In Victoria, a prosecution is commenced in one of three ways: a charge-sheet is filed in the Magistrates’ Court; a direct indictment is filed by the CDPP or Victorian DPP in the County, Supreme or Federal Court,1 or a court may unilaterally direct a person be tried for perjury.2
Here, we will look at prosecutions commenced by the filing of a charge sheet.
An investigation is conducted
Generally, corporate crime is investigated by a regulator, not a police force – though that is not always the case, and corporate crime expertise has developed in some specialist police units. Investigations by regulators are conducted in accordance with the compliance and enforcement policy of each regulator. Those documents are becoming increasingly similar, informed by a key set of overarching guidance documents, which include the prosecution policy of the DPP within the jurisdiction, and (at least in the Commonwealth jurisdiction) the Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA) document “Overarching principles for selecting cases for investigation and administrative, civil and criminal sanctions” and the “Australian Government Investigation Standards 2011” published by the Commonwealth Attorney-General’s Department.
Within some specific market contexts, a co-ordinating, cross-jurisdictional group has been established to promote consistency in compliance and enforcement: Safe Work Australia is an excellent example of this.
A charge is filed
A criminal charge is written in a chargesheet, (called an “information” in some Australian states and in the UK) by an informant. The chargesheet will purport to summon or issue a warrant to arrest the accused named in the chargesheet. An informant is a person with power under legislation or common law to initiate the prosecution – in fact, unless legislation precludes it, any person may, under common law, act as an informant. The chargesheet is filed by the informant at the relevant court – in Victoria, the Magistrates’ Court. The Court, if satisfied with the form of the chargesheet, will issue the charge/s and summons, or charge/s and warrant to arrest, as appropriate. Arrest is not appropriate for a corporate criminal accused; however, where there is an individual co-accused, (for example, a director of the corporate accused, or a co-conspirator), a warrant may sometimes be issued for their arrest.
Which Court is the corporate criminal charge filed in?
The charge is filed with the Magistrates’ Court (or equivalent) in the relevant State or Territory. For Commonwealth offences, section 80 of the Australian Constitution requires a prosecution for an indictable Commonwealth offence to be heard in the state or territory in which the offence is alleged to have been committed. State and Territory Courts have jurisdiction to adjudicate prosecutions of Commonwealth offences by virtue of s68 Judiciary Act 1903 (Cth). So the usual practice is for Commonwealth offences to be tried in State and Territory courts, applying Commonwealth legislation.
However, some legislation (namely, the Copyright Act 1968 (Cth), Fair Work Act 2009 (Cth), Competition and Consumer Act 2010 (Cth), Building and Construction Industry (Improving Productivity) Act 2016 and the Australian Energy Market Act 2004 (Cth)) does provide for summary offences to be heard and determined in the Federal Court. For a discussion of the jurisdiction, see ACCC v Davies  FCA 1017 at . These matters are heard by a Judge sitting alone.
The Federal Court can also conduct trials for two indictable offences. In 2009, s23AB(4) was inserted to the Federal Court of Australia Act 1976 (Cth), granting the Federal Court jurisdiction to hear serious cartel prosecutions under the Competition and Consumer Law Act 2010 (Cth). The Explanatory Memorandum of the amending legislation explains, somewhat curiously, that in such matters the committal process would still occur in the relevant State or Territory court. Even more curiously, the ExMem declares “The amendments are not expected to have any significant financial impact.” That seems difficult to believe, given the significant costs of retrofitting Federal Courts with jury facilities, training judicial and court staff on criminal and jury processes, establishing processes for juror liaison etc.
In late 2017, Justice Weinberg suggested the Federal Court should be given jurisdiction to hear more (perhaps all) indictable Commonwealth prosecutions. He said:
Of course, the judges in the County Court, and the other state and territory trial courts, normally discharge their judicial responsibilities with diligence, and efficiency. Yet, it must be said that there are so many hidden traps in federal criminal law that such cases often present real difficulties. All too frequently, serious mistakes are made, and miscarriages of justice result. It would surely be worth considering whether there might be an advantage in having at least some of these trials conducted in the Federal Court, rather than in the trial courts of the states in question.
A brief is served
We could really finish here: once a charge-sheet is filed, a prosecution has commenced. But let’s look briefly at the compilation and service of the brief. Following the filing of charges, a brief of evidence must be served on the accused. The investigator or informant will have compiled a brief of evidence prior to filing the charges, for the purpose of determining whether charges ought to be filed, and, if so, which ones. Following the filing of charges, it is time to complete that brief and serve it.
In Victoria, there are four types of brief: a preliminary brief (summary proceedings), a full brief (summary proceedings), a hand up brief (indictable proceedings) and a plea brief (indictable proceedings). So, the informant must have a jurisdiction in mind (summary or indictable) when preparing the brief.
Summary Proceedings: Preliminary Brief and Full Brief
A preliminary brief is served within 21 days of filing the charges: s24 Criminal Procedure Act 2009 (Vic). It must contain the material set out in s37 Criminal Procedure Act 2009 (Vic).
The accused may request service of a full brief at any stage following service of a preliminary brief: s39 Criminal Procedure Act 2009 (Vic). Alternatively, the informant may elect to provide a full brief instead of a preliminary brief. Required contents are set out at s47 Criminal Procedure Act 2009 (Vic).
Apart from the different contents, the significance of the type of brief served is the admissibility of its contents as evidence, in the event the accused fails to attend her hearing: refer to ss83, 84 Criminal Procedure Act 2009 (Vic).
Indictable Proceedings: Hand-Up Brief and Plea Brief
With the written consent of the accused, an informant may serve a plea brief: ss116, 107 Criminal Procedure Act 2009 (Vic). Absent such consent, the informant must serve a hand-up brief, (“HUB“) along with a copy of the accused’s criminal record, or a statement that the accused has no previous convictions or infringement convictions: s107 Criminal Procedure Act 2009 (Vic). If the DPP will be prosecuting the committal hearing, a copy of the HUB/plea brief must be sent to their office.
The contents of a HUB are prescribed by s110 Criminal Procedure Act 2009 (Vic); and of a plea brief, by s117 Criminal Procedure Act 2009 (Vic). A plea brief is designed to relieve some of the burden of a hand-up brief, in those cases where guilt is admitted. However, the brief must still satisfy a Magistrate that the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged: if it fails to do so, the Magistrate cannot commit the accused to trial: s142 Criminal Procedure Act 2009 (Vic).
Note: even in cases where the accused admits guilt, and intends to plead guilty in the higher court, a Magistrate must still “commit the accused to trial”. Procedurally, that is the mechanism by which the matter is transferred to the relevant higher court. It does not necessarily mean there will be a trial.
Continuing Obligation Of Disclosure
Service of a preliminary, full or hand-up brief does not relieve the prosecution of its continuing disclosure obligations,3 although the Criminal Procedure Act 2009 (Vic) doesn’t require continuing disclosure after service of a plea brief.4 Note, however, that the Criminal Procedure Act 2009 (Vic) does not limit any common law duties of disclosure.5
- For an example of a corporation directly indicted, see R v Nippon Yusen Kabushiki Kaisha, a criminal cartel prosecution
- See ss5, 415 Criminal Procedure Act 2009 (Vic).
- Sections 42, 111, 185 Criminal Procedure Act 2009 (Vic).
- Section 111(3) Criminal Procedure Act 2009 (Vic).
- Section 416 Criminal Procedure Act 2009 (Vic).