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CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2009

         Criminal Procedure Amendment
         (Consequential and Transitional
              Provisions) Bill 2009

                        Introduction Print

              EXPLANATORY MEMORANDUM


                               Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill which are to:
             ·      make consequential amendments to other Acts as a
                    result of the Criminal Procedure Act 2009;
             ·      to provide transitional arrangements for the
                    commencement of that Act;
             ·      to amend that Act to provide for witnesses in sexual
                    offence and family violence cases;
             ·      to make other miscellaneous amendments relating to
                    criminal procedure.

Clause 2   provides for the commencement of the Bill. Parts 1, 2 and 6
           come into operation on the day after the day on which the Bill
           receives Royal Assent.
           The other provisions are to commence on a day or days to be
           proclaimed, or if not proclaimed, on 1 January 2011. This is the
           same forced commencement date that applies to the Criminal
           Procedure Act 2009.




561330                                1      BILL LA INTRODUCTION 16/9/2009

 


 

PART 2--AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 Clause 3 inserts new definitions in order to provide greater clarity to existing provisions and amends definitions in the Criminal Procedure Act 2009 as a result of consequential changes made by the Bill. Clause 3 also repeals definitions in part or full where they are no longer necessary. Clause 4 amends section 13 of the Criminal Procedure Act 2009 in two ways. First, clause 4(a) inserts the words "issued under section 12 or 14" in section 13 after the words "summons to answer to a charge" to ensure that the notice requirements in section 13 apply to both a summons or warrant issued under section 12, and a summons issued by a police officer or public official under section 14. Second, clause 4(b) amends section 13(b) of the Criminal Procedure Act 2009 to ensure that the type of summary of pre-hearing disclosure required under section 13 is determined with regard to whether the informant requests a committal proceeding or the offence charged may not be heard and determined summarily. New section 13(b) provides that if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, the summary to accompany a summons or warrant must be a summary of Part 4.4 (which concerns committal proceedings). If the charge is for any other indictable offence or a summary offence, the summary to accompany a summons or warrant must be a summary of Division 2 of Part 3.2. Clause 5 amends section 16(b) of the Criminal Procedure Act 2009 to replace the reference to a time limit for service of a summons "prescribed by the regulations" with "prescribed by the rules of court". This amendment reflects the intention that these sorts of procedural issues will be dealt with in court rules rather than in regulations. Clause 6 amends section 29(2)(b) of the Criminal Procedure Act 2009 by replacing the term "sentencing orders" with "sentences" to ensure consistency in terminology across the Criminal Procedure Act 2009. 2

 


 

Clause 7 amends the heading for Division 4 of Part 3.2 of Chapter 3 of the Criminal Procedure Act 2009. Currently, the heading is "Mention hearing and contest mention hearing". However, the Division sets out what the Magistrates' Court may do at, and the nature of, a mention hearing, summary case conference and contest mention hearing. Accordingly, clause 7 amends the heading to better reflect the contents of the Division. Clause 8 amends sections 83(1)(a), 83(4), 84(1)(a) and 84(6) of the Criminal Procedure Act 2009. These sections provide for the admissibility of evidence from a preliminary brief or a full brief when the court chooses to proceed to hear and determine a matter in the absence of the accused. Currently these sections are limited to cases where the court decides to proceed in the absence of the accused under section 80 (where the accused does not appear in answer to a summons). It is intended that the same evidential options be open to the court for cases where the accused fails to appear in answer to a notice to appear and the court proceeds to hear the case in the absence of the accused under section 25(1). Accordingly, references to "section 25(1)" of the Criminal Procedure Act 2009 have been added to sections 83(1)(a), 83(4), 84(1)(a) and 84(6). Clause 9 amends sections 38, 47 and 112 of the Criminal Procedure Act 2009. These sections set out the rules for, or contain references to, statements to be included in briefs used in summary and committal proceedings. The subsection in each section which creates an offence for acknowledging a false statement is repealed. In order to avoid replication of these offences and to address limitations with these offences, the Bill replaces them with one offence, in new section 414 (see clause 53) of the Criminal Procedure Act 2009. Clause 9 also provides for the following note at the foot of sections 38, 47, 49 and 112: "Section 414 provides for acknowledgment of false statements". Clause 10 amends section 110 of the Criminal Procedure Act 2009 to omit "(1)" which is unnecessary and amends the words "video recording of a kind referred to in section 37B(2) of the Evidence Act 1958" in paragraph (d)(vi). 3

 


 

"Audiovisual" replaces "video" and reference to "section 367" replaces the reference to section 37B(2) of the Evidence Act 1958. This is because clause 50 of this Bill re-enacts section 37B(2) of the Evidence Act 1958 in new section 367 of the Criminal Procedure Act 2009. Clause 11 amends section 113(1) of the Criminal Procedure Act 2009 (which relates to rules in relation to recordings) in the same way as clause 10 of the Bill (see above). Clause 12 inserts a note at the foot of section 117 of the Criminal Procedure Act 2009 referring to new section 414 (inserted into the Criminal Procedure Act 2009 by clause 53 of this Bill) and the offence of acknowledgment of false statements. Clause 13 amends section 125(1)(a) of the Criminal Procedure Act 2009. Section 125 sets out what the Magistrates' Court may do at a committal mention hearing. Section 125(1)(a) provides that a Magistrate may immediately determine a committal proceeding in accordance with section 141 (determination of a committal proceeding where a hand-up brief is used) or section 142 (determination of committal proceedings where a plea brief is used). Section 143 of the Criminal Procedure Act 2009 provides that at any time after the service on an accused of a hand-up brief, the accused may elect to stand trial. The amendment made by clause 13 provides that a Magistrate can also immediately determine a committal proceeding at a committal mention hearing where an accused elects to stand trial. Clause 14 amends sections 130(1) and 139(3) of the Criminal Procedure Act 2009 to replace references to "video" with "audiovisual". Clause 15 amends section 144(2)(b)(ii) of the Criminal Procedure Act 2009 to replace the reference to Rules (5) to (5C) in section 37A(1) of the Evidence Act 1958 with reference to new sections 342, 344 and 346 of the Criminal Procedure Act 2009. Section 37A(1) has been re-enacted in these sections of the Criminal Procedure Act 2009 inserted by clause 50 of this Bill. Clause 16 amends various sections in Part 4.11 of Chapter 4 of the Criminal Procedure Act 2009. It replaces a reference to section 37B of the Evidence Act 1958 with new Division 5 of Part 8.2 (being inserted by clause 50 of the Bill). Part 4.11 enables the Magistrates' Court to order that evidence from a witness be taken after an accused has been committed for trial. 4

 


 

Part 4.11 is based on clause 24A of Schedule 5 to the Magistrates' Court Act 1989. In DPP v Denysenko [1988] 1 VR 312 at 319 the Court of Appeal indicated that the party that obtained the order under clause 24A(1) would need to call the witness. Accordingly, if the accused obtained an order to examine a witness, the accused would be required to conduct examination-in-chief, rather than cross-examination, of the witness. These amendments, combined with those made in the Criminal Procedure Act 2009, apply differently. They provide that the court may order that the accused may cross-examine the person even where the applicant calls the witness. The prosecution may or may not choose to call the witness. This will depend on factors such as whether the witness is relied upon by the prosecution or is simply being made available to the defence where the prosecution does not consider the witness to be a witness of truth. Clause 17 amends section 153(c) of the Criminal Procedure Act 2009, by adding sections 141 and 143 to the category of proceedings which the court may determine at a committal mention hearing. Clause 18 amends section 168 of the Criminal Procedure Act 2009. Section 168 provides new powers to transfer charges from one court to another. This clause enables the court from which the charge is transferred to secure the attendance of the accused at the Magistrates' Court by ordering the accused to appear in the Magistrates' Court or by granting bail or remanding the accused in custody to a new date in the Magistrates' Court. Clause 19 amends section 181(2)(d) of the Criminal Procedure Act 2009. The reference to section 41G of the Evidence Act 1958 has been replaced by Division 6 of new Part 8.2 because section 41G has been re-enacted in Division 6 of new Part 8.2 of the Criminal Procedure Act 2009 by clause 50 of this Bill. Clause 20 amends section 197(7) of the Criminal Procedure Act 2009. Section 197(3) of the Criminal Procedure Act 2009 provides that a court may order Victoria Legal Aid (VLA) to provide legal representation to an accused in certain circumstances. Section 197(7) further provides that despite anything to the contrary in section 17A of the Supreme Court Act 1986, VLA may appeal to the Court of Appeal if the Court gives leave to do so from an order under section 197(3). 5

 


 

