
- what happens if a case is heard as part of a regional circuit
- what happens in a County Court appeal
Here is a flowchart of the court process.
Further information about what to expect if you go to court or give evidence is here Going to court.
This animated video explains the main steps in the court process.
The main steps in a criminal case
Police investigate the crime
After a crime is reported, there is a police investigation. Police will take statements from victims and witnesses about the crime. Police might also collect other evidence, such as objects from the crime scene, photos of the scene or CCTV footage of the incident. These are called exhibits.
Police put the witness statements and exhibits together in a brief of evidence.
You can find further information about reporting a crime and making a statement on the Victims of Crime website.
Police decide whether to lay charges
After police finish the investigation, they will decide whether there is enough evidence to lay any charges. If police decide to lay charges, the accused person must go to court.
If police refer the case to the OPP
If police charge a person with a serious crime (an indictable crime), the case will be referred to the OPP. The OPP will prosecute the case against the accused person.
There are two sides in a criminal case – the prosecution and the defence. The prosecution presents the case against the accused person in court. The prosecution must be independent, fair and impartial. The accused person and their lawyer are called the defence.
Cases start in the Magistrates’ Court, known as the committal stage. If there is enough evidence, a case will then move to either the County Court or the Supreme Court.
Cases are usually heard in a court that is close to where the crime was committed. The OPP prosecutes cases in Melbourne courts and regional courts.
The main hearings in the Magistrates’ Court are the:
- filing hearing
- committal mention
The first hearing in the Magistrates’ Court is called the filing hearing. At the filing hearing, the court will set dates for:
- police to provide the brief of evidence to the accused person and the OPP
- the committal mention hearing.
The committal mention is a short hearing to confirm whether any witnesses will be required to give evidence at the committal hearing, and to set a date for the committal hearing.
If the accused person does not wish to have a committal hearing and chooses to plead guilty or not guilty at the committal mention, the case will go directly to the County Court or Supreme Court.
The committal hearing is the first hearing where victims and witnesses might have to give evidence. Not every victim and witness who has made a statement will have to give evidence at the committal hearing.
The magistrate will consider the evidence and decide if there is enough evidence for the case to move to the County Court or the Supreme Court.
If the magistrate decides that there is not enough evidence the case will usually end there. The accused person is free to go. In limited cases, the DPP can still bring charges against the accused person in a higher court.
If the magistrate decides that there is enough evidence the case will move to the County Court or Supreme Court.
At the end of the committal hearing, the accused person can plead guilty or not guilty to the charges.
The case moves to the County Court or Supreme Court
If the accused person pleads guilty, there will be a plea hearing in the County Court or Supreme Court. You can read more about this below.
If the accused person pleads not guilty, the case will move to the County Court or Supreme Court. If the case moves to a higher court, this does not mean that the case will go to trial, or that the accused person will be found guilty of the charges.
The OPP will carefully review the evidence and a Crown Prosecutor will decide whether the case can go to trial. A case can only go to trial if it meets the prosecution test:
- There must be a reasonable prospect of conviction.
- The prosecution must be in the public interest.
If a case does not meet the prosecution test, it cannot go ahead, and it must be discontinued. This can happen at any stage. The Discontinuance Review Framework sets out how decisions to discontinue a case are made.
This video explains how decisions to discontinue a case are made and how this might feel for victims.
If the accused person pleads not guilty, and the case meets the prosecution test, the case will go to trial. A trial is before a judge and a jury of 12 people.
At the trial the prosecution and defence present all of the relevant and admissible evidence to the jury. Victims and witnesses may have to give evidence at the trial. The jury must decide whether or not the accused person is guilty.
A trial can run for several days or several weeks depending on the number of charges, the evidence and the legal issues.
The main steps in a trial
- Pre-trial hearings
In some cases, the prosecution, defence, and the judge will need to discuss legal issues which may affect how the trial is run. These discussions are called pre-trial hearings. Pre-trial hearings can be short (less than a day) or long (several weeks).
