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Justice Legislation Amendment (Trial by Judge
Alone and Other Matters) Act 2022
No. of 2022
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
Part 2--Trial by judge alone 3
3 New Chapter 9 inserted 3
4 New section 461 inserted 21
Part 3--Other matters 23
5 Children, Youth and Families Act 2005 23
6 Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997--New Part 11 inserted 23
7 Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997--Schedule 3 amended 39
8 Evidence (Miscellaneous Provisions) Act 1958 41
9 Justice Legislation Amendment (Criminal Appeals) Act 2019 41
10 Occupational Health and Safety Act 2004 41
Part 4--Repeal of this Act 42
11 Repeal of this Act 42
═════════════
Endnotes 43
1 General information 43
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Justice Legislation Amendment (Trial
by Judge Alone and Other Matters)
Act 2022
No. of 2022
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to amend the Criminal Procedure Act 2009
to provide temporary arrangements for trial
by judge alone on an order made or applied
for while a pandemic declaration is in force;
and
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Part 1--Preliminary
(b) to amend the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997--
(i) to provide temporary arrangements for
a special hearing by judge alone on an
order made or applied for while a
pandemic declaration is in force; and
(ii) to temporarily provide for extensions of
the time limits within which special
hearings must be held; and
(c) to amend the following Acts to delay the
repeal of provisions enacted to temporarily
change the operation of those Acts in
response to the COVID-19 pandemic--
(i) the Children, Youth and Families
Act 2005;
(ii) the Evidence (Miscellaneous
Provisions) Act 1958;
(iii) the Occupational Health and Safety
Act 2004; and
(d) to amend the Justice Legislation
Amendment (Criminal Appeals) Act 2019
to delay the default commencement and the
repeal of that Act.
2 Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
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Part 2--Trial by judge alone
Part 2--Trial by judge alone
3 New Chapter 9 inserted
After Chapter 8 of the Criminal Procedure
Act 2009 insert--
"Chapter 9--Temporary
arrangements for trial by judge
alone
Part 9.1--Preliminary
420A Purpose and effect of Chapter
(1) The purpose of this Chapter is to provide
temporary arrangements for trial by judge
alone on an order made or applied for while
a pandemic declaration is in force.
(2) This Chapter applies despite anything to the
contrary in--
(a) another Chapter of this Act; or
(b) any other Act, other than--
(i) the Charter of Human Rights and
Responsibilities; or
(ii) the Constitution Act 1975; or
(c) any subordinate instrument, other than
a subordinate instrument made under--
(i) the Charter of Human Rights and
Responsibilities; or
(ii) the Constitution Act 1975; or
(d) any other law.
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420B Definition
In this Chapter--
pandemic declaration has the same meaning
as in the Public Health and Wellbeing
Act 2008.
Part 9.2--Trial by judge alone
Division 1--Preliminary
420C Application of Part
This Part applies if--
(a) an accused is committed for trial under
Chapter 4; or
(b) a direct indictment is filed against an
accused.
420D Definition
In this Part--
trial by judge alone means a trial in respect
of which an order under section 420E is
made.
Division 2--Order for trial by judge
alone
420E Court may order trial by judge alone if
pandemic order is in force
(1) At any time except during trial, the court
may order that one or more charges in an
indictment be tried by the trial judge alone,
without a jury, if--
(a) each charge is for an offence under the
law of Victoria; and
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(b) each accused consents to the making of
the order; and
(c) the court is satisfied that each accused
has obtained legal advice on whether to
give that consent, including legal
advice on the effect of the order; and
(d) the court considers that it is in the
interests of justice to make the order.
(2) The court may make an order under
subsection (1)--
(a) on its own motion while a pandemic
declaration is in force; or
(b) at any time on an application made by
the prosecution or an accused while a
pandemic declaration is in force.
(3) In determining whether to make an order
under subsection (1), the court must have
regard to the submissions, if any, of the
prosecution.
(4) However, the court may make an order under
subsection (1) whether or not the prosecution
consents to the making of the order.
Division 3--Verdict and judgment
420F Verdict in trial by judge alone
(1) In a trial by judge alone, the trial judge may
make any decision that could have been
made by a jury.
(2) A decision made by a trial judge as described
in subsection (1) has, for all purposes, the
same effect as a verdict of a jury.
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420G Judgment in trial by judge alone
In a trial by judge alone, the judgment must
include--
(a) the principles of law applied by the trial
judge; and
(b) the facts on which the trial judge relied.
Division 4--Appeal from decision
regarding trial by judge alone
420H Meaning of decision regarding trial by
judge alone
In this Division--
decision regarding trial by judge alone
means--
(a) a decision of the court to make an
order under section 420E; or
(b) a decision of the court to refuse an
application for an order under
section 420E.
420I Right of appeal against decision regarding
trial by judge alone
A party to a proceeding in which the court
makes a decision regarding trial by judge
alone may appeal to the Court of Appeal
against that decision if the Court of Appeal
gives the party leave to appeal.