Clause 20 amends section 197(7) to provide that despite anything to the contrary in the Criminal Procedure Act 2009 or any other Act, VLA may appeal to the Court of Appeal if the Court gives leave to do so. This is to clarify that the right of appeal in section 197(7) operates independently from the new interlocutory appeal provisions in section 295 of the Criminal Procedure Act 2009. Clause 21 amends section 232(3) of the Criminal Procedure Act 2009. Section 232 sets out the different ways in which a trial judge may permit a person to give evidence. Section 232(3) refers to section 41G and Part IIA of the Evidence Act 1958 and sections 29 and 50 of the Evidence Act 2008. Clause 21 replaces the reference to section 41G of the Evidence Act 1958 with reference to Division 6 of new Part 8.2 of the Criminal Procedure Act 2009. This is because section 41G has been re-enacted in Division 6 of new Part 8.2 of the Criminal Procedure Act 2009 by clause 50 of the Bill. Clause 22 inserts a note at the foot of section 256 of the Criminal Procedure Act 2009. Section 256 sets out certain powers and obligations of the County Court when hearing an appeal against conviction and sentence or sentence alone from a person convicted in the Magistrates' Court. Section 256(2)(a) provides that on hearing such an appeal the County Court must set aside the sentence of the Magistrates' Court. For clarity, the note inserted by this clause indicates that the definition of sentence in section 3 of the Criminal Procedure Act 2009 includes the recording of a conviction. Clause 23 amends section 266 of the Criminal Procedure Act 2009. The amendments in subclauses (1)-(3) provide a clearer process for the abandonment of appeals. The amendments in subclauses (1) and (3) mean that Rules do not need to be made for the abandonment of appeals. The legislative structure provided is sufficient. This makes the overall process of abandonment of an appeal clearer. The amendments in subclause (2) further simplify the abandonment process. Where an appellant abandons an appeal and the sentence did not involve imprisonment or detention, then subclause (1) applies; an appeal is abandoned by filing a notice of abandonment. Where an appellant abandons an appeal and the sentence did involve imprisonment or detention, then subclauses (1) and (3) apply; the appellant must surrender to the Court and file a notice of abandonment. 6

 


 

A Registrar of the Magistrates' Court, a Magistrate or a Supreme or County Court judge can issue a warrant to imprison in relation to Magistrates' Court sentences (see sections 21(1)(a) and 57(7) of the Magistrates' Court Act 1989). Because the appellant (under new subsection (3)(a)) is required to surrender to the registrar of the County Court the registrar of the County Court will be able to issue a warrant to imprison. This is the most practical way for the warrant to imprison being issued, even though once the appeal is struck out under subsection (4), it is the sentence of the Magistrates' Court that is reinstated and to which the warrant to imprison relates. The amendment in subclause (4) makes clear that where an appeal is struck out, the sentence to be enforced is the original Magistrates' Court sentence. This addresses any potential for the provisions to be misinterpreted to mean that where an appeal is abandoned and struck out (and the sentence has therefore been "set aside") after the appeal hearing commences, the sentence to be enforced is a sentence of the County Court (see Helfenbaum v Sattler [1999] 3 VR 583, 587 [23]). Clause 24 amends section 267 of the Criminal Procedure Act 2009. Subclause (1) amends section 267(2)(a) in the same terms as clause 23(4) above. The reference to the "order" of the Magistrates' Court is replaced with "sentence" of the Magistrates' Court in order to ensure consistency in terminology across the Criminal Procedure Act 2009. Subclause (2) inserts a new subsection (7) into section 267 of the Criminal Procedure Act 2009. It provides for the automatic stay of a sentence (but not a conviction in respect of the sentence) when an appeal is reinstated under section 267(6). This follows the same model as in sections 264 and 265 of the Criminal Procedure Act 2009 in that a custodial sentence will not be stayed until appeal bail is granted. New subsection (8) ensures that a driving suspension under section 29 of the Road Safety Act 1986 is not automatically stayed by section 267(7). Subclauses (3) and (4) amend sections 268(1) and 268(4) of the Criminal Procedure Act 2009. Currently, section 268 provides the County Court on appeal with the power to deal with an appeal by the DPP where the respondent does not appear. Section 268(1) refers only to a DPP appeal under section 257 (general appeal against sentence) and not to a DPP appeal under section 260 (failure to fulfil undertaking). 7

 


 

Accordingly, subclause (3) inserts a reference to section 260 in section 268(1). Following that amendment, it is also necessary to insert references to section 261(which sets out how an appeal under section 260 is commenced). Clause 25 amends section 277(2) of the Criminal Procedure Act 2009 by replacing the term "appear" with the word "attend" consistent with the requirement upon an accused to attend all hearings in a trial proceeding, unless excused (see section 330 of the Criminal Procedure Act 2009). Section 277(2) relates to what happens to an appellant (offender) following a successful appeal and requires the court to order the appellant to appear in the trial court on a particular date. This section also relates to section 323 which gives the court the power to remand the appellant in custody or grant bail pending a retrial. Sections 277(2) and 323 are complementary. In order to show this connection, clause 25(2) inserts a note at the foot of section 277(2) indicating that section 323 enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial. Correspondingly, clause 35 inserts a note at the foot of section 323 referring to section 277(2) indicating that it requires the Court of Appeal to order the appellant to attend on a specified date for the new trial (see clause 35). Clause 26 amends section 280(2) of the Criminal Procedure Act 2009. Section 280 applies to an application for leave to appeal under section 278 (against sentence) that is heard by a single Judge of the Court of Appeal. Clause 26 amends section 280(2) to provide that an application for leave to appeal may be refused in relation to any ground of appeal. Accordingly, leave to appeal against sentence may be given for particular grounds and refused for others. This approach adds a further filter to the leave process, which should result in the substantive appeal hearing being more focussed as a result of the issues being narrowed. This provides an additional tool for case management of sentence appeals. If leave is refused, the appellant is entitled to have the application determined by the Court of Appeal under section 315(2) of the Criminal Procedure Act 2009. 8

 


 

Clause 27 inserts a new section 284A in the Criminal Procedure Act 2009. Section 283 of the Criminal Procedure Act 2009 sets out the right of appeal against a sentence of imprisonment imposed by the County Court on appeal from the Magistrates' Court. Appeals under section 283 require leave, and although rare, leave applications can be heard by a single judge. New section 284A sets out how an application for leave to appeal under section 283 that is heard by a single Judge is to be determined. For consistency, new section 284A takes the same approach to the determination of such applications as is taken to the determination of applications for leave to appeal under section 280 of the Criminal Procedure Act 2009 and clause 26 of this Bill. Clause 28 amends section 289(2) of the Criminal Procedure Act 2009 so that the Court of Appeal is not restricted to disregarding double jeopardy only in relation to its consideration of whether there is an error in the sentence imposed (see section 289(1)(a)). By substituting the words "whether there is an error in the sentence imposed" with the words "whether an appeal should be allowed" the application of subsection (2) is broadened so that it applies also to when the Court of Appeal is considering whether a different sentence should be imposed (see section 289(1)(b)). Clause 29 repeals section 294(3) of the Criminal Procedure Act 2009. Section 321(2) provides that the prohibition upon the Court from increasing a sentence by reason of new evidence does not apply to a section 291 appeal against sentence based on the failure to fulfil an undertaking. Section 294(3) states that section 321 does not apply to such appeals. The effect of the two subsections together is to render section 321(2) redundant. As a result, clause 29 repeals section 294(3) and inserts a note at the foot of section 294 indicating that section 321 provides for the effect on sentence of new evidence. Clause 30 amends sections 296(3) and 298(2) of the Criminal Procedure Act 2009. These subsections are similar. Both set time limits for service in relation to applications for leave to appeal interlocutory decisions and requests to review refusals to certify. 9

 


 

These new subsections simplify and clarify the time limits for service. The new subsections provide that all of these applications/requests must be served within the same time-period in which they are required to be filed. Clause 31 amends section 308(3) of the Criminal Procedure Act 2009 by replacing the reference to "Taxing Master of the Supreme Court" with "Costs Court" because of the commencement of amendments made by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. Clause 32 amends section 311(3) of the Criminal Procedure Act 2009 to ensure consistency in terminology across the Act. Clause 33 amends section 313(1)(a) of the Criminal Procedure Act 2009. Section 313 empowers the Court of Appeal or the Registrar of Criminal Appeals to extend time within which a notice of appeal or notice of application for leave to appeal may be filed. The words "or under section 14A or 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997" are removed because these powers are expressly provided in the amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 at item 39 in the Schedule to this Bill. Clause 34 amends section 315 of the Criminal Procedure Act 2009 which gives certain powers to a single Judge of Appeal, to ensure consistency in terminology across the Criminal Procedure Act 2009. Paragraph (g) has been added to section 315(1) to confer power on a single Judge of Appeal to hear and determine an application under section 304 of the Criminal Procedure Act 2009, to review a refusal to reserve a question of law. Subclause (2) amends section 315(2) of the Criminal Procedure Act 2009 to clarify that it applies to applications in relation to any ground of appeal. This is as a consequence of changes made in clauses 26 and 27 of this Bill. Clause 35 inserts a note at the foot of section 323 of the Criminal Procedure Act 2009. The note refers to section 277(2) of the Criminal Procedure Act 2009 and indicates that that section requires the Court of Appeal to order the appellant to appear on a specified date for a new trial. This indicates the context in which the power in section 323 will be exercised. This amendment is connected to the amendment in clause 25 of this Bill. 10

 


 

