The court process

This guidance is for family members of deceased employees. There are a several steps in the court process. Some of these steps, like setting further dates, are administrative and others are more important to the outcome of the process. The court process can take a long time.

Date last updated

Sunday 28 Jun 2020

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The court process for fatalities and very serious matters

Every prosecution begins in the Magistrates' Court.

Most WorkSafe prosecutions involving a death or very serious matters follow the below process:

  1. Charges are filed with the court and served on the defendant by WorkSafe
    1. A filing hearing is held in the Magistrates' Court where future court dates are set
      1. A committal mention is held in the Magistrates' Court where issues are discussed with the Magistrate and a committal date is set
        1. A committal is held in the Magistrates' Court where witnesses may give evidence and be cross-examined by the defence. A Magistrate then determines whether there is sufficient evidence to proceed to trial in the County Court*
          1. The matter then moves into the conduct of the Office of Public Prosecutions (OPP) but WorkSafe continues to assist the prosecution
            1. A directions hearing is held in the County Court where a trial date is set
              1. A trial is heard before a jury in the County Court who may find the defendant guilty or not guilty of all or some of the charges
                1. If the defendant is found guilty, a plea hearing is held in the County Court
                  1. A sentencing hearing is held in the County Court
                    1. The defendant has the opportunity to appeal the sentence

                      *If there is insufficient evidence, the charges are dismissed and the matter concludes.

                      A defendant can plead guilty at any stage, meaning the matter will go straight to a plea hearing. There may be a reduced sentence if a defendant pleads guilty at an early stage of a matter.

                      Pre-trial stages

                      Before the case goes to trial there are pre-trial steps to make sure the case is ready for trial.

                      The 4 stages of the pre-trial stage are:

                      1. Filing hearing
                        1. Committal mention
                          1. Committal hearing
                            1. Directions hearing

                              Magistrates' Court Filing hearing

                              A filing hearing is where the matter is listed before the court and usually occurs within a short time of a charge being laid.

                              A date is set at court for the committal mention and a date may also be set for the WorkSafe investigator to provide a copy of the brief of evidence on the accused. The accused may be an individual or a company.

                              Committal mention

                              The committal mention is a preliminary hearing before the full committal hearing.

                              At this hearing:

                              • the accused can show their intention to plead guilty (generally there has been some negotiations before this date to settle a plea of guilty) or
                                • the matter is listed for a committal hearing and a date is set.

                                  Committal hearing

                                  The purpose of a committal hearing is to find out if there is enough evidence to put the accused on trial with a judge and jury.

                                  During the committal hearing the witnesses are called to come to court and be cross-examined by the accused's legal representative The Magistrate has to decide if there is enough evidence to send the case to trial in the County Court.

                                  Sometimes the Magistrate will decide that there is not enough evidence and discharge the accused.

                                  If the Magistrate decides there is enough evidence to place before a jury, then the Magistrate will 'commit' the accused for trial.

                                  County Court

                                  Directions hearing

                                  This is an administrative process to ensure all matters are ready for the trial, for example, it often involves setting time frames for steps to be completed, such as when you need to file and serve a document. There can be more than one directions hearing if there are further legal or administrative issues that need to be worked out before the trial. At this stage the Director of Public Prosecutions will take over the case.

                                  Trial stage

                                  The trial is at the County Court in front of a judge and jury of 12 people selected from the community. The Jury's verdict will find the accused guilty or not guilty.

                                  The proceedings will begin with the judge giving a brief account of what the trial is about. Then the prosecutor will speak and the accused's legal representative will usually give a short reply. The prosecutor and the accused's legal representative then question the witnesses. The judge makes sure that the trial is fair.

                                  After the witnesses have given their evidence, the prosecutor and accused's legal representative will give their closing comments to the jury. This is a summary of the evidence from each side's point of view.

                                  The judge sums up the evidence and the arguments from both sides and will explain legal issues to the jury.

                                  The jury will go to another room to consider their verdict. When they have all reached the same decision, the jury will come into the courtroom and will tell the court whether they find the accused 'guilty' or 'not guilty' of each of the offences.

                                  If the jury cannot agree on a verdict, they will be sent home and the trial will be heard again before a new jury at a later date. This is called a 'retrial'.

                                  If the jury finds the accused not guilty of all the offences then the prosecution ends. This is called an 'acquittal'. The prosecution cannot appeal to a higher court against an acquittal.

                                  If the jury finds the accused guilty, the judge decides what the sentence will be at a later date.

                                  Plea stage

                                  If the accused pleads guilty or is found guilty by a jury after a trial, there will be a plea hearing.

                                  At this hearing, the guilty person or company's legal representative can ask the judge to take certain things into account when deciding the sentence. You and other family members may be able to make a Victim Impact Statement to tell the court about the loss of your family member. This is a written statement and it can be read aloud by you, the prosecutor or handed directly to the judge for them to read. It is one of the things that a judge considers when deciding on the sentence for the accused.

                                  Sentence stage

                                  Sentencing may happen at the plea hearing or on a later day. At this hearing, the judge tells the guilty company or individual their sentence. The judge may give the company or individual a fine or conviction or, in the case of an individual, send the person to jail.

                                  If the person or company appeals the sentence there will be an appeal stage.

                                  Court of Appeal or the High Court

                                  Appeal stage

                                  The person or company may lodge an appeal to the Court of Appeal against being found guilty or against the severity of their sentence. Also, the Director of Public Prosecutions can appeal against the sentence if the Office of Public Prosecutions considers that the sentence is inadequate.

                                  Being a witness

                                  If you have made a statement about a workplace incident to a WorkSafe Victoria investigator or the police you may be called as a witness if the case goes to court.

                                  If you're called as a witness, you'll receive a witness summons if you need to give evidence in the magistrates court or subpoena if you need to give evidence in the county or supreme court. This means you must go to court to give evidence about what you know about the incident, including what you said in your statement.

                                  Attending court

                                  If you have to give WorkSafe or Victoria Police a witness statement there may be court dates that you are not able to attend. If you want to attend court you can speak to the Family Liaison Officer and they will be able to let you know if this applies to you and talk to you about what is likely to happen at court, and provide you with support for the day.

                                  WorkSafe Family Liaison Officer

                                  WorkSafe has a Family Liaison Officer to support families through our investigation and legal processes. This service is available to families whose loved one has died at work or for employees who have been seriously injured if there is a criminal prosecution.

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