9. Committals Master — Victoria¶
Scope and currency
Post-28 December 2025 framework · consolidates the Pathway Engine, Witness Engine, Currency Sheet and Section B Proforma into one document
Criminal Procedure Act 2009 (Vic) Ch 4 as amended by the Justice Legislation Amendment (Committals) Act 2025 (No. 5/2025), commenced 28 December 2025; rules: Magistrates' Court Criminal Procedure Rules 2019 as amended by the Magistrates Court Criminal Procedure Amendment (Committals) Rules 2025 (in operation 28 December 2025). Terminology is an automatic-fail risk: no committal test, no power to discharge, no unrestricted leave to cross-examine. But the statutory labels survive — the proceeding is still a "committal proceeding" (Ch 4) and the order is still to "commit for trial" (s 141); do not over-correct by avoiding them. The committal is case management — disclosure, resolution, narrowing, trial readiness.
Old vs new — the one-glance reorientation¶
| Feature | Old regime | New regime (filing hearing on/after 28 Dec 2025) |
|---|---|---|
| Committal test | Evidence of sufficient weight to support a conviction | Abolished — on the hand-up brief the court must commit for trial (substituted s 141) |
| Discharge | Available for insufficient evidence | Abolished — no discharge outcome at any stage |
| Committal hearing | Available in most indictable matters | Only on leave — and never in s 123 or Part 4.6A matters (s 100(1A)) |
| Cross-examination | By leave at committal | Default none; leave the exception; prohibited for any witness in s 123 matters (s 123(2)) |
| Function | Filtering stage | Case management: disclosure, resolution, issue-narrowing, trial readiness |
| Disclosure | Hand-up brief | Strengthened — HUB must include anything reasonably expected to undermine the prosecution case or assist the accused (s 110(2)); continuing disclosure s 111 |
GATE 0 — Transitional and forum¶
GATE 0A Which regime? (s 463(1); s 98)
Was the filing hearing on or after 28 December 2025? → Yes: the new framework and the Amended Rules govern (transitional s 463(1)); the committal proceeding commences at the filing hearing (s 98). The prosecution's filing-hearing checklist identifies the case category (sexual / FV / stalking / Part 4.6A) at the outset. → No: pre-reform Chapter 4 and the unamended Rules continue to govern — say so expressly and apply the old law: the sufficiency test, the power to discharge, the former "justified" leave standard, and the narrow old s 123(1) (as substituted by No. 38/2022), which barred leave to cross-examine any witness only where the proceeding related to a sexual offence charge and a complainant was a child or a person with a cognitive impairment when the proceeding commenced.
GATE 0B Summary-jurisdiction interface (ss 28–30) — before anything crystallises
Could or should this indictable charge be heard summarily instead? → Contest at s 29: the court may hear the charge summarily only if appropriate (s 29(1)(a)), having regard to the s 29(2) matters — seriousness, adequacy of sentences given the record, and expressly "whether a co-accused is charged with the same offence"; application or offer may be made at any time before committal (s 30(3)). → Once granted + consent: the accused has an accrued right to summary determination — there is no power to revoke it and no uplift back into the committal stream; prosecution circumvention by fresh charges or direct indictment is an abuse of process. Only exits: the accused's leave to withdraw consent (interests-of-justice test) or a real fitness question (mandatory transfer or stay). → The reverse door: the Supreme or County Court may transfer a summarily-determinable charge down at any time except during trial (s 168(1); must then be heard summarily, s 168(3)); no re-transfer after a summary refusal absent significant change (s 168(2)), subject to the s 168A Category A/B serious-youth-offence gateway.
