Courts and Tribunals Tasmania

Contest Mention

Introduction

Guidelines

 The establishment of a Contest Mention Court as a pilot project as part of the Courts of Petty Sessions at Hobart for a trial period of 6 months commenced in February, 1996. In view of the success of the program, its duration was extended indefinitely and expanded in January 1997 to operate in the Courts of Petty Sessions held at Burnie, Ulverstone and Devonport.

The Tasmanian arrangements are based upon the successful arrangements which operate in the Magistrates Court of Victoria.

Object of the Contest Mention System

The object of the system is the early identification of certain prosecutions which are the subject of pleas of not guilty:

  1. Which will not ultimately proceed to contested hearing as a result of either:

(i) the prosecution being abandoned, or

(ii) a change of plea.

  1. Whose duration could be reduced by effectively defining and narrowing issues and by identifying common ground.
  2. Which are defended solely as a result of an unjustified fear of the consequences of conviction.

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Advantages

Early identification of the categories of prosecutions referred to above has favourable implications for:

The Court

Parties (including Tasmania Police and the Australian Government Solicitors Office)

The legal profession

The Legal Aid Commission of Tasmania

The community generally

by virtue of the saving of resources and the earlier determination of pending prosecutions.

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Problems Addressed

The effective management of cases through the Courts of Petty Sessions was being hindered in a significant way by:

The abandonment of hearings and amendment of pleas at times that were too late to enable other matters to be listed to utilise the hearing time that thereby became available

Prosecutions proceeding to hearing as a result of misunderstandings and confusion as to the case of the opposing party

Hearings being unduly protracted as a result of inadequate definition of issues and the calling of evidence of matters which were not in dispute

Grossly inaccurate estimates as to duration resulting in disruption to the orderly flow of work through the courts and inconvenience and expense to parties

Hearings not ready to proceed on the appointed day

Pleas of not guilty based upon unjustified fears of the results of conviction

Operational Arrangements

The arrangements operate in the Courts of Petty Sessions that are held at Hobart, Burnie, Ulverstone and Devonport.

Upon a plea of not guilty being entered to a prosecution that falls within the identified category of cases that are likely to be susceptible to contest mention case management (for example, all cases in which counsel are involved that are estimated to be of 2 hours duration or longer), the case is adjourned to a Contest Mention Court constituted by another Magistrate approximately 6 weeks thereafter. The Contest Mention Magistrate actively attempts to satisfy the objects that are specified in paragraph 2 of the Guidelines by providing, if appropriate, a 'sentence indication'. Possible outcomes of the Contest Mention Court include:

Dismissal of complaints that are identified as not proceeding

Acceptance of plea changes (either with or without a sentence indication having been given) and proceeding to impose penalty

Having defined and narrowed issues and identified areas of agreement and ascertained accurate estimates of duration, listing the matter for hearing before the Magistrate who had referred the matter to the Contest Mention Court thereby preserving the efficacy of the personalised diary system, that is, Individual Docket System (IDS), that operates in the Magistrates Court.

It is an important element of the system that certainty of trial date is offered in those cases which are proceeding to trial.

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Contest Mention Guidelines

1. Introduction

1.1. These guidelines were formulated by the magistrates, court staff and representatives of the legal profession, the Legal Aid Commission of Tasmania, the Australian Government Solicitor's office and Tasmania Police.

1.2. These Guidelines are made for the purpose of establishing orderly procedures for the conduct of litigation in the Magistrates' Court. Proceedings in the Court will be managed and supervised in accordance with a system of positive case flow management with the object of:

  1. promoting the just determination of litigation according to law;
  2. disposing efficiently of the business of the Court;
  3. maximizing the efficient use of available judicial and administrative resources; and
  4. facilitating the timely disposal of business at a cost affordable by the parties.

1.3. In furtherance of paragraph 1.2., the practice, procedure and processes of the Court shall have as a goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for the identification of the factual and legal issues bona fide in dispute between the parties and the preparation of the case for trial or other disposition. To that end the parties to proceedings are required to be ready to proceed to trial by the date of the hearing for which a trial date is set.

1.4. These provisions are guidelines only and should not be interpreted so as to deprive any party who is genuinely endeavouring to comply with the procedures of the Court of the right to have his or her matter heard and determined according to its merits.

1.5. The Guidelines reflect the philosophy that sanctions or undue pressure on parties are inappropriate in a system that relies upon the goodwill and co-operation of all parties and general acceptance by all court users as a fair and equitable manner of identifying pleas of guilty at the earliest possible opportunity and of providing effective case flow management.

1.6. Although it is hoped that general acceptance of these Guidelines will result in consistency of approach, they do not purport to direct any magistrate how to conduct his or her court.

1.7. These Guidelines are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects and the application of the above principles.