Clause 36 inserts a second note at the foot of section 327 of the Criminal Procedure Act 2009 which refers to the transitional provisions in clause 11 of Schedule 4 to the Act. Clause 37 inserts a new section 336A into the Criminal Procedure Act 2009 which provides that in a criminal proceeding where the victim is also a witness, the court may only order the victim to leave the courtroom until required to give evidence, if the court considers it appropriate to do so. This section re-enacts section 42 of the Evidence Act 1958 which was introduced in 2005 to support and recognise the role of victims in criminal proceedings. Clause 38 inserts a new subsection (2) in section 337 of the Criminal Procedure Act 2009. Section 337 provides that a court may exercise a power or discretion on the application of a party or on its own motion. To ensure that this power is not interpreted in a limited manner, new subsection (2) provides that unless the context otherwise requires, the court may vary or revoke any decision or other order it makes on the application of a party or on its own motion. Clause 39 amends sections 340 and 342 of the Criminal Procedure Act 2009 (which will be sections 392 and 394 by virtue of the renumbering in clause 52 of this Bill). Document exchange services are commonly used by legal practitioners and by the DPP. To make clear that these services can be used to serve documents, new paragraphs (da) and (ba) have been inserted (after sections 340(3)(d) and 342(b) respectively) referring to the facilities for the reception of documents in a document exchange. In addition, a provision based on rule 6.07(5)(b) of the Supreme Court (General Civil Procedure) Rules 2005 has been added to provide for when a document is taken to have been served where a document exchange has been used. Clause 40 amends section 350 of the Criminal Procedure Act 2009 (which will be section 402 by virtue of the renumbering in clause 52 of this Bill). New section 350(2) provides a primary power to award costs in notice to appear cases where a notice lapses under section 22(1) of the Criminal Procedure Act 2009 and the police or a public official fails to give notice in accordance with section 23 of that Act. 11

 


 

Clause 41 amends section 359(4) of the Criminal Procedure Act 2009 (which will be section 411(4) by virtue of the renumbering in clause 52 of this Bill) to ensure consistency in terminology across the Criminal Procedure Act 2009. Clause 42 amends section 361 of the Criminal Procedure Act 2009 (which will be section 413 by virtue of the renumbering in clause 52 of this Bill). Section 361 provides new powers to transfer charges from one court to another. This clause enables the court from which the charge is transferred to secure the attendance of the accused at the court by ordering the accused to appear in the court or by granting bail or remanding the accused in custody to a new date in the other court. Clause 43 amends section 367(1) of the Criminal Procedure Act 2009 (which will be section 420 by virtue of the renumbering in clause 54 of this Bill) by adding a new paragraph (ea). Paragraph (ea) provides a regulation-making power with respect to audio or audiovisual recordings referred to in Chapter 4 or 5 or new Part 8.2 of the Criminal Procedure Act 2009. A similar power currently exists in section 152(2)(aa) of the Evidence Act 1958. Item 54.50 in the Schedule to this Bill repeals that provision. This material is sensitive and confidential and therefore it is necessary to protect it by providing for more detailed processes in relation to its use, possession, storage or access. Clause 44 amends section 370 of the Criminal Procedure Act 2009 (which will be section 423 by virtue of the renumbering in clause 54 of this Bill). Section 370 of the Act inserts new section 14A into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Clause 44 replaces a reference to section 313 of the Criminal Procedure Act 2009 in new section 14A, with section 76C. Item 39.51 in the Schedule to this Bill inserts a new section 76C into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Section 76C provides a specific legislative basis for extending the time for filing a notice of appeal with the Court of Appeal or serving such a notice. Accordingly, new section 14A refers to section 76C of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 12

 


 

Clause 45 amends sections 371 of the Criminal Procedure Act 2009 (which will be section 424 by virtue of the renumbering in clause 54 of this Bill). Section 371 of the Act inserts a new section 24AA into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. In light of the particular status of persons to which the new section 24AA applies, references to "accused" have been replaced with "a person" or "appellant". Clause 45 also replaces a reference to section 313 of the Criminal Procedure Act 2009 in the new section 24AA, with a reference to section 76C. Item 39.51 in the Schedule to this Bill inserts a new section 76C into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. This section provides a specific legislative basis for extending the time for filing a notice of appeal with the Court of Appeal or serving such a notice. Accordingly, new section 24AA(2) refers to section 76C of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and not section 313 of the Criminal Procedure Act 2009. Clause 46 amends section 373 of the Criminal Procedure Act 2009 (which will be section 426 by virtue of the renumbering in clause 54 of this Bill). Section 373 contains consequential amendments to the Magistrates' Court Act 1989. Section 373 inserts new subsections into section 25 of the Magistrates' Court Act 1989 dealing with joint committal proceedings. Where these new subsections contain the term "defendant," those references have been replaced with "accused" in order to ensure consistency in terminology across these Acts. Clause 47 amends section 376 of the Criminal Procedure Act 2009 (which will be section 429 by virtue of the renumbering in clause 54 of this Bill). Section 376 inserts a new Part 5.1A into the Children, Youth and Families Act 2005. In the heading to proposed new section 344A, the term "charge" has been replaced with "charge- sheet" in order to ensure consistency in terminology with the Criminal Procedure Act 2009. 13

 


 

Clause 48 amends section 377 of the Criminal Procedure Act 2009 (which will be section 430 by virtue of the renumbering of clause 54 of this Bill). Section 377 inserts a new section 516A into the Children, Youth and Families Act 2005. The new section 516A indicates when a joint committal proceeding may be conducted where there is a child and adult co-accused. Section 516A(1)(b)(ii) lists the offences for which joint committal proceedings can be conducted. The Children's Court does not have summary jurisdiction to hear and determine the offences of child homicide and defensive homicide. Accordingly these two offences have been added to the list of offences in section 516A(1)(b)(ii). This ensures that the list of offences for which joint committals can be held is the same as the list of offences for which summary jurisdiction cannot be exercised. Clause 48 also amends any use of the term of the term "defendant," in the new section 516A in order to ensure consistency in terminology with the Criminal Procedure Act 2009. Clause 49 contains amendments of a statute law revision nature and amends grammatical and punctuation errors in the Criminal Procedure Act 2009. Clause 50 inserts into the Criminal Procedure Act 2009 a new Part 8.2. New Part 8.2 re-enacts those sections of the Evidence Act 1958 that provide special rules and procedure for the giving of evidence by witnesses and complainants in sexual offence and family violence proceedings. The relevant sections are sections 37A to 37E and sections 41A to 41H of the Evidence Act 1958. Item 54 of the Schedule repeals these sections in the Evidence Act 1958. The Bill clarifies and consolidates the sections in new Part 8.2. Section 8 of the Evidence Act 2008 provides that the Evidence Act 2008 does not affect the operation of the provisions of any other Act. While many provisions in new Part 8.2 concern procedural matters, some provisions concern the admissibility of evidence. These provisions deal with specific issues. Sometimes they depart from the approach in the Evidence Act 2008 by limiting certain evidence (for example, see new Division 2) and sometimes they expand the situations in which evidence is admissible (for example, see new section 377). 14

 


 

New Division 1--Guiding Principles New section 338 New section 338 sets out guiding principles to which the courts are to have regard when interpreting and applying Part 8.2. They include the fact that: · there is a high incidence of sexual violence in society; · sexual offences are significantly under-reported; · a significant number of sexual offences are committed against women, children and persons with cognitive impairment; · offenders are commonly known to their victims; · sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred. This re-enacts section 32AB of the Evidence Act 1958. New Division 2--Evidence concerning complainant New Division 2 re-enacts section 37A of the Evidence Act 1958 with some amendment and the new Division is divided into a clear and logical sequence of steps if the accused seeks leave to cross-examine or to admit evidence. New section 339 New section 339 provides that new Division 2 applies to a criminal proceeding that wholly or partly relates to a charge for a sexual offence. It confirms that the Division applies to all categories of complainants. New section 340 New section 340 provides a new definition of "sexual history evidence". This definition relates to the evidentiary rule in new sections 343 and 352. New section 341 New section 341 prohibits the court from allowing any questions or admitting any evidence that relates to the general reputation of the complainant as to chastity. This re-enacts Rule 1 in section 37A(1) of the Evidence Act 1958. 15

 


 

New section 342 New section 342 restricts evidence being admitted and the cross- examination of the complainant in relation to the complainant's sexual activities without the leave of the court. The section clarifies that the restriction applies to sexual activities other than the sexual activity to which the charge relates. This re-enacts Rule 2 in section 37A(1) of the Evidence Act 1958. New section 343 New section 343 provides that sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates. This re-enacts Rules (4) and (4A) in section 37A(1) of the Evidence Act 1958. New section 344 New section 344 makes clear that an application for leave is required in summary, committal and trial proceedings and sentencing hearings. This is based on Rule (5)(aa)(i) in section 37A(1) of the Evidence Act 1958. The new section sets out the time limits for when an application for leave may be made. The time limits have been amended so that an application for leave must be filed: · in a summary hearing, at least 7 days before the summary hearing. This time limit is new and is not provided for in the existing section 37A. · in a committal proceeding, at least 7 days before the committal hearing. The existing section 37A refers to 14 days before cross-examination of the witness. · in a trial proceeding, at least 14 days before the day on which the trial or the special hearing is listed to commence. The reference to the special hearing is new and is important as an application for leave to cross- examine a child or cognitively impaired complainant will need to be made before the special hearing rather than the trial. 16

 


 