GATE 1 — Category: is a committal hearing even possible?¶
GATE 1 s 100(1A); s 123; Part 4.6A (ss 127A–127F)
Does any charge on the sheet engage a prohibited category? → s 123 matter: a charge wholly or partly for a sexual offence, a family violence offence, or stalking (s 21A(1) Crimes Act 1958): no committal hearing (s 100(1A)(a)); leave to cross-examine any witness cannot be granted (s 123(2)); mandatory committal at the end of the committal mention (s 141(a)). One triggering charge captures the whole proceeding. Definitions: sexual offence — s 3 → s 4 CPA (Subdivisions (8A)–(8EAA) of Pt 1 Div 1 Crimes Act, corresponding previous enactments, and attempt/incitement/conspiracy); family violence offence — s 3 CPA (conduct constituting family violence within the FVPA 2008). → Part 4.6A matter (Matters that will go straight to SupCourt): establishes a mandatory "early committal" pathway for matters destined for the Supreme Court. An applicable offence (s 127A — an indictable offence not within the jurisdiction of the County Court, or prescribed by the regulations: murder and treason, and attempted murder, which s 36A(1)© County Court Act 1958 excludes from County Court jurisdiction) is committed early to the Supreme Court at the committal mention with no committal hearing (ss 127B, 100(1A)(b)); more than one mention permitted if in the interests of justice (s 127F). A child cannot be committed to the Supreme Court under s 127B/127C without the child's consent (s 127D). The two early-committal routes divide by their section headings: s 127B — committal proceeding not jointly conducted; s 127C — multiple accused each charged with an applicable offence. Neither covers the case where only one of several co-accused faces the applicable offence (s 127E may — unverified). → Neither: general stream — Gate 2, with leave to cross-examine available on the Gate 3 test. → Children's Court: where a child's matter exits summary determination, the Children's Court itself conducts the committal (s 156(2) YJA 2024); joint committal with an adult co-accused is available for a 15+ child facing a designated offence on corresponding orders — see the YJA Selection Engine.
GATE 2 — General stream: stages and clocks¶
The sequence — every number the examiner can ask¶
| Stage | Content | Clock / form | Provision |
|---|---|---|---|
| Filing hearing | Commences the proceeding; court fixes mention date and hand-up brief period; registrar issues notice of committal proceeding | Within 7 days of charge-sheet if arrested (bail or remand); 28 days if summons; Form 33 (r 60) | ss 98, 101, 102 |
| Hand-up brief | Form 29 notice, charge-sheet, criminal record or no-priors statement, witness statements and list, compulsory-examination transcripts, AND anything reasonably expected to undermine the prosecution case or assist the accused | Served ≥ 42 days before the committal mention; filed and forwarded to DPP within 7 days of service | ss 108, 109, 110, 110(2) |
| Continuing disclosure; objections | Ongoing duty; disclosure objections determined at the mention | — | ss 111, 125(1)(e) |
| Case direction notice | Jointly filed (Defence + Pros) Forms: - Form 32 (general), - Form 32A (for s 123 / Pt 4.6A matters), - Form 32B (case-conference issues); Informant/DPP files alone, if an unrepresented accused does not participate. |
≥ 7 days before the mention; rr 59, 59A(3) | s 118; s 118(2) |
| Committal mention | Active case management; leave applications determined; most matters committed here | Within 3 months of commencement (sexual offence); 6 months (any other) | ss 125, 126(1) |
| Committal case conference | Mandatory at the mention unless dispensed with in the interests of justice; resolution and disclosure focus; confidential — nothing said or prepared is admissible unless all parties agree | r 63 | s 127(1)–(3), (2A) |
| Committal for trial | At the end of the mention (no cross-examination) or the committal hearing (leave granted) — no other outcome | — | s 141(a), (b) |
| Plea brief / guilty plea | On a guilty plea the court must commit for trial; the court does not opine on the weight of the evidence | — | s 142 |
| Election to stand trial | Accused may elect at any time after HUB service; court must then commit | Form 38 | ss 143, 144 |
| Custody appearance | AVL is the default for an accused in custody; physical appearance at the mention requires an application at least 7 days prior; for the hearing, application at the mention | s 42L(1) EMPA; CM Practice Direction 1/2025 | s 42L(1) EMPA 1958 |
| GATE 1 Which case direction notice? | |||
| Does s 123 CPA apply, or does Part 4.6A require early committal to the Supreme Court? → No to both: Form 32 — the default case direction notice (r 59(1)). → Yes to either: Form 32A — the special-categories notice (r 59(2)). → Then, in either case: Form 32B must be jointly filed to identify the issues for the CCC (r 59A(1)) — unless the parties seek a determination that no CCC is required and set out detailed grounds in the primary form (r 59A(2)). |
The three forms compared¶
| Form 32 | Form 32A | Form 32B | |
|---|---|---|---|
| Title / purpose | Case direction notice — default | Case direction notice — special categories | Notice of issues to be addressed at committal case conference |
| Prescribing rule | MC Criminal Procedure Rules 2009, r 59(1) (as substituted by S.R. 133/2025) | MC Criminal Procedure Rules 2009, r 59(2) (as inserted by S.R. 133/2025) | MC Criminal Procedure Rules 2009, r 59A (as inserted by S.R. 133/2025) |