420J When leave to appeal may be given
(1) Subject to subsection (2), the Court of
Appeal may give leave to appeal against a
decision regarding trial by judge alone only
if the court is satisfied that it is in the
interests of justice to do so.
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(2) The Court of Appeal must not give leave to
appeal after the trial has commenced, unless
the reasons for doing so clearly outweigh any
disruption to the trial.
420K How appeal against decision regarding
trial by judge alone is commenced
(1) An appeal under section 420I is commenced
by filing a notice of application for leave to
appeal in accordance with the rules of court.
(2) A copy of the notice of application for leave
to appeal must be served on the respondent
in accordance with section 392 or 394 as the
case requires within the time that is
prescribed by the rules of court.
420L Adjournment of trial if leave to appeal
given
(1) If the Court of Appeal gives leave to appeal
against a decision regarding trial by judge
alone after the trial has commenced, the trial
judge must adjourn the trial until the appeal
has been determined.
(2) If a jury has been empanelled, and it is
reasonably practicable for the trial judge to
adjourn the trial without discharging the jury,
the trial judge must do so.
420M Determination of appeal
(1) An appeal against a decision regarding trial
by judge alone is to be determined on the
basis of--
(a) submissions made by the accused and
the prosecution to the trial judge in
relation to the decision; and
(b) if the Court of Appeal gives either party
leave to make further submissions,
those submissions.
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(2) On an appeal under section 420I, the Court
of Appeal--
(a) may affirm or set aside the decision
regarding trial by judge alone
(the original decision); and
(b) if it sets aside a decision not to make an
order under section 420E, may make
that order; and
(c) must remit the matter to the court that
made the original decision
(the originating court) for trial.
(3) If the Court of Appeal remits a matter to the
originating court under subsection (2)(c)--
(a) it may give directions concerning the
manner of the trial, including--
(i) a direction as to whether the trial
is to be conducted by the same
judge or a different judge; and
(ii) if the Court of Appeal set aside a
decision to make an order under
section 420E, a direction that the
trial be by jury; and
(b) the originating court, whether
constituted by the same judge or a
different judge, must conduct the trial
in accordance with the directions given,
if any.
420N Determination of appeal to be entered on
record
The Registrar of Criminal Appeals of the
Supreme Court must transmit the decision of
the Court of Appeal to the court that made
the decision regarding trial by judge alone
and that court must enter the decision on the
court record.
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Part 2--Trial by judge alone
Division 5--Indemnity certificates and
application of Appeal Costs Act 1998
420O Definitions
In this Division--
Appeal Costs Board means the Board within
the meaning of the Appeal Costs
Act 1998;
approved form has the same meaning as it
has in the Appeal Costs Act 1998;
costs has the same meaning as it has in the
Appeal Costs Act 1998.
420P Application for indemnity certificate if
appeal by accused is successful
(1) If an appeal under section 420I by an
accused is successful, the accused may apply
to the Court of Appeal for, and the Court of
Appeal may grant, an indemnity certificate in
respect of--
(a) the accused's own costs of the appeal;
and
(b) any additional costs that the accused
will pay or will be ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal.
(2) An accused granted an indemnity certificate
under subsection (1) is entitled to be paid by
the Appeal Costs Board on an application
made to it by the accused in the approved
form--
(a) an amount equal to the accused's own
costs of the appeal; and
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(b) any additional costs that the accused
pays, or is ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal--
that the Appeal Costs Board considers to
have been reasonably incurred.
420Q Application for indemnity certificate by
respondent if appeal by prosecution
(1) If the prosecution appeals under
section 420I, the respondent to that appeal
may apply to the Court of Appeal for, and
the Court of Appeal may grant, an indemnity
certificate in respect of--
(a) the respondent's own costs of the
appeal; and
(b) any additional costs that the respondent
will pay, or will be ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal.
(2) A respondent granted an indemnity
certificate under subsection (1) is entitled to
be paid by the Appeal Costs Board on an
application made to it by the respondent in
the approved form--
(a) an amount equal to the respondent's
own costs of the appeal; and
(b) any additional costs that the respondent
pays, or is ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal--
that the Appeal Costs Board considers to
have been reasonably incurred.
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420R Application of Appeal Costs Act 1998 to
indemnity certificates under this Division
Part 6 of the Appeal Costs Act 1998 applies
to an indemnity certificate granted under this
Division in the same way that it applies to an
indemnity certificate granted under Part 2, 3
or 4 of that Act.
Division 6--Application of this Act to
trial by judge alone
420S Decision whether to order trial by judge
alone is not an interlocutory decision
A decision by a trial judge to make, or not to
make, an order under section 420E is not an
interlocutory decision for the purposes of
this Act.
Note
Interlocutory decision is defined in section 3. Section 295
provides a right of appeal against interlocutory decisions.
420T Commencement of trial
(1) A trial by judge alone commences when the
accused pleads not guilty on arraignment
before the trial judge.
Note
Section 210 sets out when a trial involving a jury
commences.
(2) Section 217 does not apply to a trial by judge
alone.