· in the case of a sentencing hearing, at least 7 days before the sentencing hearing is listed to commence. This is new. The existing section 37A is silent on the time limit for a sentencing hearing. New section 345 New section 345 is based on Rule (5B) in section 37A(1) of the Evidence Act 1958. New section 345 provides that the court may hear and determine an application for leave after the time limit in new section 344 has expired, if it is in the interests of justice to do so. The "interests of justice" test is new and replaces the "exceptional circumstance" test in Rule (5B) in section 37A(1). The "exceptional circumstances" test imposes a high threshold in allowing an application for leave out of time and applying it strictly is incompatible with ensuring that the accused has a fair trial. Lowering the threshold ensures that the accused's application can be fairly considered by the court. New section 346 New section 346 requires the application for leave to be in writing. If the application relates to cross-examination of the complainant, the application must set out: · the initial questions sought to be asked of the complainant; · the scope of the questioning sought to flow from the initial questioning; and · how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit. If the application relates to admitting evidence as to the sexual activities of the complainant the application must: · identify the evidence that is sought to be admitted; and · set out how the evidence has substantial relevance to facts in issue. Unlike Rule (5)(aa)(ii) in section 37A(1) of the Evidence Act 1958, the Bill draws a distinction between the contents of an application for leave to cross-examine and an application for leave to admit evidence. If the application for leave relates to 17

 


 

both, then it will be required to comply with both subsections (2) and (3). New section 347 New section 347 provides that the court may waive the requirement that the application for leave be made in writing if it is in the interests of justice. The "interests of justice" test is new and replaces the "exceptional circumstances" test in Rule (5C) in section 37A(1). The "exceptional circumstances" test imposes a high threshold in allowing an application for leave out of time and applying it strictly is incompatible with ensuring that the accused has a fair trial. Lowering the threshold ensures fairness to the accused and is more applicable where the issue arises during the course of the hearing. New section 348 New section 348 provides that an application must be heard in the absence of the jury and, if the accused requests, in the absence of the complainant. This reflects Rule (5)(a) in section 37A(1) of the Evidence Act 1958. New section 349 New section 349 is based on Rule (3)(a) in section 37A(1) of the Evidence Act 1958. New section 349 sets out how the court must determine an application for leave to cross-examine the complainant or admit evidence concerning sexual activities of the complainant in a summary hearing, committal proceeding or trial. The court must not grant leave unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to a number of factors set out in the section. New section 350 New section 350 sets out how the court must determine an application for leave in a sentencing hearing. This section is based on Rule (3)(b) in section 37A(1) of the Evidence Act 1958. Rule (3)(b)(i) is not included as it is unnecessary if the person has pleaded guilty. 18

 


 

New section 351 New section 351 provides that the court must give written reasons for granting leave to cross-examine or admit evidence. However, failure to do this will not invalidate the order. This is based on Rule (6) in section 37A(1) and section 37A(2) of the Evidence Act 1958. New section 352 New section 352 limits the use that can be made of sexual history evidence by providing that it is not to be regarded: · as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or · as being a proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely to materially impair confidence in the reliability of the evidence of the complainant. This section is based on Rule (4) in section 37A(1) of the Evidence Act 1958. New Division 3--Cross-examination of protected witness New section 353 New section 353 provides that new Division 3 applies to a criminal proceeding that relates wholly or partly to a charge for a sexual offence or an offence of family violence within the meaning of the Family Violence Protection Act 2008. The Division applies to protected witnesses as defined in new section 354. This is based on section 37CA(1) of the Evidence Act 1958. New section 354 New section 354 provides a definition of family member and protected witness. A protected witness means the complainant, a family member of the complainant, a family member of the accused or any other witness who the court declares under section 355 to be a protected witness. This is based on section 37CA(2) of the Evidence Act 1958. New section 355 New section 355 enables the court to declare a witness to be a protected witness. This is based on section 37CA(3) of the Evidence Act 1958. 19

 


 

New section 356 New section 356 prohibits the accused from personally cross- examining a protected witness. This is based on section 37CA(4) of the Evidence Act 1958. New section 357 New section 357 sets out what the court must do if the accused is not legally represented. This is based on section 37CA(5)-(9) of the Evidence Act 1958. Subsection (1) sets out that the court is required to inform the accused that he or she cannot personally cross-examine a protected witness. The court can also adjourn the proceeding to enable the accused to obtain legal representation. Subsections (2), (3) and (4) enable the court to order Victoria Legal Aid to provide legal representation to the accused and require Victoria Legal Aid to provide legal representation regardless of anything to the contrary in the Legal Aid Act 1978. It also provides that a legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give instructions to the legal practitioner. Subsection (5) requires the court to provide a warning to the accused, if the accused refuses legal representation or does not co-operate, that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination. New section 358 New section 358, which is based on section 37CA(10) of the Evidence Act 1958, requires the judge to provide a warning to the jury to indicate that the procedures are regularly used, that no adverse inference may be drawn against the accused and that the evidence should be treated like any other evidence. New Division 4--Alternative arrangements for giving evidence New Division 4 consolidates sections 37C, 37CAA and 41E of the Evidence Act 1958 which set out alternative arrangements for giving evidence by different categories of complainants and witnesses. By consolidating these sections into one Division, it ensures that all alternative arrangements are available to all categories of witnesses and complainants. 20

 


 

This Division works in conjunction with other Divisions. For instance, where a complainant gives evidence by CCTV as part of a special hearing (new Division 6), the complainant may have a support person present as an "alternative arrangement". New section 359 New section 359 provides that the Division applies to a criminal proceeding that relates wholly or partly to a charge for a sexual offence or a charge for a family violence offence within the meaning of the Family Violence Protection Act 2008. Alternative arrangements can be used in relation to all categories of witnesses, including complainants. The Division applies to any stage of a criminal proceeding including an appeal or a rehearing. New section 360 New section 360 sets out the alternative arrangements that the court may direct, which include: · permitting evidence be given by closed-circuit television or other facilities; · using screens to remove the accused from the direct line of vision of the witness; · permitting another person to be beside the witness whilst giving evidence to provide emotional support; · permitting only specified persons to be present while the witness is giving evidence; · requiring legal practitioners not to robe; · requiring legal practitioners to be seated while examining or cross-examining the witness. The note to this section highlights that a direction may be made by the court on the application of a party or on its own motion in accordance with section 337(1) of the Criminal Procedure Act 2009 and that the direction may be varied or revoked at any time in accordance with section 337(2). New section 361 New section 361 requires that, if alternative arrangements are made for the giving of evidence, the judge must provide a warning to the jury that no adverse inference should be drawn and the evidence should not be given any lesser weight because of the making of those arrangements. 21

 


 

New section 362 New section 362 provides that any place outside the courtroom where the witness is permitted to give evidence is taken to be part of the court room. New section 363 New section 363 provides that, if the witness is a complainant, the court must direct that the witness give evidence by closed- circuit television or other facilities. The exception to this is if the prosecution applies for the complainant to give evidence in the courtroom and the court is satisfied that the complainant is aware that they may give evidence by CCTV and wishes to give evidence in the courtroom. New section 364 If a complainant does not give evidence by CCTV, new section 364 sets out that the court must direct that a complainant give evidence with the use of a screen unless the complainant is aware of their right to give evidence with a screen and does not wish to give evidence with the use of a screen. New section 365 New section 365 sets out that the court must direct that a complainant give evidence in the presence of a support person unless the complainant is aware of the right to give evidence with a support person and does not wish to give evidence in the presence of a support person. New Division 5--Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters New Division 5 is based on section 37B of the Evidence Act 1958. New section 366 New section 366 provides that the new Division applies to a criminal proceeding that wholly or partly relates to a charge for a sexual offence or an indictable offence which involves an assault on, or injury or a threat of injury to, a person. The Division applies to a witness who is a child or a cognitively impaired person. 22

 


 

New section 367 New section 367 provides that the witness may give evidence-in- chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section. New section 368 New section 368 sets out when a recording is admissible as evidence-in-chief in a proceeding as if the contents were direct testimony of the witness, namely if: · the transcript of the recording is served on the accused or their legal practitioner in accordance with the service provisions in new section 391 or 394 of the Criminal Procedure Act 2009; and · the court is satisfied the accused and the legal practitioner were provided with a reasonable opportunity, in accordance with the regulations, to listen to and view the recording; and · at the proceeding the witness identifies himself or herself and attests to the truth of the recording and is available for cross-examination and re-examination. Subsection (3) enables the court to rule any part or the whole of the recording inadmissible. New Division 6--Procedure and rules for children and cognitively impaired complainants This Division re-enacts sections 41D, 41G and 41H of the Evidence Act 1958. With respect to sections 41G and 41H, the Bill makes clear that special hearings apply only to trials heard in the County Court or Supreme Court (whichever court the indictment is filed in). New section 369 New section 369 provides that the Division applies to a trial in a criminal proceeding that wholly or partly relates to a charge for a sexual offence. The Division does not apply to summary proceedings in the Magistrates' Court. The Division applies to a complainant who, at the time at which the proceeding commenced, was a child or a person with a cognitive impairment. 23

 


 

New section 370 New section 370 requires the whole of the evidence of a complainant who is a child or is cognitively impaired to be given at a special hearing and audiovisually recorded. The whole of the evidence includes cross-examination and re-examination but does not require a recording of the complainant viewing the recording of their evidence given under new section 367. The recording is to be presented to the court in that particular form. New section 373 provides an exception where exceptional circumstances exist. Subsection (2) provides that the complainant may give direct testimony in a proceeding if, on the application of the prosecution, the court is satisfied that the complainant is aware of their right to give evidence at a special hearing and the complainant wishes to give direct testimony. New section 371 New section 371 sets out the time limits for holding a special hearing. The special hearing must be held within three months after the day on which the accused is committed for trial and in the court where the indictment is filed (either the County Court or Supreme Court). Subsection (2) enables the court to extend the time for holding a special hearing if, because of exceptional circumstances, it is in the interest of justice to do so. Subsection (3) is new and clarifies that the court may extend the time limit before or after the 3 month time limit expires. Subsection (4) enables the court to extend the time limit on more than one occasion. New section 372 New section 372 sets out how a special hearing is to be conducted. Subsection (1) provides that the accused and their legal practitioner are to be present in the courtroom. However, the accused is not to be present in the same room as the complainant when the complainant's evidence is being taken but is entitled to see and hear the complainant giving evidence. Subsection (1)(c) provides that no person, other than a person authorised by the court, may be in the courtroom or the room in which the complainant is giving evidence for the duration of the complainant's evidence. The inclusion of "courtroom" is new 24