| Statutory hook | s 119(a) CPA | s 119(a) CPA, for s 123 / Part 4.6A proceedings | Filed on filing a case direction notice under s 118 CPA |
| When it applies | GENERAL STREAM: Proceedings to which s 123 does not apply and/or for which Part 4.6A does not require early committal to the Supreme Court | SEX, FV, STALKING, SUP COURT STREAM: Proceedings relating wholly or partly to a sexual offence, a family violence offence, or stalking (s 21A(1) Crimes Act 1958); or where Part 4.6A requires committal for trial in the Supreme Court | Every committal proceeding in which a Form 32 or 32A is filed — unless the CCC-waiver exemption applies |
| Who files | Jointly by the accused (or their legal practitioner) and either the DPP or the informant | As for Form 32 | Jointly by the parties to the committal proceeding |
| When filed | At least 7 days before the committal mention hearing | As for Form 32 | On filing the case direction notice under s 118 |
| Distinctive content | Confirmation the parties have read the brief of evidence, have discussed whether the matter can resolve by a plea, and propose how the committal proceeding should be dealt with | Requires the parties to expressly select on the face of the document whether the proceeding relates to family violence — or whether that status is disputed. Also records whether the accused seeks production of items listed in the hand-up brief to which the informant objects | Identifies the issues and material required to resolve the case at the CCC |
| Admissibility | Not subject to the s 127(3) restriction | Not subject to the s 127(3) restriction | Statutorily inadmissible — see the flag below |
Form-specific detail¶
| Form | Key features and consequences |
|---|---|
| Form 32 | The default notice. Filed jointly at least 7 days before the committal mention hearing. Must contain confirmation that the parties have read the brief of evidence, discussed whether the matter can resolve by a plea, and propose how the committal proceeding should be dealt with. Consequence: if no cross-examination of witnesses is sought, and the accused does not elect to stand trial under s 143 CPA, the Magistrates' Court is required to determine the committal proceeding at the committal mention hearing. |
| Form 32A | Prescribed where a standard committal hearing cannot be held. Two triggers: (1) s 123 CPA proceedings — a proceeding relating wholly or partly to a charge for a sexual offence, a family violence offence, or an offence against s 21A(1) Crimes Act 1958 (stalking), in which cross-examination of any witness is strictly prohibited at the committal stage; and (2) early committal to the Supreme Court — where Part 4.6A CPA requires the Magistrates' Court to commit the accused for trial in the Supreme Court, applying to major indictable offences (such as murder or treason) where a hand-up brief has been served. Two procedural features not in Form 32: the parties must explicitly select on the face of the document whether the proceeding relates to family violence, or whether that status is disputed; and the form records whether the accused** seeks production of items listed in the hand-up brief to which the informant objects. |
| Form 32B | Mandatory joinder (r 59A(1)): on filing a case direction notice (Form 32 or 32A) under s 118 CPA, the parties must jointly file Form 32B identifying the issues and material required to resolve the case at the Committal Case Conference. Exemption (r 59A(2)): filing is not required if the parties seek a determination that a CCC is not required to be held, provided they set out the detailed grounds for that request within the primary Form 32 or 32A filing. |
Form 32B is statutorily inadmissible — s 127(3) CPA
Unlike Forms 32 and 32A, the contents of Form 32B are subject to strict statutory confidentiality (recorded on the face of the form). Under s 127(3) CPA the contents are not admissible in any proceeding before any court, tribunal or judicial inquiry unless all parties to the CCC agree to its admission, or the proceeding is a criminal prosecution for an offence alleged to have been committed during or in connection with the CCC. Draft accordingly — Form 32B is the place for candid issue-narrowing, Forms 32 and 32A are not.
Summary¶
| Form | Title / purpose | Prescribing rule | When to file / triggering event |
|---|---|---|---|
| Form 32 | Case direction notice (standard) | MC Rules 2009, r 59(1) | Standard committals — no sexual offence, family violence, stalking, or Part 4.6A early Supreme Court committal. At least 7 days before the committal mention hearing. |
| Form 32A | Case direction notice (special) | MC Rules 2009, r 59(2) | Proceeding involves a sexual offence, family violence offence or stalking, or requires early Supreme Court committal under Part 4.6A. |
| Form 32B | Committal case conference issues | MC Rules 2009, r 59A | Filed concurrently with Form 32 / 32A to outline the issues in dispute for the CCC — unless a CCC waiver is sought, with detailed grounds, in the primary form. |
Currency watch¶
• Magistrates' Court Criminal Procedure Amendment (Committals) Rules 2025 (S.R. No. 133/2025) — substituted r 59(1) (Form 32) and inserted r 59(2) (Form 32A) and r 59A (Form 32B). The source notes do not state the commencement date of S.R. 133/2025 — confirm it before relying on the amended rules.