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2. Matters to be Listed for Contest Mention

2.1. On the entry of a plea of not guilty, the magistrate shall, subject to these guide-lines, list the matter:

  1. for mention in that magistrate's list,
  2. hearing, or
  3. contest mention.

2.2. All contested matters of an estimated duration of 2 hours or more should be listed for contest mention, except:

  1. proceedings in which the defendant is unrepresented;
  2. proceedings listed before Justices of the Peace;
  3. proceedings pursuant to the Children, Young Persons & Their Families Act 1997;
  4. committal proceedings or the taking of depositions;
  5. restraint order proceedings pursuant to the Justices Act 1959 Part 10A unless a magistrate is satisfied that the objects of these Guidelines will be served thereby; and 
  6. where a magistrate exercises the discretion to by-pass contest mention.

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3. Discretion of Magistrate to Permit By-pass of Contest Mention

3.1. A magistrate may allow a case that is otherwise subject to the contest mention system to by-pass that system where there is no likelihood that the objects of these Guidelines will be served by requiring compliance with them.

3.2. The contest mention system should not be by-passed unless the magistrate is satisfied that:

  1. The parties have discussed the issues and that where practicable those issues have been defined and narrowed,
  2. As to whether any facts are admitted or any witnesses can be excused, and
  3. Funding has been arranged.

3.3. The relevant record of proceedings should record compliance with paragraph 3.2.

3.4. If a magistrate is requested to order that contest mention be by-passed and the magistrate is not satisfied as to the matters in 3.2., the magistrate should either:

  1. stand down or adjourn the matter to enable those matters to be considered, or
  2. list the matter for contest mention.

4. Listing of Matters for Contest Mention

4.1. A matter should be adjourned to a contest mention court to be held within 4-6 weeks to enable parties sufficient time to prepare their cases adequately.

4.2. The defendant should be bailed or directed to attend that court except in exceptional circumstances in which event the magistrate must be assured that counsel will have communication with the defendant by telephone as required on that day.

4.3. Listings into contest mention lists should be on the basis of 3 matters into each half-hourly block.

4.4. Reasonable efforts should be made to accommodate the commitments of counsel as it is essential that counsel who has carriage of the matter should attend the contest mention hearing.

4.5. In pursuance of paragraph 4.4. reasonable efforts should be made to group each solicitor's matters in the contest mention list and to meet generally the convenience of defendants (for example, work commitments). 'Block listings' may be utilised for the court's frequent users, for example, the Legal Aid Commission of Tasmania and those practitioners with large Magistrates' Court practices. Such arrangements have the potential to save costs and avoid inconvenience.

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5. Conduct of Contest Mention Courts

5.1. Publicity

Contest mention courts must be held in open court (except where the law authorises or requires otherwise) and be recorded electronically.

5.2. Absence of solicitor or party

The matter should be stood down or, if appropriate, a warrant issued for the defendant's arrest.

5.3. Absence of instructions of prosecutor

It is essential that the prosecutor be both familiar with the file and have (or can readily obtain) instructions to give all necessary commitments on behalf of the complainant. If necessary, the matter should be stood down to enable compliance with this sub-paragraph.

5.4. Suggested general procedure.

  1. Ascertain whether the defence has had the opportunity to read all statements and other documents upon which the prosecution will rely or to discuss the matter with the prosecutor. If this has not been done, the matter should be stood down and recalled after the statements and other documents have been read and some discussion has taken place.
  2.  

(i) Obtain a full summary from the prosecutor and invite the defence to give an outline of the defence case;

(ii) Ascertain if there are any relevant prior convictions;

(iii) Obtain details of any rehabilitation undertaken or sought by the defendant (eg.drug/alcohol, psychological/psychiatric report;

(iv) If the court thinks it appropriate, a sentence indication can then be given.

  1. It is appropriate to make an objective assessment of the strength or weakness of the prosecution and defence cases.
  2. If the prosecution case is weak or unlikely to reach the required standard of proof, the prosecution should be reminded that costs may follow a dismissal and be invited to consider whether it should proceed with the matter.
  3. If the prosecution case is strong, the defence should be reminded of the loss of benefit in terms of discount (if any) to the defendant if he/she is found guilty.
  4. It may be helpful to stand cases down to enable further discussion to take place between counsel and client and also prosecutor and reporting officer.
  5. Matters stood down for further discussions should be recalled as they become ready.