420U Addresses to the trial judge instead of to
the jury
(1) In a trial by judge alone, the prosecutor's
opening address under section 224 is to be
presented to the trial judge.
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(2) In a trial by judge alone, the accused's
response, under section 225, to the
prosecutor's opening, is to be presented to
the trial judge.
(3) In a trial by judge alone, the accused's
opening address under section 231 is to be
given to the trial judge.
(4) In a trial by judge alone, an address under
Division 7 of Part 5.7 is to be given to the
trial judge.
420V Judge's directions to the jury
Section 238 does not apply to a trial by judge
alone.
420W Judge directing that entries of guilty or
not guilty be made
In a trial by judge alone, if the trial judge is
to exercise a power under section 241(1) or
(2), the requirement to discharge the jury
from delivering a verdict on a charge does
not apply.
420X When finding of guilt occurs
In a trial by judge alone, if the trial judge
delivers a verdict finding an accused guilty
of an offence, then at that moment the
accused is found guilty of the offence.
Note
Section 253B sets out when a finding of guilt occurs in a
trial involving a jury.
420Y Appeals
(1) On an appeal under section 274 against a
conviction imposed in a trial by judge alone,
the Court of Appeal must not exercise the
power set out in section 277(1)(c) unless--
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(a) the appellant could have been found
guilty of some other offence
(offence B) instead of offence A
(within the meaning of section 277);
and
(b) the Court is satisfied that the trial judge
was or must have been satisfied of facts
that prove the appellant was guilty of
offence B.
(2) On an appeal under section 274 against a
conviction imposed in a trial by judge alone,
the Court of Appeal must not exercise the
power set out in section 277(1)(f) unless--
(a) the appellant could have been found
guilty of some other offence
(offence B) instead of offence A
(within the meaning of section 277);
and
(b) the Court is satisfied--
(i) that the trial judge was or must
have been satisfied of facts that
prove the appellant did the acts or
made the omissions that constitute
offence B; and
(ii) that the appellant should have
been found not guilty of offence B
because of mental impairment.
(3) On an appeal under section 326A against a
conviction imposed in a trial by judge alone,
the Court of Appeal must not exercise the
power set out in section 326E(1)(c) unless--
(a) the appellant could have been found
guilty of some other offence
(offence B) instead of offence A
(within the meaning of section 326E);
and
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(b) the Court is satisfied that the trial judge
was or must have been satisfied of facts
that prove the appellant was guilty of
offence B.
(4) On an appeal under section 326A against a
conviction imposed in a trial by judge alone,
the Court of Appeal must not exercise the
power set out in section 326E(1)(f) unless--
(a) the appellant could have been found
guilty of some other offence
(offence B) instead of offence A
(within the meaning of section 326E);
and
(b) the Court is satisfied--
(i) that the trial judge was or must
have been satisfied of facts that
prove the appellant did the acts or
made the omissions that constitute
offence B; and
(ii) that the appellant should have
been found not guilty of offence B
because of mental impairment.
420Z Questions and evidence concerning
complainant's sexual activities
Section 349(b) does not apply to a trial by
judge alone.
420ZA Effect of legal representation for
cross-examination on reasoning of trial
judge
(1) Section 358 does not apply to a trial by judge
alone. Instead, this section applies.
(2) If, in a trial by judge alone, the accused is
only legally represented for the
cross-examination of a protected witness, the
trial judge must--
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(a) have regard to the fact that it is routine
practice for an unrepresented accused
to obtain or be provided with legal
representation for the
cross-examination of a protected
witness; and
(b) draw no adverse inference against the
accused as a result of the
cross-examination not being conducted
by the accused in person; and
(c) give the cross-examination no greater
or lesser weight as a result of the
cross-examination not being conducted
by the accused in person.
420ZB Special hearings under Division 6 of
Part 8.2
(1) In making a direction under section 370(1A)
in a trial by judge alone, the court is not
required to have regard to the matter set out
in section 370(1B)(f).
(2) Section 372(1)(ba) does not apply to a trial
by judge alone.
Division 7--Application of other Acts to
trial by judge alone
420ZC Crimes Act 1958
(1) Nothing in the Crimes Act 1958 affects the
power of the trial judge, in a trial by judge
alone, to return a verdict of not guilty
because of mental impairment on a charge of
murder of a child.
Note
Section 6(3) of the Crimes Act 1958 provides
similarly for trials by jury.
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(2) If a provision of the Crimes Act 1958
specified in subsection (3) requires or
permits a jury to take an action set out in the
provision on being satisfied (or not satisfied)
as described in the provision, the effect of
that provision in a judge alone trial is that it
requires or permits the trial judge to take that
action on being satisfied (or not satisfied) as
described in the provision.
(3) The specified provisions are--
(a) section 6B(1) and (2); and
(b) section 49J(7); and
(c) section 77C; and
(d) section 88A; and
(e) section 93(2); and
(f) section 325(2); and
(g) section 422(1) and (2); and
(h) section 422A(1) and (1A); and
(i) section 426; and
(j) section 427(1) and (2); and
(k) section 428; and
(l) section 429; and
(m) section 435.