 


 

and makes clear that no person other than an authorised person may view the evidence of the complainant in the courtroom. Subsection (1)(d) requires the evidence of the complainant at a special hearing to be given by CCTV or other facilities to enable communication between the room and the courtroom. Subsection (2) provides that the room in which the complainant gives evidence is taken to be part of the courtroom while the complainant is there for the purpose of giving evidence. New section 373 New section 373 provides that the recording tendered must be the best available record. The best available record of the evidence is defined as the audiovisual recording of the evidence. However, subsection (3) provides that, in exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit an audio recording of the evidence if an audiovisual recording is unavailable. This is a new section that is intended to enable the audio recording of evidence to be admitted in exceptional circumstances, such as where the recording of the visual image was not working for part of the recording of the evidence. New section 374 New section 374 sets out that the recording is admissible as if it were the direct testimony of the complainant in the proceeding and, unless the relevant court otherwise orders, in: · any new trial or appeal from the proceeding; or · another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or · a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded. Subsection (3) enables the court to rule as inadmissible the whole or any part of the recording and to direct that the recording be altered or edited to remove any part that is inadmissible. A recording cannot be edited or altered without the court making a ruling with respect to admissibility. Either party may apply to the court for such a ruling, in accordance with section 337 of the Criminal Procedure Act 2009. Subsection (6) provides that if a recording is admitted into evidence in a proceeding, the complainant is not required to attend to give evidence unless required to do so for cross- examination or re-examination under new section 376(3). 25

 


 

New section 375 New section 375 requires the judge to warn the jury that: · it is routine practice to use the special hearing process; and · no adverse inference may be drawn against the accused as result of the evidence being recorded; and · the evidence of the complainant is not to be given any lesser or greater weight because it is recorded. New section 376 New section 376 provides that a complainant cannot be cross- examined or re-examined without the leave of the court. Subsection (2) sets out when the court may grant leave. The situations focus on balancing the interests of the complainant avoiding the stress of giving evidence again and the need to ensure that the accused has a fair trial. Subsection (3) provides that, if leave is granted, the complainant must attend the proceeding to be cross-examined or re-examined. New section 377 New section 377 sets out definitions of asserted fact, hearsay rule and previous representation. Section 66 of the Evidence Act 2008 provides an exception to the hearsay rule with respect to a previous representation if the maker is available to give evidence about an asserted fact. Section 66 requires the asserted fact to be fresh in the memory of the accused. New section 377 extends that exception so that it applies specifically to children. It is not limited to the asserted fact being fresh in the memory of the child. Subsection (2) sets out that the section applies to a criminal proceeding that wholly or partly relates to a charge for a sexual offence where the complainant is a child. The section applies to a previous representation made by the complainant and either the complainant is available to give evidence about an asserted fact or the complainant's credibility is relevant. Subsection (3) provides that the hearsay rules does not (subject to subsection (4)) apply to evidence given by the complainant or another person, to support an asserted fact or the complainant's credibility. 26

 


 

Subsection (4) provides that subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made. Subsection (6) provides that evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness. New Division 7--Admission of recorded evidence of complainant in sexual offence matters Division 7 is new. It provides for the recorded evidence of an adult complainant at trial to be admissible in a subsequent trial (a new trial ordered on appeal or a mistrial). It does not apply to summary proceedings. The Division is structured differently to Division 6 in that it requires the prosecution to make an application to have recorded evidence admitted. A complainant will give direct testimony in a subsequent trial unless the court grants the prosecution application to use a recording. The court must determine whether it is appropriate to admit the evidence, having regard to a series of factors including the fairness to the accused. New section 378 New section 378 provides that this Division applies to a criminal proceeding that wholly or partly relates to a charge for a sexual offence. The Division applies to a recording of evidence (including cross- examination and re-examination) of a complainant given at trial, other than a child or cognitively impaired complainant who gives evidence in a special hearing under Division 6. If a child or cognitively impaired complainant chooses to give evidence by direct testimony at trial (that is not at a special hearing), this Division would apply to him or her. Subsection (4) provides that the Division also applies to a recording of the partial evidence of the witness. This may be relevant where a complainant has substantially completed their evidence, but has not completed giving evidence when the jury is discharged without verdict. Rather than requiring the witness to give all their evidence again, a partial recording could be used, supplemented by further evidence given by direct testimony from the witness. 27

 


 

New section 379 New section 379 provides that a recording is admissible in evidence as if it were direct testimony in: · the proceeding; and · any new trial of, or appeal from, the proceeding; or · another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or · a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded. This is similar to new section 374 which applies to the record of evidence taken at a special hearing. New section 380 New section 380 provides that if the prosecution intends to apply to tender a recording, the prosecution must serve on the accused and file in court written notice of their intention at least 21 days before the day on which the trial is listed to commence. This period of notice is commonly used in the Evidence Act 2008. It will be particularly relevant where a new trial is ordered on appeal. However where a jury is discharged without verdict, a new trial may commence the next day. Subsection (2) enables the court to dispense with this notice requirement. New section 381 New section 381 provides that the court may admit a recording of evidence that the prosecution seeks to tender if it is in the interests of justice to do so, have regard to the following matters: · whether the complainant's recorded evidence is complete, including cross-examination and re-examination; · the effect of editing any inadmissible evidence from the recording; · the availability or willingness of the complainant to give further evidence; · any other matter that the court considers relevant. 28

 


 

The court must also have regard to whether the accused would be unfairly disadvantaged by the admission of recorded evidence. This is important to ensure fairness to the accused. The list of factors enables the court to assess each application on a case by case basis. New subsection (2) provides that the court may admit the whole or any part of the recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible. A recording cannot be edited or altered without the court making a ruling with respect to admissibility. Either party may apply to the court for such a ruling, in accordance with section 337 of the Criminal Procedure Act 2009. New section 382 New section 382 requires the judge to warn the jury that: · no adverse inference may be drawn against the accused as result of the evidence being recorded; and · the evidence of the complainant should not be given any lesser or greater weight because it is recorded. New section 383 New section 383 provides that a complainant is not required to attend the proceeding to give direct testimony if recorded evidence is admitted into evidence, subject to new sections 384 and 385. New section 384 New section 384 provides that, on the application of the prosecution, the court may direct that the complainant give direct testimony additional to a recording admitted into evidence if the court is satisfied that the complainant is able and wishes to give direct testimony and it is in the interests of justice to do so. A complainant may be cross-examined and re-examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1). If the complainant does give direct testimony, the alternative arrangements in Division 4 apply. 29

 


 

New section 385 New section 385 provides that a complainant cannot be cross- examined or re-examined without the leave of the court. Subsection (2) sets out when the court may grant leave. The situations focus on balancing the interests of the complainant avoiding the stress of giving evidence again and the need to ensure that the accused has a fair trial. Subsection (3) provides that, if leave is granted, the complainant must attend the proceeding to be cross-examined or re-examined. This is based on new section 376, which relates to a complainant who gives evidence at a special hearing in Division 6. New section 386 New section 386 provides that the recording tendered must be the best available record. The best available record of the evidence is defined as the audiovisual recording of the evidence. However, subsection (3) provides that, in exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit an audio recording of the evidence if an audiovisual recording is unavailable. This is a new section that is intended to enable the audio recording of evidence to be admitted in exceptional circumstances, such as where the visual image was not working for part of the recording of the evidence. This new section is similar to new section 373 which applies in relation to the best available record taken at a special hearing. New section 387 New section 387 provides an exception to the hearsay rule to enable the admission of a recording of evidence in a subsequent proceeding or the use of the recording to prove the existence of an asserted fact. New Division 8--Miscellaneous New section 388 New section 388 enables the court to receive evidence of a person's opinion that is based on the person's specialised knowledge. This is based on section 37E of the Evidence Act 1958. 30

 


 

While this section is similar to section 79 of the Evidence Act 2008, it is different in several ways. Section 79 of the Evidence Act 2008 concerns child development and behaviour, including the impact of sexual abuse. New section 388 provides that an area of specialised knowledge, which is not limited to children, includes: · the nature of sexual offences; and · the social, psychological and cultural factors that may affect the behaviour of a person who has been a victim; and · the reasons that may contribute to delay in a victim of a sexual offence reporting the offence. New section 389 New section 389 applies specifically to section 49A(1) of the Crimes Act 1958, which is the offence of facilitating sexual offences against children. The section enables a witness to give evidence from outside Australia by audiovisual link. The court must be satisfied of a number of factors prior to ordering that a witness give evidence by audiovisual link under subsection (2). Subsections (3) to (7) set out the procedure and requirements if a witness is to give evidence from overseas. This new section is based on section 37D of the Evidence Act 1958. Clause 51 makes cross-referencing amendments to the Criminal Procedure Act 2009. As a result of the insertion of the new Part 8.2 (see clause 50) all subsequent section numbers have been changed. Accordingly, where the Act refers to a section number that has changed, that cross-reference is updated by this clause of the Bill. Clause 52 amends section numbers for sections 338 to 361 of the Criminal Procedure Act 2009. As a result of the insertion of the new Part 8.2 (see clause 50) all subsequent section numbers have been changed. For example, section 347 becomes section 399 and Part 8.3 becomes Part 8.4. Clause 53 inserts a new section 414 into the Criminal Procedure Act 2009. This clause is connected to clause 9 of this Bill. The new section sets out the offence of acknowledging a false statement. The offences in sections 38, 47 and 112, which are repealed by clause 9 of this Bill, are limited in that they apply to statements that the informant intended to use for a specific 31