- Jury selection
After the pre-trial hearings the jury will be selected from a large group of possible jurors.
After the jury is selected the accused will be asked in court whether they plead guilty or not guilty to the charges. This is called the arraignment.
- Judge’s opening remarks
The judge will tell the jury what the trial is about
- Opening addresses
The prosecutor and the defence barrister give their opening addresses to the jury.
Prosecution witnesses give evidence first. For each witness:
- The prosecutor will take the witness through their evidence. This is called evidence-in-chief.
- The defence barrister may ask the witness questions to test their evidence. This is called cross-examination.
- The prosecutor can ask the witness further questions to clarify anything that was raised in cross-examination. This is called re-examination.
After the prosecution witnesses have finished giving evidence, the defence may call any defence witnesses.
- Closing addresses
The prosecutor and the defence barrister give their closing addresses to the jury.
- Judge’s charge
After the closing addresses the judge will:
- summarise the evidence and the arguments for the jury
- tell the jury about the law that they must apply to the evidence when deciding on a verdict.
- Jury deliberation
The jury will then leave the courtroom to decide whether the accused person is guilty or not guilty of the crime.
The jury must make their decision based on the evidence at the trial. The jury can only convict an accused person if they are satisfied of guilt beyond reasonable doubt. This is a very high test.
There is no time limit for the jury to make its decision. Waiting for a jury verdict can be a challenging and nervous time for people who are involved in the case.
- Jury verdict
When the jury have reached the same decision, they will come back into the courtroom. The jury foreperson will tell the court whether the jury find the accused person guilty or not guilty.
Sometimes if the jury cannot agree, they will be sent home and the trial may be heard again before a new jury at a later date.
If the jury finds the accused not guilty of the crime, the accused person is free to go. This is called an acquittal. The prosecution cannot appeal against an acquittal.
If the jury finds the accused guilty of the crime, the judge must decide what the sentence will be.
If the accused person pleads guilty or is found guilty at trial, there will be a plea hearing. At this stage, the accused person is called the offender.
Victims and witnesses can attend the plea hearing
Victims, witnesses and family members can attend the plea hearing.
If victims, witnesses or family members are concerned about being in the presence of the offender, they can talk to the OPP solicitor or social worker. It may be possible to watch the plea hearing via a video link from a room away from the court.
The prosecution and defence provide information to the judge
At the plea hearing the prosecution and defence present information that they want the judge to consider when deciding on the sentence.
The prosecutor will read a summary of the offending and tell the judge about any relevant legal principles.
The defence will also present information to the judge. The defence may call people to give character evidence or psychological or medical evidence about the offender. In some cases, this can be difficult for victims and family members to hear.
Victims can make a Victim Impact Statement
Victims can tell the court in their own words about the impact of the crime on them. They can do this by making a Victim Impact Statement (VIS).
Victims have a choice about how their VIS is presented to the court:
- A victim can read their VIS aloud at the plea hearing.
- The prosecutor can read the VIS aloud at the plea hearing.
- The prosecutor can hand the VIS to the judge without reading it aloud.
The offender will be sentenced after the plea hearing
The sentencing hearing may take place on the same day as the plea hearing, or on a later date decided by the judge.
This video explains what to expect at the plea hearing and sentencing hearing.
The court, represented by the judge, decides on the sentence. The judge must decide the sentence according to law. At the sentencing hearing the judge will tell the offender what their sentence is and explain the reasons for the sentence.
Factors the judge will consider
To decide on the appropriate sentence, the judge will consider a number of factors including:
- the impact of the crime on the victim
- the nature and seriousness of the crime
- the offender’s personal circumstances such as their age, background and prospects for rehabilitation
- the offender’s past criminal history
- whether the offender pleaded guilty
- the need to deter the offender from committing further crimes
- the need to deter other people from committing similar crimes.