420ZD Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
(1) Section 16(1) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997, in requiring that a special hearing
is to be conducted as nearly as possible as if
it were a criminal trial, does not permit an
order under section 420E to be made in
respect of a special hearing.
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Note
Section 94 of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 provides for a court
to order that a special hearing be conducted by the
judge alone, without a jury.
(2) In a trial by judge alone, the question
whether a person was suffering from a
mental impairment having the effect referred
to in section 20(1) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 is to be determined by the trial
judge on the balance of probabilities.
(3) Section 21(4) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 does not apply to a trial by judge
alone. Subsection (4) applies instead.
(4) In a trial by judge alone, if the prosecution
and the defence agree, at any time before the
trial judge retires to consider the verdict, that
the proposed evidence establishes the
defence of mental impairment, the trial judge
may hear the evidence and--
(a) if satisfied that the evidence establishes
the defence of mental impairment, may
direct that a verdict of not guilty
because of mental impairment be
recorded; or
(b) if not so satisfied, the trial by judge
alone is to continue.
(5) Section 22(2) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 does not apply to a trial by judge
alone. Subsection (6) applies instead.
(6) If, in a trial by judge alone--
(a) there is admissible evidence that raises
the question of mental impairment; and
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(b) the trial judge finds the accused not
guilty--
the verdict of the trial judge must specify
whether or not the trial judge finds the
accused not guilty because of mental
impairment.
420ZE Family Violence Protection Act 2008
(1) Section 125A(4) of the Family Violence
Protection Act 2008 does not apply to a trial
by judge alone for an offence against section
125A(1) of that Act. Subsection (2) applies
instead.
(2) If, in a trial by judge alone for an offence
against section 125A(1) of the Family
Violence Protection Act 2008, the trial
judge--
(a) is not satisfied that the accused is guilty
of that offence; but
(b) is satisfied that the accused engaged in
conduct which constitutes an offence
against section 37 or 123 of that Act
during the period described in section
125A(2)(b) of that Act--
the trial judge must acquit the accused of the
offence against section 125A(1) of that Act
but may find the accused guilty of the
offence against section 37 or 123 of that Act
and the accused is liable to punishment
accordingly.
420ZF Juries Act 2000
In the Juries Act 2000, criminal trial does
not include a trial by judge alone.
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420ZG Jury Directions Act 2015
Section 4A of the Jury Directions Act 2015
applies to a trial by judge alone.
420ZH Public Prosecutions Act 1994
Sections 47 and 49 of the Public
Prosecutions Act 1994 do not apply in
relation to a verdict returned in a trial by
judge alone.
Division 8--Miscellaneous provisions
420ZI Time of alleged offence or commencement
of criminal proceeding does not matter
The court may make an order under
section 420E in respect of a charge in an
indictment irrespective of--
(a) when the offence charged is alleged to
have been committed; and
(b) when the criminal proceeding to which
the indictment relates was commenced.
420ZJ Application for trial by judge alone not
affected by cessation of pandemic
declaration
(1) This section applies if--
(a) an application is made for an order
under section 420E; and
(b) the application is made while a
pandemic declaration is in force; and
(c) the pandemic declaration ceases to be
in force before the application is
determined.
(2) The pandemic declaration ceasing to be in
force does not affect the application.
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(3) Without limiting subsection (2)--
(a) the application may be heard and
determined after the pandemic
declaration ceases to be in force; and
(b) if an order under section 420E is made
on the application, the trial to which the
order relates may be held by judge
alone, without a jury, after the
pandemic declaration ceases to be in
force.
(4) Subsections (2) and (3) apply in relation to
an application whether or not the application
had been heard to any extent before the
pandemic declaration ceased to be in force.
420ZK Order for trial by judge alone not affected
by cessation of pandemic declaration
(1) This section applies if--
(a) an order under section 420E is made
while a pandemic declaration is in
force; and
(b) the pandemic declaration ceases to be
in force before judgment is delivered in
the trial in respect of which the order
was made.
(2) The pandemic declaration ceasing to be in
force does not affect the order under
section 420E.
(3) Without limiting subsection (2), the trial to
which the order under section 420E relates
may continue to be held by judge alone,
without a jury, after the pandemic
declaration ceases to be in force.
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(4) Subsections (2) and (3) apply in relation to
an order under section 420E whether or not
the trial to which the order relates had
commenced before the pandemic declaration
ceased to be in force.
Part 9.3--Repeal of Chapter
420ZL Repeal of Chapter
This Chapter is repealed on the first
anniversary of its commencement.".
4 New section 461 inserted
At the end of Chapter 10 of the Criminal
Procedure Act 2009 insert--
"461 Transitional provision--Justice
Legislation Amendment (Trial by Judge
Alone and Other Matters) Act 2022
(1) If an application for an order under
section 420E is made before the repeal of
Chapter 9, and is not determined before that
repeal, then despite that repeal--
(a) the application may be heard and
determined after that repeal as if
Chapter 9 had not been repealed; and
(b) for the purposes of the application, and
any order made on the application, and
any trial to which that order relates,
Chapter 9 as in force immediately
before its repeal continues to have
effect.