 


 

purpose (e.g. statements made as part of full brief or hand-up brief processes). The offence does not extend to statements made for the purposes of: · a preliminary brief (other than the informant's statement); · a statement prepared following the completion of a full brief as part of the prosecution's obligation of ongoing disclosure; · a statement prepared following committal proceedings that is disclosed as part of the ongoing obligation of disclosure, either as part of a Notice of Additional Evidence (section 188) or following a direct indictment (section 185). The notes at the foot of this new section indicate that section 314 of the Crimes Act 1958 provides for the offence of perjury and that sections 38, 47 and 112 of the Criminal Procedure Act 2009 set out rules with respect to statements in summary hearings and committal proceedings. Clause 54 amends section numbers of section 362 onwards in the Criminal Procedure Act 2009. As a result of the insertion of the new Part 8.2 (see clause 50) and new section 414, all subsequent section numbers have been changed. Clause 55 inserts a new Chapter 10 into the Criminal Procedure Act 2009. Chapter 10--Savings and Transitional Provisions--provides that Schedule 4 of the Criminal Procedure Act 2009 has effect. New Schedule 4 is inserted into the Criminal Procedure Act 2009 by clause 58 of this Bill. Clause 56 substitutes a new, revised version of Schedule 2 to the Criminal Procedure Act 2009. Schedule 2 to the Criminal Procedure Act 2009 lists some indictable offences that may be heard and determined summarily. Schedule 2 is based on Schedule 4 to the Magistrates' Court Act 1989. A number of Acts or offences under Acts have not been included from Schedule 4 as a result of the clearer description of which indictable offences may be heard and determined summarily in section 28 of the Criminal Procedure Act 2009. 32

 


 

The substituted Schedule 2 inserted into the Criminal Procedure Act 2009 by this Bill, removes the following Acts or offences under Acts from the Schedule: · Item 2--Offences under section 5(1A) of the Control of Weapons Act 1990--the maximum penalty for this offence is 4 years imprisonment or 480 penalty units. As this fits within section 28 of the Criminal Procedure Act 2009, it is not necessary to list this offence in Schedule 2. · Item 25--Offences under the Sex Offenders Registration Act 2004--section 46(1) is punishable by level 6 imprisonment (5 years) and therefore does not need to be listed in Schedule 2. In addition, item 16, the Infertility Treatment Act 1995 has been removed from the Schedule. That Act is to be repealed by section 126 of the Assisted Reproductive Treatment Act 2008. Indictable offences under the Assisted Reproductive Treatment Act 2008 now appear at item 3 of the substituted Schedule. Similarly, item 26, the Sports Event Ticketing (Fair Access) Act 2002 has been removed from the Schedule. That Act has been repealed by the Major Sporting Events Act 2009 (which has already commenced). Indictable offences under the Major Sporting Events Act 2009 now appear at item 19 of the new Schedule. New Schedule 2 also includes a number of Acts or offences under Acts that were not initially included in the Criminal Procedure Act 2009. These include: · Item 2--Indictable offences under the Aboriginal Heritage Act 2006. · Item 7--Electricity Industry Act 2000. To the offences already listed under this Act in the Criminal Procedure Act 2009, sections 93A(1) and (2) of the Electricity Industry Act 2000 have been added. These sections establish new indictable offences of failing to comply with safety duties in relation to works on or in the immediate vicinity of rail infrastructure or rolling stock. · Item 9--Indictable offences under the Environment Protection Act 1970. This Act appeared in Schedule 2 to the Criminal Procedure Act 2009. However, in the 33

 


 

substituted Schedule this item has been amended to add another condition to the circumstances in which the exception to the new maximum penalty applies (sections 380 and 381, which will be sections 433 and 434 by virtue of clause 52 of this Bill, create a new maximum fine of 500 penalty units for a natural person in summary matters). To the condition that there must be 2 or more accused, one of whom is a natural person charged under section 66B of that Act, this Bill adds that one of the accused must be a body corporate before the court may impose a fine of up to 2500 penalty units on a natural person, for a single offence. · Item 13--Indictable offences under the Gas Industry Act 2001. This Act appeared in Schedule 2 to the Criminal Procedure Act 2009. However, in the substituted Schedule 2 the reference to offences under section 186(9) has been removed as that section has been repealed by the Energy Legislation Amendment (Australian Energy Market Operator) Act 2009. Further, sections 149A(1) and (2) of the Gas Industry Act 2001 have been added. These sections establish new indictable offences of failing to comply with safety duties in relation to works on or in the immediate vicinity of rail infrastructure or rolling stock. · Item 23--Indictable offences under the Prohibition of Human Cloning for Reproduction Act 2008. · Item 25--Indictable offences under the Rail Safety Act 2006. Indictable offences under this Act can now be heard and determined summarily. · Item 26--Indictable offences under the Research Involving Human Embryos Act 2008. · Item 29--Indictable offences under the Transport Act 1983. Indictable offences under this Act can now be heard and determined summarily. Other amendments to the Schedule are designed to ensure consistency in terminology. Currently, some items appearing in Schedule 2 to the Criminal Procedure Act 2009 refer to "Indictable offences under the [name of relevant Act]". Other items specify the particular section numbers of the offences 34

 


 

in the relevant Act even where the specified sections are the only indictable offences in the Act. For example: "Item 18.1 Offences under section 66(1), 77(1), 78(1), 78(2) or 78(6) of the Juries Act 2000." Where all indictable offences under an Act, that are not already triable summarily under section 28 of the Criminal Procedure Act 2009, are appropriate to be tried summarily, it is not necessary to specify each indictable offence. Where only some indictable offences under an Act are appropriate to be heard and determined summarily, it is necessary to specify which offences they are. Indictable offences which do not fall within section 28 (including those listed in Schedule 2) cannot be tried summarily. Clause 57 amends Schedule 3 to the Criminal Procedure Act 2009. Schedule 3 sets out those persons who may witness statements in a preliminary brief, full brief or hand-up brief. Schedule 3 is primarily based on the list of persons able to witness statements tendered in committal proceedings that was previously in Rule 12.04 of the Magistrates' Court (Committal) Rules 1999. Clause 57 makes a number of amendments to the Schedule as a result of changes to organisational and department names or changes in the way authorised persons are referred to. For example, in relation to item 26, the "Department of Education, Science and Training" was replaced by the "Department of Education, Employment and Workplace Relations". This new department is covered in item 6 to Schedule 3. Therefore, item 26 has been repealed. Clause 58 inserts a new Schedule 4 to the Criminal Procedure Act 2009 which contains savings and transitional provisions for that Act. Clause 1 in the Schedule defines commencement day as the day on which the Criminal Procedure Act 2009 comes into operation (other than Chapter 1 and section 437). Superseded provision is defined as a provision of an Act that has been amended or repealed by the Criminal Procedure Act 2009 or this Bill. Clause 2 provides a general transitional provision. Clause 2(1) indicates that except where a contrary intention appears, new Schedule 4 does not detract from or affect the operation of the Interpretation of Legislation Act 1984. 35

 


 

Clause 2(2) provides that if a superseded provision of an Act continues to apply by force of the new Schedule 4, then any other provision from the Act necessary to give effect to that continued provision or any regulations or rules of court made for the continued provision, will also continue to apply. Clause 3 provides that on and from commencement day, any reference to a provision of the Criminal Procedure Act 2009 that has been renumbered by virtue of clauses 52 or 54 of this Bill, must be taken to be a reference to the provision as renumbered or relocated. Clause 4 provides that references in documents, rules and regulations etc that refer to a provision which is a superseded provision (as defined in clause 2) must be construed as a reference to the relevant provision in the Criminal Procedure Act 2009. This is relevant to the many provisions from the Crimes Act 1958, Crimes (Criminal Trials) Act 1999 and the Magistrates' Court Act 1989 that have been either re-enacted or there are provisions to similar effect in the Criminal Procedure Act 2009. Clause 5(1) provides that Chapter 2 of the Criminal Procedure Act 2009 (which relates to commencing a criminal proceeding) applies to a criminal proceeding commenced on or after commencement day, regardless of when the offence is alleged to have been committed. The Note at the foot of clause 5 refers to section 5 of the Criminal Procedure Act 2009 which sets out how a criminal proceeding is commenced. The effect of this transitional would be to permit a Notice to Appear to be served after the commencement day in relation to an offence which is alleged to have been committed before the commencement day. Clause 5(2) clarifies that current law in operation prior to the commencement of the Criminal Procedure Act 2009 (i.e. Part 4 of the Magistrates' Court Act 1989) applies to any proceeding where that criminal proceeding commenced before the commencement of the Criminal Procedure Act 2009. Clause 6 relates to Chapter 3 of the Criminal Procedure Act 2009 (which sets out new summary procedures). Clause 6 mirrors the transitional provision for Chapter 2 of the Criminal Procedure Act 2009 in clause 5. Clause 6 applies to a criminal proceeding commenced on or after commencement day, regardless of when the offence is alleged to have been committed. The Note at the foot of clause 5 refers to section 5 of the Criminal Procedure Act 2009 which sets out how a criminal proceeding is commenced. 36