• Cross-check the current forms — form numbering and content are amended more often than the Act; verify Forms 32, 32A and 32B against the current Magistrates' Court forms page before the exam.
GATE 3 — Leave to cross-examine (general stream only)¶
GATE 3 Application, test, conduct
Has leave been sought in the case direction notice — and can the s 124(3) test be met? → Application (s 119©): state each issue; how cross-examination of the witness is directly and substantially relevant to it; the interests-of-justice reasons; and why those reasons are substantial. Late application only if in the interests of justice (s 120); determined at the mention (s 125(1)©). → Test (s 124(3)): leave must not be granted unless the court is satisfied: - an issue is identified; - cross-examination of the witness on the issue is directly and substantially relevant to it; and - there are substantial reasons why, in the interests of justice, the witness should be cross-examined on it. → Mandatory regard (s 124(4)): adequate disclosure of the prosecution case; adequate definition of the issues; a fair trial (the accused able adequately to prepare and present a defence); clarifying matters relevant to a plea or discontinuance; avoiding trivial, vexatious or oppressive cross-examination. Specified witness (child or cognitive impairment): additional s 124(5) factors. → Granted: the hearing is confined to the identified issues (s 132(1)); questions outside them may be disallowed (s 132(2)); other witnesses only by leave (ss 130(2)(b), 132A); the evidence is recorded (s 130(8)) and usable at trial if the witness becomes unavailable — s 65(3) Evidence Act 2008, adduced under s 65(6). Then committal (s 141(b)). → Refused / not sought: committed to higher court at the end of the committal mention (s 141(a)).
Arguing leave — anchor to s 124(4). Established purpose: committal cross-examination exists "to test the prosecution case and to investigate facts where the answers are unknown" (Criminal Proceedings Manual) — not a dry-run of trial cross-examination. The practice arguments — testing whether a witness will attend trial (foreign national, reluctant, unwell) and locking in an account (a s 198(2)© order pre-records evidence engaging s 65(3) on later unavailability) — are not sourced in the materials as freestanding grounds: run them inside the s 124(4) fair-trial and issue-definition limbs, and weigh the risks (locking in damaging evidence; a dress-rehearsal for the prosecution; exposing the defence theory).
GATE 4 — Pre-trial cross-examination in the trial court (ss 198–198C)¶
Keep the four provisions distinct¶
| Provision | Who / when | Test | Limits |
|---|---|---|---|
| s 198 | Any party; any time except during trial — evidence (incl. cross- and re-examination) taken at a fixed time and place | Anticipated unavailability, agreement, or other appropriate reason (s 198(2), incl. (2)©); grounds stated (s 198(3)); interests of justice (s 198(4)) | Not defence-specific; the lock-in vehicle — s 65(3)/(6) Evidence Act on later unavailability |
| s 198A | The accused; s 123 and Part 4.6A proceedings only (s 198A(1)); any time except during trial | Application mirrors s 119© (s 198A(3)); test mirrors s 124(3) (s 198A(4)); mandatory regard to s 124(4) (s 198A(5)(a)); prosecution consent may be considered (s 198A(5)(b)) | Never a s 123 complainant (s 198A(2)) — no avenue exists |
| s 198B | The accused; limited preparatory cross-examination — the codified Basha | Only where necessary to avoid a serious risk that the trial would be unfair (s 198B(3)) | Limited, not exploratory; before or during trial in the jury's absence (s 198B(6)–(7)); no offence-category limit |
| s 198C | Abolishes the common law Basha hearing (R v Basha (1989) 39 A Crim R 337) | — | No residual common-law right to committal-style cross-examination |
The complainant's evidence. A child or cognitively impaired complainant gives evidence once, at a special hearing (ss 369–370); further cross-examination only by leave on a newly discovered matter or in the interests of justice (s 376). An adult s 123 complainant is cross-examined at trial, with the remote-facility/CCTV direction mandatory (s 363, subject to s 363(3)). Mixed indictment trap: one s 123 count bars the committal hearing for the whole proceeding, but s 198A still runs for non-complainant witnesses.