(2) If, immediately before the repeal of
Chapter 9, there was in force an order under
section 420E and judgment had not yet been
delivered in the trial to which that order
relates, then despite that repeal--
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(a) the order continues to have effect after
that repeal as if Chapter 9 had not been
repealed; and
(b) for the purposes of the order and the
trial to which it relates, Chapter 9 as in
force immediately before its repeal
continues to have effect.
(3) Subsection (2) applies in relation to an order
whether or not the trial to which the order
relates commenced before the repeal of
Chapter 9.
(4) On and after the repeal of Chapter 9,
Chapter 6 applies to an appeal that relates to
a trial by judge alone in the same way that it
applies to an appeal that relates to a trial by
jury.
(5) On and after the repeal of section 420F, a
verdict of a trial judge on a trial by judge
alone has, for all purposes, the same effect as
a verdict of a jury.
(6) Subsection (5) has effect despite the repeal
of section 420F.
(7) Nothing in this section limits section 14 of
the Interpretation of Legislation Act 1984.
(8) In this section--
trial by judge alone means a trial held in
accordance with an order under
section 420E as in force before its
repeal.".
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Part 3--Other matters
Part 3--Other matters
5 Children, Youth and Families Act 2005
In section 600ZC(2) of the Children, Youth and
Families Act 2005, for "sections 600S, 600T,
600ZA and 600ZB(2A)" substitute
"section 600ZA".
6 Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997--New Part 11 inserted
After Part 10 of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 insert--
"Part 11--Temporary
arrangements for special hearing
by judge alone
Division 1--Preliminary
91 Purposes and effect of Part
(1) The purposes of this Part are--
(a) to provide temporary arrangements for
a special hearing by judge alone on an
order made or applied for while a
pandemic declaration is in force; and
(b) to temporarily provide for extensions of
the time limits within which special
hearings must be held.
(2) This Part applies despite anything to the
contrary in--
(a) another Part of this Act; or
(b) any other Act, other than--
(i) the Charter of Human Rights and
Responsibilities; or
(ii) the Constitution Act 1975; or
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(c) any subordinate instrument, other than
a subordinate instrument made under--
(i) the Charter of Human Rights and
Responsibilities; or
(ii) the Constitution Act 1975; or
(d) any other law.
92 Definition
In this Part--
pandemic declaration has the same meaning
as in the Public Health and Wellbeing
Act 2008.
Division 2--Special hearing by judge
alone
93 Definition
In this Division--
special hearing by judge alone means a
special hearing in respect of which an
order under section 94 is made.
94 Court may order special hearing by judge
alone
(1) At any time before the commencement of a
special hearing, the court may order that the
special hearing be conducted by the judge
alone, without a jury, if--
(a) the offence for which the special
hearing is to be conducted is an offence
under the law of Victoria; and
(b) the court considers that it is in the
interests of justice to make the order.
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(2) The court may make an order under
subsection (1)--
(a) on its own motion while a pandemic
declaration is in force; or
(b) at any time on an application made by
the prosecution or an accused while a
pandemic declaration is in force.
(3) In determining whether to make an order
under subsection (1), the court must have
regard to--
(a) the submissions, if any, of the
prosecution; and
(b) the submissions, if any, of the accused.
(4) However, the court may make an order under
subsection (1) whether or not the prosecution
consents to the making of the order.
95 Procedure at special hearing by judge
alone
(1) Section 16(2)(b) does not apply to a special
hearing by judge alone.
(2) Section 16(2)(f) does not apply to a special
hearing by judge alone. Instead, subsection
(3) applies.
(3) Without limiting section 16(1), at a special
hearing by judge alone, any alternative
verdict that would be available if the special
hearing were a criminal trial is available to
the judge.
(4) Section 16(3) does not apply to a special
hearing by judge alone.
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96 Findings at special hearing by judge alone
(1) The findings that, under section 17(1), are
available to a jury at a special hearing are
available to a judge at a special hearing by
judge alone.
(2) To make a finding under section 17(1)(c) the
judge must be satisfied beyond reasonable
doubt, on the evidence available, that the
accused committed the offence charged or an
offence available as an alternative.
(3) A finding under section 17(1) made by a
judge at a special hearing by judge alone has,
for all purposes, the same effect as if it had
been made by a jury.
97 Judgment in special hearing by judge
alone
In a special hearing by judge alone, the
judgment must include--
(a) the principles of law applied by the
judge; and
(b) the facts on which the judge relied.
98 Effect of finding that accused committed
offence charged or alternative offence
If, at a special hearing by judge alone, the
judge makes a finding under section
17(1)(c), the judge must--
(a) declare that the person is liable to
supervision under Part 5; or
(b) order the person to be released
unconditionally.