 


 

Clause 7 relates to Chapter 4 of the Criminal Procedure Act 2009 (which sets out procedures for committal proceedings). Clause 7 mirrors the transitional provision for Chapters 2 and 3 of the Criminal Procedure Act 2009 in clauses 5 and 6. The relevant trigger for the application of the proceedings is when the criminal proceeding commences (rather than when the committal proceeding commences). Clauses 5(2), 6(2) and 7(2) are necessary to continue the application of existing laws to other summary proceedings and committal proceedings which commence before the commencement day, and the powers that need to be used after the commencement day. Clause 7 contains a further subclause (3) which relates to the transfer of summary offences that are related offences, on a committal proceeding (section 145 of the Criminal Procedure Act 2009). Subclause (3) provides that section 145 applies to an accused who is committed for trial on or after the commencement day. This means that if a proceeding for a related summary offence had commenced prior to the commencement day, that proceeding could still be transferred as long as the accused was committed for trial on the related indictable offence on or after the commencement day. Clause 8 sets out transitional provisions in relation to Chapter 5 of the Criminal Procedure Act 2009 which contains procedures for trials. Clause 8(1) provides that the provisions in Chapter 5 apply to any proceeding where the accused is committed to stand trial, or is directly indicted on or after the commencement day. This transitional provision is of broad (and ongoing) application. It applies to all new matters. Pursuant to clause 5, Chapter 2 applies to a criminal proceeding which commences on or after the commencement day, whereas Chapter 5 applies on and from the commencement day, to a trial where the accused was committed for trial on or after the commencement day. Clause 8(2) clarifies that where a proceeding commenced before the commencement day but to which Chapter 5 applies, that proceeding is deemed to be a criminal proceeding commenced under Chapter 2. 37

 


 

Clause 8(3) provides that on and from the commencement day: (a) section 168 of the Criminal Procedure Act 2009 (which allows indictable offences that can be heard summarily to be transferred back to the Magistrates' Court if the accused consents and the court considers it appropriate) applies to an accused committed for trial before the commencement day; and (b) sections 216 and 241 (which relate to the entering of pleas and the recording of convictions) apply to an accused committed for trial, or directly presented for trial, before the commencement day (and a presentment is treated as if it were an indictment filed under the Criminal Procedure Act 2009 for the purposes of this clause). Clause 8(4) provides that relevant legislation in force immediately before the commencement of the Criminal Procedure Act 2009 will continue to apply to an accused who was committed for trial, or was given a notice of trial, or a notice of intention to prefer a presentment, before the commencement day. Clause 9 provides that where a new trial or further hearing is ordered on appeal, the Criminal Procedure Act 2009 applies to the new trial or further hearing. The exception to this is where the new trial or further hearing is ordered on an interlocutory appeal or case stated. In that situation, to avoid changing the relevant criminal procedure laws in the middle of a trial or potentially within days of the previous trial, the new Act does not apply. Clause 10 The relevant point for the application of most appeals is when the sentence is imposed. This applies to appeals from the Magistrates' Court to the County Court or the Supreme Court under Parts 6.1 and 6.2. The same test applies for appeals to the Court of Appeal under Part 6.3. In relation to an interlocutory appeal, the relevant point for the application of the provisions is when the decision, which is the subject of the appeal, is made. In relation to cases stated, the relevant point for the application of the provisions is when the question of law arises. Clause 11 provides that Chapter 7 of the Criminal Procedure Act 2009 applies to a petition for mercy made on or after the commencement day, regardless of when of when the proceeding in relation to which the petition is made commenced. 38

 


 

Clause 11(2) provides that if the petition relates to a criminal proceeding commenced by a presentment under section 353 of the Crimes Act 1958, Chapter 7 will still apply to that petition as if references to presentment and indictment were interchangeable. Clause 12 New Part 8.2 of the Criminal Procedure Act 2009 deals with evidence in sexual offence and family violence cases. Given the connections with the Evidence Act 2008 clause 12 aligns the transitional provisions for Part 8.2 with the transitional provisions for the Evidence Act 2008. New Part 8.2 applies to all hearings on or after the commencement date but does not apply to a hearing in a proceeding that is part heard on the commencement day as defined in clause 12(2). Where new Part 8.2 does not apply to a hearing, the law in force under the Evidence Act 1958 before the commencement day (including any superseded provisions) continues to apply to that proceeding. Where a special hearing is conducted before the commencement day, and it is used in a trial which commences after the commencement day, the special hearing is treated as if it had been conducted under new Part 8.2 of the Bill. Clause 13 relates to costs in criminal proceedings (set out in Part 8.4 of the Criminal Procedure Act 2009). It provides that on and from the commencement day Part 8.4 applies to any proceeding to which the Criminal Procedure Act 2009 applies. Subclause (2) clarifies that where a proceeding commenced before the commencement of the Criminal Procedure Act 2009 but is completed after this Act commences, the proceeding is deemed to have been conducted under Criminal Procedure Act 2009. Clause 14 relates to new section 412 of the Criminal Procedure Act 2009 (or section 360 prior to the renumbering in clause 52 of this Bill). This section gives a broad power to amend documents relevant to criminal proceedings. Clause 14 provides that on and from the commencement day, section 412 of the Criminal Procedure Act 2009 applies to any summons, warrant, plea, judgment or order irrespective of when it was issued or made. 39

 


 

Clause 15 relates to new section 413 of the Criminal Procedure Act 2009 (or section 361 prior to the renumbering in clause 52 of this Bill). This section provides a method of dealing with a charge which is erroneously before a court which has no jurisdiction to hear it. Clause 15 provides that on and from the commencement day, section 413 of the Criminal Procedure Act 2009 applies to any charge before a court, irrespective of when the charge was filed. Clause 16 provides that the new offence in new section 414, acknowledging a false statement, applies where the offence is alleged to have been committed on or after the commencement day. Clause 17 permits the making of regulations to address savings or transitional provisions in addition to those contained in this Schedule. PART 3--AMENDMENT OF CHILDREN, YOUTH AND FAMILIES ACT 2005 Clause 59 amends the definitions of accountable undertaking and child in section 3(1) of the Children, Youth and Families Act 2005 and replaces the definition of sentencing order with a new definition of sentence in the same section. The reference to sentencing order is replaced with sentence because the Criminal Procedure Act 2009 no longer uses the term sentencing order. Clause 59 also inserts definitions of appeal, appeal period, appellant, appellate court, conviction and President into section 3(1) of the Children, Youth and Families Act 2005. Clause 60 inserts a new section 328(6) which replaces section 328(6) and (7) of the Children, Youth and Families Act 2005. Section 328(1) of the Children, Youth and Families Act 2005 provides a right of appeal to the County Court and, in some circumstances, the Trial Division of the Supreme Court against various decisions of the Children's Court in relation to child protection matters. Section 328(6) and (7) of the Children, Youth and Families Act 2005 provide relevant laws for these appeals by adopting and modifying appeal provisions used for appeals from the Criminal Division of the Children's Court. These provisions, in turn, adopt and modify appeal provisions from the Magistrates' Court Act 1989. In addition to the express modifications made to provisions, it is also sometimes necessary to make any necessary 40

 


 

modifications to the provisions to ensure that they work effectively for appeals from the Children's Court. Clause 69 of this Bill creates new appeal provisions for the Criminal Division of the Children's Court. The appeal provisions have been expressly adapted for appeals from the Children's Court, making the law much clearer and easier to follow. New section 328(6) identifies the sections in criminal appeals that are relevant to appeals under section 328 and applies them and makes some modifications so that they apply effectively. These modifications include treating a reference to the "sentence" as if it were a reference to the order or dismissal that is the subject of the appeal. Clause 60 also amends subsections (9) and (10) of section 328 and makes necessary modifications to cross-references to the Magistrates' Court Act 1989 to reflect the updated appeals provisions set out in substituted Part 5.4 of the Children, Youth and Families Act 2005. In subsection (10) the references to section 524, 526 and 527 have been removed because the substance of these provisions is expressly dealt with by sections adopted in new section 328(6). Clause 61 amends section 340(c) of the Children, Youth and Families Act 2005 by replacing the reference to "the Director of Public Prosecutions" with "DPP". Clause 62 amends section 345(1) of the Children, Youth and Families Act 2005 by replacing the reference to "charge" with "charge-sheet" to align terminology with the Criminal Procedure Act 2009. Clause 62(2) amends section 345(2) by deleting the cross- reference to section 28 of the Magistrates' Court Act 1989. Section 28 is repealed by section 374(1)(c) of the Criminal Procedure Act 2009. The new cross-reference is to section 12 of the Criminal Procedure Act 2009 which is very similar to section 28 of the Magistrates' Court Act 1989. Clause 63 amends section 346(10) of the Children, Youth and Families Act 2005 by replacing the reference to "charge" in this section with "hearing of the charge" to align the language used in the Criminal Procedure Act 2009. Clause 64 amends terminology used in section 349(1)(a) and (2)(a) of the Children, Youth and Families Act 2005. The Criminal Procedure Act 2009 refers to an accused rather than a defendant. 41

