Contest Mention Information Guide

What is Contest Mention?

A contest mention is a type of pre-trial hearing which aims to facilitate early guilty pleas and narrow the issues in dispute.

What Matters can be Listed for Contest Mention?

  • Summary offences and indictable offences triable summarily.
  • All contested criminal matters of an estimated duration of two hours or more should be listed for contest mention, except:
    • if the defendant is unrepresented;
    • if a magistrate exercises their discretion to bypass contest mention;
    • proceedings listed before Justices of the Peace;
    • proceedings pursuant to the Children, Young Persons & Their Families Act 1997;
    • committal proceedings or the taking of depositions;
    • restraint order proceedings pursuant to the Justices Act 1959 Part 10A unless a magistrate is satisfied that the objects of the Guidelines will be served by a contest mention listing.
  • If a matter is not listed for contest mention it should be listed for mention in that magistrate’s list or for hearing.
  • Contest Mention Guidelines (DOCX, 26.1 KB) set out the process in detail.

Objectives

Once a plea of not guilty has been entered, contest mention aims to identify as soon as possible matters:

  • which will not ultimately proceed to a contested hearing as a result of either:
  • the prosecution being abandoned, or
  • a change of plea;
  • whose duration could be reduced by effectively defining and narrowing issues and by identifying common ground;
  • which are defended solely as a result of an unjustified fear of the consequences of conviction.

General Procedure

The magistrate may do the following:

  • 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.
  • Obtain a full summary from the prosecutor and invite the defence to give an outline of the defence case.
  • Ascertain if there are any relevant prior convictions.
  • Obtain details of any rehabilitation undertaken or sought by the defendant (e.g. drug/alcohol, psychological/psychiatric report.
  • If the court thinks it appropriate, a sentence indication may be given.
  • Make an objective assessment of the strength or weakness of the prosecution and defence cases.
  • If the prosecution case is weak or unlikely to reach the required standard of proof, the magistrate may remind the prosecution that costs may follow a dismissal and be invited to consider whether it should proceed with the matter.
  • If the prosecution case is strong, the magistrate may remind the defence of the loss of benefit in terms of discount (if any) to the defendant if he/she is found guilty.
  • Stand cases down to enable further discussion to take place between counsel and client and also prosecutor and reporting officer.
  • Matters stood down for further discussions should be recalled as they become ready.

Narrowing the Issues

If a matter cannot be resolved and is to be listed as a contested hearing the magistrate may:

  • ascertain whether all possible steps have been taken to ensure that the issues in dispute have been clearly identified; and
  • identify any admissions of fact etc. that might shorten the trial and which are made prior to the contest date.

Relevant Considerations:

  • Can any formal witnesses be excused? – e.g. 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, e.g. evidence to be tendered by consent.
  • A full written record of any matter raised at this stage will be placed on the court file.
  • Preliminary matters such as applications for separate hearing of co-defendant should be dealt with prior to the contest date.
  • The magistrate will seek information in order to make an assessment of the likely duration of the hearing.
  • The magistrate may seek assurances that the matter will be ready to proceed on the allocated hearing date and that funding has been arranged.  Those assurances will be noted in the record of proceedings.
  • The defendant should be bailed or directed to attend the hearing.

Sentence Indication

  • A sentence indication is appropriate where the general procedure has been followed, the magistrate is aware of all relevant factors, and the matter is still to be contested.
  • 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 based order.
  • 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:
  • The magistrate may 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.
  • If so, the magistrate may indicate to the defence that the sentence indication would still stand if:
  • sufficient notice is given to enable the prosecutor to notify witnesses not to attend; and
  • sufficient notice is given to the magistrate's clerk to enable the contest date to be allocated to another contested matter.

Further Information

  • Contest mention courts must be held in open court (except where the law authorises or requires otherwise) and they will be recorded electronically.
  • If a party or their solicitor is not present 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 be able to 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 requirement.
  • A matter may be adjourned to a subsequent contest mention court if the magistrate believes that the policies of contest mention are likely to be served by doing so.
  • Except in exceptional circumstances, a matter must be adjourned for hearing to the list of the magistrate who referred the matter for contest mention.