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99 Mental impairment
In a special hearing by judge alone, the
question whether a person was suffering
from a mental impairment having the effect
referred to in section 20(1) is to be
determined by the judge on the balance of
probabilities.
100 Application of Juries Act 2000
In the Juries Act 2000, criminal trial does
not include a special hearing by judge alone.
101 Application of Jury Directions Act 2015
Section 4A of the Jury Directions Act 2015
applies to a special hearing by judge alone.
Division 3--Appeal from decision
regarding special hearing by judge alone
102 Meaning of decision regarding special
hearing by judge alone
In this Division--
decision regarding special hearing by judge
alone means--
(a) a decision of the court to make an
order under section 94; or
(b) a decision of the court to refuse an
application for an order under
section 94.
103 Right of appeal against decision regarding
special hearing by judge alone
A party to a proceeding in which the court
makes a decision regarding special hearing
by judge alone may appeal to the Court of
Appeal against that decision if the Court of
Appeal gives the party leave to appeal.
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104 When leave to appeal may be given
(1) Subject to subsection (2), the Court of
Appeal may give leave to appeal against a
decision regarding special hearing by judge
alone only if the court is satisfied that it is in
the interests of justice to do so.
(2) The Court of Appeal must not give leave to
appeal after the special hearing has
commenced, unless the reasons for doing so
clearly outweigh any disruption to the
special hearing.
105 How appeal against decision regarding
special hearing by judge alone is
commenced
(1) An appeal under section 103 is commenced
by filing a notice of application for leave to
appeal in accordance with the rules of court.
(2) A copy of the notice of application for leave
to appeal must be served on the respondent
in accordance with section 392 or 394 of the
Criminal Procedure Act 2009 as the case
requires within the time that is prescribed by
the rules of court.
106 Adjournment of special hearing if leave to
appeal given
(1) If the Court of Appeal gives leave to appeal
against a decision regarding special hearing
by judge alone after the special hearing has
commenced, the judge must adjourn the
special hearing until the appeal has been
determined.
(2) If a jury has been empanelled, and it is
reasonably practicable for the judge to
adjourn the special hearing without
discharging the jury, the judge must do so.
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107 Determination of appeal
(1) An appeal against a decision regarding
special hearing by judge alone is to be
determined on the basis of--
(a) submissions made by the accused and
the prosecution to the judge in relation
to the decision; and
(b) if the Court of Appeal gives either party
leave to make further submissions,
those submissions.
(2) On an appeal under section 103, the Court of
Appeal--
(a) may affirm or set aside the decision
regarding special hearing by judge
alone (the original decision); and
(b) if it sets aside a decision not to make an
order under section 103, may make that
order; and
(c) must remit the matter to the court that
made the original decision (the
originating court) for a special hearing.
(3) If the Court of Appeal remits a matter to the
originating court under subsection (2)(c)--
(a) it may give directions concerning the
manner of the special hearing,
including--
(i) a direction as to whether the
special hearing is to be conducted
by the same judge or a different
judge; and
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(ii) if the Court of Appeal set aside a
decision to make an order under
section 94, a direction that the
special hearing be by jury; and
(b) the originating court, whether
constituted by the same judge or a
different judge, must conduct the
special hearing in accordance with the
directions given, if any.
108 Determination of appeal to be entered on
record
The Registrar of Criminal Appeals of the
Supreme Court must transmit the decision of
the Court of Appeal to the court that made
the decision regarding special hearing by
judge alone and that court must enter the
decision on the court record.
Division 4--Indemnity certificates and
application of Appeal Costs Act 1998
109 Definitions
(1) In this Division--
Appeal Costs Board means the Board within
the meaning of the Appeal Costs
Act 1998;
approved form has the same meaning as it
has in the Appeal Costs Act 1998;
costs has the same meaning as it has in the
Appeal Costs Act 1998.
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(2) For the purposes of this Division, a reference
to an accused (whether as an appellant or as
a respondent) includes a reference to the
accused's litigation guardian or a person who
is the accused's guardian within the meaning
of the Guardianship and Administration
Act 2019.
110 Application for indemnity certificate if
appeal by accused is successful
(1) If an appeal under section 103 by an accused
is successful, the accused may apply to the
Court of Appeal for, and the Court of Appeal
may grant, an indemnity certificate in respect
of--
(a) the accused's own costs of the appeal;
and
(b) any additional costs that the accused
will pay, or will be ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal.
(2) An accused granted an indemnity certificate
under subsection (1) is entitled to be paid by
the Appeal Costs Board on an application
made to it by the accused in the approved
form--
(a) an amount equal to the accused's own
costs of the appeal; and
(b) any additional costs that the accused
pays, or is ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal--
that the Appeal Costs Board considers to
have been reasonably incurred.
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111 Application for indemnity certificate by
respondent if appeal by prosecution
(1) If the prosecution appeals under section 103,
the respondent to that appeal may apply to
the Court of Appeal for, and the Court of
Appeal may grant, an indemnity certificate in
respect of--
(a) the respondent's own costs of the
appeal; and
(b) any additional costs that the respondent
will pay, or will be ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal.