Types of sentences
There are different kinds of sentences in Victoria including:
- orders requiring the offender to perform community work or attend treatment or drug or alcohol counselling
- good behaviour bonds.
Some offenders may be eligible to have their case heard in the Drug and Alcohol Treatment Court and to be placed on a Drug and Alcohol Treatment Order. More information on the Drug and Alcohol Treatment Court is available below.
The judge will take into account any time the offender has already served in custody. This is called pre-sentence detention.
It is very rare for an offender to receive the maximum penalty.
The maximum penalty is set by Parliament and provides a reference point for the judge when sentencing. The maximum penalty represents the penalty for the most serious example of an offence committed by the most serious kind of offender.
What is a total effective sentence? What is a non-parole period?
If the judge sentences an offender to prison, in certain cases the judge will set an upper and lower limit for the prison sentence.
The lower limit is called the non-parole period. The non-parole period is the minimum amount of time that the offender must serve in prison before they may be considered eligible for parole.
If there is more than one offence, the upper limit of the sentence is called the total effective sentence.
Appealing a sentence
The offender can appeal against the sentence.
In limited cases, the DPP can also appeal against a sentence.
You can read more about appeals below.
Further information about sentencing
Further information about sentencing is available on the Sentencing Advisory Council website.
This video explains the sentencing process and how this might feel for victims.
Appeals are heard in the Court of Appeal. This is the highest court in Victoria. Sometimes further appeals may be made to the High Court of Australia.
Victims and witnesses do not give evidence at the appeal. The evidence they have given at any trial and any Victim Impact Statements will be available to the appeal court.
Victims and witnesses may attend appeal hearings. An appeal is very different to a trial and involves legal and technical discussions about the law.
Appeals by the offender against conviction or sentence
An offender may apply to appeal against:
- conviction (guilty verdict)
An offender has 28 days from the date they are sentenced to lodge an appeal. Sometimes the court will extend this time.
Appeals by the DPP against sentence
The DPP may appeal against the sentence if the DPP considers that the sentence is manifestly inadequate.
The DPP cannot appeal against a not-guilty verdict.
This video explains how the DPP decides whether to appeal a sentence, how this might feel for victims, and the possible outcomes of an appeal.
Possible outcomes of an appeal against sentence
If an offender appeals the sentence the possible outcomes are:
- the sentence will be reduced
- the sentence will stay the same.
If the DPP appeals the sentence the possible outcomes are:
- the sentence will be increased
- the sentence will stay the same.
Possible outcomes of an appeal against conviction
If an offender appeals against their conviction the possible outcomes are:
- the appeal is dismissed, and the conviction stands
- the appeal is allowed.
If a conviction appeal is allowed, the judge can order a re-trial or, if there has been a substantial miscarriage of justice, the judge may set aside the conviction.
If the Court of Appeal orders a re-trial, the OPP solicitor or the VWAS social worker will contact victims to let them know and confirm the date and time of the re-trial. It is possible that witnesses who gave evidence at the first trial may be called to give evidence again.
Information you will receive about any appeal
If you are a victim in a case where an appeal is lodged against a conviction or sentence, the OPP will contact you to let you know that an appeal has been lodged.
If you are a witness, but not a victim, and would like to be told about any appeal, you should talk to the OPP solicitor or VWAS social worker.
Mental impairment and unfitness cases
A different court process applies if the accused person states that they:
- are unfit to stand trial
- were suffering from a mental impairment at the time the offence.
The law that applies to this court process is the Crimes (Mental Impairment & Unfitness to be Tried Act) 1997. These cases are sometimes called CMIA cases. They are usually heard in the County Court or Supreme Court.
Mental impairment and unfitness
A person had a mental impairment if they:
- had a severe mental illness or disorder at the time of the offending
- did not understand what they were doing or did not understand that what they were doing was wrong.
