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.
The object of the system is the early identification of certain prosecutions which are the subject of pleas of not guilty:
(i) the prosecution being abandoned, or
(ii) a change of plea.
Early identification of the categories of prosecutions referred to above has favourable implications for:
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.
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
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.
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:
1.3. 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.
2.1. On the entry of a plea of not guilty, the magistrate shall, subject to these guide-lines, list the matter:
2.2. All contested matters of an estimated duration of 2 hours or more should be listed for contest mention, except:
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:
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:
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.
Contest mention courts must be held in open court (except where the law authorises or requires otherwise) and be recorded electronically.
The matter should be stood down or, if appropriate, a warrant issued for the defendant's arrest.
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.
(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) 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 -
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.
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.
Except in exceptional circumstances, a matter must be adjourned for hearing to the list of the magistrate who referred the matter for contest mention.
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.
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