(2) A respondent granted an indemnity
certificate under subsection (1) is entitled to
be paid by the Appeal Costs Board on an
application made to it by the respondent in
the approved form--
(a) an amount equal to the respondent's
own costs of the appeal; and
(b) any additional costs that the respondent
pays, or is ordered to pay, as a
consequence of the orders made or set
aside, or the directions given, by the
Court of Appeal on the appeal--
that the Appeal Costs Board considers to
have been reasonably incurred.
112 Application of Appeal Costs Act 1998 to
indemnity certificates under this Division
Part 6 of the Appeal Costs Act 1998 applies
to an indemnity certificate granted under this
Division in the same way that it applies to an
indemnity certificate granted under Part 2, 3
or 4 of that Act.
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Division 5--Miscellaneous provisions
for special hearing by judge alone
113 Time of alleged offence, commencement of
criminal proceeding or finding of
unfitness does not matter
The court may make an order under
section 94 irrespective of--
(a) when the offence charged is alleged to
have been committed; and
(b) when the criminal proceeding to which
the special hearing relates was
commenced; and
(c) when the accused was found unfit to
stand trial.
114 Application for special hearing by judge
alone not affected by cessation of
pandemic declaration
(1) This section applies if--
(a) an application is made for an order
under section 94; and
(b) the application is made while a
pandemic declaration is in force; and
(c) the pandemic declaration ceases to be
in force before the application is
determined.
(2) The pandemic declaration ceasing to be in
force does not affect the application.
(3) Without limiting subsection (2)--
(a) the application may be heard and
determined after the pandemic
declaration ceases to be in force; and
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(b) if an order under section 94 is made on
the application, the special hearing to
which the order relates may be held by
judge alone, without a jury, after the
pandemic declaration ceases to be in
force.
(4) Subsections (2) and (3) apply in relation to
an application whether or not the application
had been heard to any extent before the
pandemic declaration ceased to be in force.
115 Order for special hearing by judge alone
not affected by cessation of pandemic
declaration
(1) This section applies if--
(a) an order under section 94 is made while
a pandemic declaration is in force; and
(b) the pandemic declaration ceases to be
in force before judgment is delivered in
the special hearing in respect of which
the order was made.
(2) The pandemic declaration ceasing to be in
force does not affect the order under
section 94.
(3) Without limiting subsection (2), the special
hearing to which the order under section 94
relates may continue to be held by judge
alone, without a jury, after the pandemic
declaration ceases to be in force.
(4) Subsections (2) and (3) apply in relation to
an order under section 94 whether or not the
special hearing to which the order relates had
commenced before the pandemic declaration
ceased to be in force.
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Division 6--Extension of time within
which special hearing must be held
116 Extension of time after investigation by
jury
(1) Section 12(5) applies subject to this section.
(2) If a court is required by section 12(5) to
proceed to hold a special hearing under
Part 3, the court may extend the period
within which the hearing must be held if the
court is of the opinion that it is in the
interests of justice to do so.
(3) The court may extend the period--
(a) on its own motion at any time before
the expiry of the period referred to in
section 12(5); or
(b) at any time on an application made
before the expiry of that period.
(4) The court may extend the period by a period
that the court considers is reasonable, having
regard to--
(a) the circumstances of the case; and
(b) the submissions, if any, of the
prosecution; and
(c) the submissions, if any, of the accused.
(5) The court may extend the period only once.
(6) The court may extend the period regardless
of when either the finding referred to in
section 12(5), or the determination referred
to in that provision, was made.
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117 Extension of time after investigation by
jury--when adjournment abridged
(1) Section 13(3) applies subject to this section.
(2) In making an order referred to in section
13(3)(c), the court may specify, as the period
within which the court will proceed to hold
the special hearing, a period that is longer
than 3 months if the court is of the opinion
that it is in the interests of justice to do so.
(3) The court may specify a longer period that
the court considers is reasonable, having
regard to--
(a) the circumstances of the case; and
(b) the submissions, if any, of the
prosecution; and
(c) the submissions, if any, of the accused.
(4) If--
(a) a court makes an order referred to in
section 13(3)(c); and
(b) a period of longer than 3 months is not
specified in the order in accordance
with subsection (2)--
the court may extend the period within which
the order requires a special hearing if the
court is of the opinion that it is in the
interests of justice to do so.
(5) The court may extend the period--
(a) on its own motion at any time before
the expiry of the period within which
the order requires the special hearing to
be held; or
(b) at any time on an application made
before the expiry of that period.
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(6) The court may extend the period by a period
that the court considers is reasonable, having
regard to--
(a) the submissions, if any, of the
prosecution; and
(b) the submissions, if any, of the accused.
(7) The court may extend the period only once.
(8) The court may extend the period regardless
of when the order was made.
118 Extension of time after investigation by
judge alone
(1) Section 14F(5) applies subject to this
section.