A person is unfit to stand trial if their current mental state means that they cannot:
- understand the charges, court process or evidence
- enter a plea of guilty or not guilty
- provide instructions to their lawyer.
Mental impairment and unfitness must be established by expert medical evidence.
The court process for CMIA cases
The court processes are different and designed to establish whether the accused person:
- is fit to stand trial and should face a criminal trial before a judge and jury
- is unfit to stand trial but committed the crime
- if unfit to stand trial and is not guilty of the crime
- committed the crime but is not guilty because of their mental impairment.
The court will generally place a person on a supervision order if the person is:
- unfit to stand trial but has been found to have committed the crime
- found to have committed the crime but is not guilty because of their mental impairment.
A supervision order can be:
- served in custody (custodial supervision order)
- served in the community (non-custodial supervision order).
Before the court makes a supervision order, victims and family members have an opportunity to make a Victim and Family Member Report, telling the court about the impact of the crime on them.
Making a Victim and Family Member Report
You can make a Victim and Family Member Report if you are:
- a victim
- a family member of a victim
- a family member of the person who committed the crime.
You can choose whether or not to make a Victim and Family Member Report. Making a report provides you with an opportunity to express your views about what the person has done and the impact of their conduct on you.
Victim and Family Member Reports help the court decide:
- what conditions to include in a supervision order
- whether or not to grant a person on a supervision order leave of absence from custody during their supervision order
- whether to change or cancel a supervision order.
If you would like to make a Victim and Family Member Report you can use the form in the brochure below. You do not have to use this form, but your report must be in the form of a statutory declaration otherwise the court may not accept it.
This brochure includes:
- a form for making a Victim and Family Member Report
- information about the court process when a mentally ill or cognitively impaired person is prosecuted for a serious offence.
Drug and Alcohol Treatment Court
The Drug and Alcohol Treatment Court provides Drug and Alcohol Treatment Orders (DATO) as a sentencing option for people with drug or alcohol dependency who have committed criminal offences.
Eligible cases can be referred to the Drug and Alcohol Treatment Court. The court may place a person on a Drug and Alcohol Treatment Order (DATO). If this happens, the person is called a participant.
A DATO focuses on the rehabilitation and treatment of participants living with a drug dependency in the Victorian community. The purpose of a DATO is to:
- help the rehabilitation of the offender by providing a therapeutic drug or alcohol treatment and supervision regime (supervised by a judge)
- protect the community by reducing criminal activity associated with drug or alcohol dependency.
Cases that can be referred to the Drug and Alcohol Treatment Court
To be eligible for a Drug and Alcohol Treatment Order a person must:
- plead guilty to the offence
- prove that drug and/or alcohol dependency contributed to their offending
- be facing a prison term of two years or less in the Magistrates’ Court, or four years or less in the County Court
- live within the catchment area of a Drug and Alcohol Treatment Court.
A person will not be eligible if they are:
- facing charges which involve sexual offending or infliction of actual bodily harm
- subject to a parole or sentencing order of the Victorian County Court or Supreme Court.
Drug and Alcohol Treatment Orders
A Drug and Alcohol Treatment Order (DATO) has two parts.
- Participants may serve the period of their sentence in the community.
- Participants also undergo treatment and supervision aimed at rehabilitation through trauma-informed responses to addiction and dependency.
Participants on a DATO may be required to:
- attend regular hearings at the Drug and Alcohol Treatment Court
- undergo regular drug and/or alcohol testing
- engage in medical, psychiatric or psychological assessment and treatment
- attend educational, vocational, employment and other programs
- meet residential and curfew conditions.
Further information is available on the County Court Drug and Alcohol Treatment Court website.
Regional circuit cases
There are 11 courts outside Melbourne called circuit courts: Bairnsdale, Ballarat, Bendigo, Geelong, Horsham, Latrobe Valley (Morwell), Mildura, Shepparton, Wangaratta, Warrnambool and Wodonga.