At a glance — three streams¶
| Stream | Committal hearing? | XXN at committal | Pre-trial XXN vehicle | Complainant's evidence |
|---|---|---|---|---|
| General indictable | Yes, only by leave (ss 124(3), 141) | Yes, by leave, issue-confined (ss 119, 124, 132) | s 198; s 198B | Ordinary rules |
| s 123 — sexual / FV / stalking | Never (s 100(1A)(a)) | No, barred for any witness (s 123(2)) | s 198A (never the complainant); s 198B | Child/CI: special hearing, once (ss 369–376). Adult: at trial, CCTV mandatory (s 363) |
| Part 4.6A (offences that go straight to the Sup Court e.g. murder) | Never (ss 127B, 100(1A)(b)) | No, barred | s 198A; s 198B | Ordinary rules (unless also s 123) |
Other levers¶
Prosecution-side and disclosure¶
• Direct indictment (s 159) — the DPP, or a Crown Prosecutor in the DPP's name, may file an indictment at any time except where otherwise provided (s 159(1)–(2); Public Prosecutions Act 1994, Pt 5.2 CPA). With discharge abolished its old override function is obsolete; it remains the vehicle for charging without committal or after discontinuance — but using it to defeat a crystallised summary jurisdiction is an abuse of process (Gate 0B).
• Disclosure homes
Committal stream: s 110(2) (HUB must include material reasonably expected to undermine the prosecution or assist the accused) with continuing disclosure s 111; and
The parallel full-brief duty in the summary stream is s 41(3). Keep the homes distinct — cite s 110(2) in a committal answer.
Section B answer spine (paste and adapt)¶
Six steps¶
• 1 · Date — filing hearing on/after 28 December 2025? (s 463(1)); if before, the old regime — say so.
• 2 · Category — s 123 (sexual / FV / stalking s 21A(1)) or Part 4.6A? If so: no committal hearing (s 100(1A)), no committal-stage cross-examination (s 123(2)).
• 3 · Outcome — no test, no discharge; the court must commit on the hand-up brief (s 141); the committal does case management (ss 110(2), 111, 127(2)).
• 4 · Cross-examination — at committal: leave only (ss 119, 124(3)–(4)), never in s 123 matters; post-committal: s 198A for a non-complainant witness (test s 198A(4) + s 124(4)); Basha is now statutory s 198B (common law abolished, s 198C).
• 5 · Advice — the value of leave or a s 198 order is testing attendance and locking in evidence (s 65(3) EA), not a discharge; note s 159 direct indictment; "advise" means recommend.
• 6 · Currency — state the current provisions; never "the committal test", "power to discharge" or unrestricted committal cross-examination.
Gap analysis — what none of the four source documents covered¶
Early guilty plea at the committal stage
No committal-for-sentence mechanism appears in any source: the VLRC recommended a plea-and-sentence transfer order, but the enacted framework's sole exit is committal for trial (s 141), with resolution driven through the case conference (s 127) and the plea taken in the higher court. The statutory handling of a guilty plea indicated at the mention (and any surviving equivalent of the former plea provisions) is unconfirmed — check the primary materials before answering a "client wants to plead guilty now" stem beyond that structure.
Currency watch¶
• 28 December 2025 — Act No. 5/2025 and the 2025 Amendment Rules commence; the transitional line is the filing-hearing date (s 463(1)).
• s 127D — a child cannot be committed to the Supreme Court under the Part 4.6A route without consent; this also closes the Part 4.6A-child gap flagged on the YJA Selection Engine.
• Interfaces — summary jurisdiction (no uplift; accrued right); Children's Court committals (s 156(2) YJA; joint committals for 15+ designated offences); stalking now within the s 123 committal bar and, from 26 April 2026, the vulnerable-witness architecture (see the 2026 Reform Sheet). Verification note (11 July 2026): commencement, the transitional line, the s 123 categories, the MCCP Rules 2019 + 2025 Amendment Rules, the filing-hearing checklist, the 7-day case direction notice and the s 42L(1) EMPA custody-appearance rule are all confirmed against the Magistrates' Court of Victoria implementation notice of 10 December 2025 and the MCV form register. Do not currency-check these provisions on AustLII: classic.austlii.edu.au still serves s 123(1) as substituted by No. 38/2022, with no trace of the 2025 expansion — use legislation.vic.gov.au or the MCV material.