(2) If a court is required by section 14F(5) to
proceed to hold a special hearing under
Part 3, the court may extend the period
within which the hearing must be held if the
court is of the opinion that it is in the
interests of justice to do so.
(3) The court may extend the period--
(a) on its own motion at any time before
the expiry of the period referred to in
section 14F(5); or
(b) at any time on an application made
before the expiry of that period.
(4) The court may extend the period by a period
that the court considers is reasonable, having
regard to--
(a) the submissions, if any, of the
prosecution; and
(b) the submissions, if any, of the accused.
(5) The court may extend the period only once.
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(6) The court may extend the period regardless
of when either the finding referred to in
section 14F(5), or the determination referred
to in that provision, was made.
119 Extension of time after investigation by
judge alone--when adjournment abridged
(1) Section 14G(3) applies subject to this
section.
(2) In making an order referred to in section
14G(3)(c), the court may specify, as the
period within which the court will proceed to
hold the special hearing, a period that is
longer than 3 months if the court is of the
opinion that it is in the interests of justice to
do so.
(3) The court may specify a longer period that
the court considers is reasonable, having
regard to--
(a) the submissions, if any, of the
prosecution; and
(b) the submissions, if any, of the accused.
(4) If--
(a) a court makes an order referred to in
section 14G(3)(c); and
(b) a period of longer than 3 months is not
specified in the order in accordance
with subsection (2)--
the court may extend the period within which
the order requires a special hearing if the
court is of the opinion that it is in the
interests of justice to do so.
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(5) The court may extend the period--
(a) on its own motion at any time before
the expiry of the period within which
the order requires the special hearing to
be held; or
(b) at any time on an application made
before the expiry of that period.
(6) The court may extend the period by a period
that the court considers is reasonable, having
regard to--
(a) the submissions, if any, of the
prosecution; and
(b) the submissions, if any, of the accused.
(7) The court may extend the period only once.
(8) The court may extend the period regardless
of when the order was made.
Division 7--Repeal of Part
120 Repeal of Part
This Part is repealed on the first anniversary
of its commencement.".
7 Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997--Schedule 3 amended
After clause 16C of Schedule 3 to the Crimes
(Mental Impairment and Unfitness to be Tried)
Act 1997 insert--
"16D Transitional provision--Justice
Legislation Amendment (Trial by Judge
Alone and Other Matters) Act 2022
(1) If an application for an order under
section 94 is made before the repeal of
Part 11, and is not determined before that
repeal, then despite that repeal--
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(a) the application may be heard and
determined as if Part 11 had not been
repealed; and
(b) for the purposes of the application, and
any order made on the application, and
any special hearing to which that order
relates, Part 11 as in force immediately
before its repeal continues to have
effect.
(2) If, immediately before the repeal of Part 11,
there was in force an order under section 94
and judgment had not yet been delivered in
the special hearing to which that order
relates, then despite that repeal--
(a) the order continues to have effect as if
Part 11 had not been repealed; and
(b) for the purposes of the order and the
special hearing to which it relates,
Part 11 as in force immediately before
its repeal continues to have effect.
(3) Subsection (2) applies in relation to an order
whether or not the special hearing to which
the order relates commenced before the
repeal of Part 11.
(4) On and after the repeal of section 96, a
finding of a judge at a special hearing by
judge alone has, for all purposes, the same
effect as a finding of a jury.
(5) Subsection (4) has effect despite the repeal
of section 96.
(6) Nothing in this section limits section 14 of
the Interpretation of Legislation Act 1984.
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(7) In this section--
special hearing by judge alone means a
special hearing held in accordance with
an order under section 94 as in force
before its repeal.".
8 Evidence (Miscellaneous Provisions) Act 1958
(1) In section 42JA(2A) of the Evidence
(Miscellaneous Provisions) Act 1958, for
"26 April 2022" substitute "26 April 2023".
(2) In section 42YA of the Evidence (Miscellaneous
Provisions) Act 1958, for "27 April 2022"
substitute "27 April 2023".
9 Justice Legislation Amendment (Criminal Appeals)
Act 2019
(1) In section 2(3) of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
"1 January 2023" substitute "5 July 2025".
(2) In section 39 of the Justice Legislation
Amendment (Criminal Appeals) Act 2019, for
"1 January 2024" substitute "5 July 2026".
10 Occupational Health and Safety Act 2004
In section 192 of the Occupational Health and
Safety Act 2004, for "26 April" substitute
"26 October".
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Part 4--Repeal of this Act
Part 4--Repeal of this Act
11 Repeal of this Act
This Act is repealed on the first anniversary of its
commencement.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═════════════
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No. of 2022
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Criminal Procedure Act 2009 to provide temporary arrangements for
trial by judge alone on an order made or applied for while a pandemic
declaration is in force and to amend the Children, Youth and Families
Act 2005, the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997, the Evidence (Miscellaneous Provisions) Act 1958, the
Justice Legislation Amendment (Criminal Appeals) Act 2019 and the
Occupational Health and Safety Act 2004 and for other purposes."
By Authority. Government Printer for the State of Victoria.
43
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