The County Court and the Supreme Court hear trials, plea hearings, sentence hearings and appeals in circuit courts.
Each year, a number of 4-5 week blocks of time are booked in at each circuit court to hear cases. Each block of time is called a circuit. A number of cases will be listed for hearing in each circuit.
A case that is heard in a circuit is heard in the same way as a case in Melbourne. The same legal rules apply.
Usually, the OPP solicitor who prepared the case will hand the case over to another OPP solicitor who works on the circuit.
Hearing dates for circuit cases
Usually, each case in a circuit will be given the same hearing date – the first day of the circuit.
But not every case will start on this date. Each case is heard at a different time during the circuit. The court calls each case on at short notice and expects that each case will be ready to start.
Sometimes, the court does not have time to hear every case in the circuit. If this happens, the case will be listed for a new circuit.
If you give evidence in a circuit case
If a victim of crime or witness gives evidence in a circuit case, they will give their evidence from the circuit court, or via a video link from another location.
Victims and witnesses who are required to give evidence will receive a subpoena. A subpoena is a document that tells you that you have to go to court and includes the first date of the circuit. However, you should not go to court until the police informant or OPP solicitor or social worker tells you that you are needed. This is because it is difficult to know at the start of a circuit when each case will start. This can feel frustrating for victims and witnesses and other interested people who would prefer to have a certain date. But it is important to be flexible.
The police informant, or the OPP solicitor will keep victims and witnesses updated about when the case may be heard in the circuit. If you have questions, contact the OPP solicitor, social worker or police informant.
County Court appeals
A person who has been sentenced in the Magistrates’ Court or Children’s Court may appeal to the County Court (a higher court). The person appealing is called the appellant.
The appellant has an automatic right to appeal within 28 days after the sentence, and may be allowed to appeal after 28 days if they can show good reasons why they did not appeal within 28 days. The appellant does not have to identify any error made in the Magistrates’ Court or Children’s Court.
If the appellant was sentenced to prison in the Magistrates’ Court or Children’s Court, they may apply for bail until their appeal is heard. If the court grants bail, the person will not start serving their prison term immediately. Instead, they will live in the community and must comply with any bail conditions until their appeal is heard.
Types of appeals
There are two types of appeals to the County Court:
- Appeals against sentence: The appellant admits that they committed the offence but they say that the sentence imposed was too harsh.
- Appeals against conviction and sentence: The appellant does not admit that they committed the offence. They are appealing against the finding of guilt and the sentence imposed. This means the charges must be proved again in the County Court and witnesses are required to give evidence. A person may appeal against their conviction, even if they pleaded guilty in the Magistrates’ Court or Children’s Court. This means that victims and witnesses who did not have to give evidence in the lower court may have to give evidence at the appeal hearing in the County Court.
Both types of appeals are heard de novo. This means the case is heard afresh. Anything that happened in the Magistrates’ Court or Children’s Court is not relevant for the County Court appeal.
DPP appeals against sentence
The DPP may also appeal against a sentence imposed in the Magistrates’ Court or Children’s Court. However, the DPP cannot appeal against a person being found not guilty of an offence.
Victoria Police, who prosecute cases in the Magistrates’ Court and Children’s Court may refer a case to the OPP to consider a DPP sentence appeal.
If a DPP sentence appeal is lodged, the case will be heard afresh in the County Court. The sentence may be increased, reduced or stay the same.
Shortly after the OPP is notified that an appeal has been lodged, the OPP solicitor and/or social worker will contact the victims to let them know the type of appeal, any relevant dates, and to explain the role of the victims in the appeal.
For sentence appeals, victims:
- are not required to give evidence
- may choose to come to court to watch the appeal hearing
- may choose to provide an updated Victim Impact Statement or use the one they provided in the Magistrates’ Court or Children’s Court.
For conviction appeals, victims will normally be required to give evidence in the County Court.