5.5. Sentence indication.

  1. A sentence indication is appropriate where the general procedure has been followed and the magistrate is aware of all relevant factors and the matter is still to be contested.
  2. The indication should not be specific in terms of, for instance, length of imprisonment or amount of fine, only as to the type of sentence, for example, custodial/non-custodial, conviction/non conviction, licence retained/cancelled, community service order.
  3. If a sentence indication is given but the matter is still listed in for a contested hearing, the following procedure may still result in resolution:

(1) Ask the prosecutor if any proposals for withdrawals, amending of charges etc. put to the defence would still stand if the matter proceeded at a later date as a plea of guilty

(2) If so, indicate to the defence that the sentence indication would still stand if

(i) sufficient notice is given to enable the prosecutor to notify witnesses not to attend, and

(ii) sufficient notice is given to the magistrate's clerk to enable the contest date to be allocated to another contested matter.

The magistrate giving the indication would regard himself or herself part heard in these circumstances. A duly completed Sentence Indication Form should be placed on the court file. If the matter proceeds to contested hearing, the appropriate court clerk should at a time subsequent to that specified in paragraph 5.5.(c)(2), but prior to the day of the contested hearing, place the Sentence Indication Form in a sealed envelope on the court file. - 6 -

  1. It may not be appropriate in more complex cases to give an indication of sentence.
  2. The contest mention magistrate may take the view that a plea of guilty at contest hearing ought to attract the same sentencing 'discount' as may have been applicable if that plea had been entered at an earlier time.
  3. When providing a defendant with a sentence indication the magistrate should give the same effect to victim impact matters as would have been given in other circumstances.

5.6. Adjourning for further contest mention

A matter may be adjourned to a subsequent contest mention court if the magistrate believes that the policies of these Guidelines are likely to be served thereby.

5.7. Narrowing the issues.

  1. If a matter cannot be resolved and is to be listed as a contested hearing ascertain whether all possible steps have been taken to ensure that the issues in dispute have been clearly identified and that any admissions of fact etc. that might shorten the trial are made prior to the contest date.

For example:

Can any formal witnesses be excused? eg. medical practitioner if injuries are admitted, the owner of property if ownership or damage to property is admitted, a corroborating police officer if his or her evidence takes the matter no further.

Will the record of interview be challenged?

Are drugs required to be analysed or is the nature of the drug admitted?

Are there co-defendants? Will there be an application for separate trials?

Any other matter that may assist in shortening the trial, eg. (evidence to be tendered by consent) or identifying the real nature of the dispute.

  1. Care should be taken to ensure that a full written record of any matter raised at this stage is placed on the court file.
  2. Preliminary matters such as applications for separate hearing of co-defendant should be dealt with prior to the contest date.
  3. The magistrate should make an assessment of the likely duration of the hearing.
  4. The magistrate should obtain assurances that the matter will be ready to proceed on the allocated hearing date and that funding has been arranged. Those assurances should be noted in the record of proceedings.
  5. The defendant should be bailed or directed to attend the hearing.

5.8. Adjourning for hearing

Except in exceptional circumstances, a matter must be adjourned for hearing to the list of the magistrate who referred the matter for contest mention.

 

Contest Mention Hearings Evaluation Report

The Contest Mention Hearings Evaluation Report was completed in November 2012.

This Report presents information relating to the effectiveness of the contest mention hearing scheme in Tasmania. A contest mention is a type of pre-trial hearing for summary offences or indictable offences triable summarily which aims to facilitate early guilty pleas and narrow the issues in dispute. The contest mention mechanism puts in place a process which enables a defendant, if they are going to plead guilty to an offence heard in the Magistrates Court, to do so at the earliest possible stage of the pre-trial proceedings.

The Report also identifies areas where improvement, reform or further evaluation of the scheme would be appropriate.

Among the recommendations contained in the report are:

1) Tasmania’s contest mention hearing scheme should continue to operate as a state-wide scheme that ensures equality of access to the process for all Tasmanians regardless of where they are located.
2) Legislation should be developed – perhaps via the Magistrates Court (Criminal & General Division) Bill - to provide explicit statutory authority for the Magistrates Court in summary cases to conduct contest mention hearings and for magistrates to indicate the sentence likely to be imposed on a guilty plea entered at the contest mention stage of the proceedings, and for the Chief Magistrate to give any directions and make any rules required for this purpose.
3) The Magistrates Court establish a Contest Mention Working Group to be chaired by a magistrate and to consist of magistrates and other relevant internal and external stakeholders.
4) In the context of legislatively recognised contest mention hearings, legislative provision should also be made for costs orders against either defence counsel or prosecution agencies, if they fail without reasonable excuse to comply with procedural obligations.
5) A specific data collection strategy should be established with other relevant court-based participants in contest mention hearings, such as Tasmania Police and the Legal Aid Commission, to enable a further evaluation of the “net benefits” of contest mention hearings by the end of 2015.

Download the Contest Mention Evaluation Hearings Report [Doc, 145kb, 55 pages].

If you have any queries, please do not hesitate to contact Victor Stojcevski at victor.stojcevski@justice.tas.gov.au.

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