 


 

Clause 65 amends section 352 of the Children, Youth and Families Act 2005 by replacing the reference to "a defendant" in this section with "an accused". Clause 66 amends the heading to Division 3 of Part 5.2 of Chapter 5 of the Children, Youth and Families Act 2005 to be consistent with descriptions of certain offences in the Criminal Procedure Act 2009. Clause 67 amends the heading to section 356 of the Children, Youth and Families Act 2005 to be consistent with descriptions of certain offences in the Criminal Procedure Act 2009. Clause 68 amends the language used throughout Part 5.3 of the Children, Youth and Families Act 2005 to achieve consistency with language used throughout the Criminal Procedure Act 2009. The Criminal Procedure Act 2009 refers to a "sentence" rather than a "sentencing order" which is currently used in the Children, Youth and Families Act 2005. Clause 68 makes the following amendments to Part 5.3 of the Children, Youth and Families Act 2005: · replaces references to sentencing orders with references to sentence in headings and sections in Part 5.3; · inserts a new section 381(4)(g) and makes drafting changes, but no changes of substance, to the existing section 381(4)(g); · replaces the reference to "accused person" with "accused" in each of sections 409(8), 420(1) and 421(8); · changes the cross-reference to section 49 of the Magistrates' Court Act 1989 with a reference to section 333 of the Criminal Procedure Act 2009 (these provisions are to similar effect); · inserts a new section 423(9) which replaces the existing subsection in the Children, Youth and Families Act 2005. Clause 69 substitutes a new Part 5.4 into the Children, Youth and Families Act 2005. It sets out the procedure for criminal appeals from the Children's Court. The existing Part 5.4 provides that the appeal provisions set out in the Magistrates' Court 1989 apply with some expressly provided changes and then with any further necessary modification. The Criminal Procedure Act 2009 42

 


 

repeals those provisions; provisions in Chapter 6 of the Criminal Procedure Act 2009 replace them. New Part 5.4 is, as far as possible, consistent with the appeal provisions in Chapter 6 of the Criminal Procedure Act 2009. New Division 1--Appeal by offender to the County Court or Trial Division of the Supreme Court New section 424 New section 424 provides that a person convicted of a criminal offence in the Children's Court may appeal to the County Court, or if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court either against the conviction and sentence imposed by the Court or against the sentence alone. Currently, section 424(1) does not distinguish between appeals against conviction and appeals against sentence. Instead, it provides that a person may appeal to the appellate court "against any sentencing order made against that person by the Children's Court in a proceeding in the Criminal Division". This means that a person who has been found guilty by the Children's Court and who wishes to appeal against the finding of guilt does so by appealing against the sentencing order, even if he or she does not consider that the sentencing order itself was excessive. Conversely, it also means that a person who originally pleaded guilty and who does not contest the finding of guilt but who simply considers that the sentence imposed was excessive must nevertheless in effect appeal against the finding of guilt and the sentence. New section 424 clarifies this by referring to an appeal to the County Court or the Trial Division of the Supreme Court (as the case requires) against: · the conviction and sentence imposed by the Children's Court; or · the sentence alone. New section 425 New section 425 sets out how an appeal is commenced, namely by filing a notice of appeal, which must comply with the new section and be in a form prescribed by the rules of the appellate court, at any venue of the Children's Court within 28 days of sentencing. A copy of the notice of appeal must be served within 7 days of filing the notice. 43

 


 

New section 426 New section 426 sets out certain powers and obligations of the appellate court when hearing an appeal under new section 424. In particular, an appeal must be conducted as a rehearing and the appellant is not bound by the plea entered in the Children's Court. The appellate court must set aside the sentence of the Children's Court and may impose any sentence which the Children's Court could have imposed and may exercise any power which the Children's Court could have exercised. New section 426(3) requires the appellate court to warn the appellant, as early as possible during the hearing that a more severe sentence may be imposed. The Victorian Parliament Law Reform Committee (the VPLRC) in its report on De Novo Appeals to the County Court recommended that the current law be amended so that the County Court be required to provide a warning, as early as possible during the hearing, if the court is considering imposing a more severe sentence than the sentence originally imposed in order to give the appellant an opportunity to abandon the appeal. While the VPLRC's report considered appeals from the Magistrates' Court, this aspect of the report is also relevant to criminal appeals from the Children's Court. New section 426(6) limits the orders that the appellate court may make when determining an appeal against an order under section 363, 365 or 367 of the Children, Youth and Families Act 2005. New section 426(7) provides that, where the appellant is guilty of more than one offence, the appellate court may only order detention in a youth residential centre or youth justice centre for an aggregate period that is no longer than the aggregate period specified in the original sentence, regardless of whether the appellant is sentenced to a separate period of detention for each offence or given an aggregate period. Section 426(9) provides that the appellate court may make a probation order, youth supervision order or youth attendance order for a person of or above the age of 19 years but under 21 years. New Division 2--Appeal by DPP against sentence New section 427 New section 427 allows the DPP to appeal to the appellate court against a sentence imposed in the Children's Court if satisfied that an appeal should be brought in the public interest. 44

 


 

New section 428 New section 428 sets out how an appeal by the DPP is commenced, namely by filing a notice of appeal, which must comply with the clause and the rules, in the Children's Court within 28 days of sentencing. A copy of the notice of appeal must be served personally on the respondent within 7 days after the day the notice is filed. Service for such appeals is personal because it is a significant new step in a proceeding and the sentenced person may presume the matter is finished. Further, the DPP is required to provide a copy of the notice of appeal to the legal practitioner who last represented the respondent, if they can reasonably be identified. New section 429 New section 429 contains various powers and obligations of the County Court or Supreme Court (as the case requires) in determining a DPP appeal, including that it is to be conducted as a rehearing, with the result that the respondent is not bound by the plea entered in the Children's Court. In new section 429(2) the County Court or Supreme Court (as the case requires) must set aside the sentence of the Children's Court and impose any appropriate sentence which the Children's Court could have imposed and exercise any power which the Children's Court could have exercised. In imposing a sentence, the County Court or Supreme Court (as the case requires) must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate (new section 429(6)). New section 429(4) provides that, where the appellant is guilty of more than one offence, an order for detention in a youth residential centre or youth justice centre for an aggregate period must not be longer than the aggregate period specified in the original sentence, regardless of whether the appellant is sentenced to separate periods of detention for each offence or given an aggregate period. A sentence may be backdated to a date on or after the date of the original sentence of the Children's Court and a sentence imposed under this clause is for all purposes to be regarded as a sentence of the County Court or the Supreme Court (as the case requires). 45

 


 

Section 429(9) provides that the appellate court may make a probation order, youth supervision order or youth attendance order for a person of or above the age of 19 years but under 21 years. New Division 3--Procedure on appeals from Children's Court New section 430 New section 430 deals with late notices of appeal. A notice of appeal filed late is deemed to be an application for leave to appeal on the grounds stated in the notice. The appellate court may grant leave to appeal under subclause (1) and the appellant may proceed with the appeal if the late notice of appeal was due to exceptional circumstances and the respondent's case would not be materially prejudiced because of the delay. New section 430A New section 430A provides for the stay of orders if the appellant appeals against sentence. If an appellant appeals against sentence and is not in custody as a result of that sentence, the appeal operates as a stay of the sentence (but not of the conviction) when the appellant files the notice of appeal and signs the undertaking referred to in new section 425(4)). Pursuant to subclause (2), if an appellant appeals against sentence and is in custody because of that sentence, the appeal operates as a stay of sentence (but not a conviction in respect of the sentence) only once the appellant enters bail, if bail is granted under new section 430B. This new section is subject to section 29 of the Road Safety Act 1986. New section 430B New section 430B allows an appellant who is in custody because of the sentence appealed against to apply to the Children's Court for bail. If an application for bail is made, the applicant must give notice to the respondent. The Children's Court may either grant or refuse bail as if the appellant were a child taken into custody and Division 1 of Part 5.2 of the Children, Youth and Families Act 2005 applies. New section 430C New section 430C sets out the procedure that applies when an appellant wishes to abandon an appeal. 46

 


 

Under new section 430C(3), if an appellant appeals against both conviction and sentence but decides not to pursue the appeal against conviction, the appellant must give both the court and the respondent written notice that he or she is abandoning the appeal against conviction. This avoids the inconvenience of the current practice of listing the appeal in order for the appeal against conviction to be formally abandoned. A notice of abandonment of appeal must be in the form prescribed by the rules of the appellate court. New section 430C(4) states that an appeal against sentence in which a term of detention was imposed can be abandoned if the appellant is not in custody by surrendering to the registrar of the appellate court and filing a notice in the prescribed form. If the appellant is in custody, he or she may abandon the appeal simply by filing a notice in the prescribed form. The registrar of the County Court, or the prothonotary of the Supreme Court or a Supreme or County Court judge can issue a warrant to detain in a youth residential centre or a youth justice centre in relation to Children's Court sentences. As the appellant (under new subsection (4)(a)) is required to surrender to the registrar or prothonotary, the provision enables the registrar or prothonotary to issue a warrant to detain. This is the most practical way for the warrant to detain to be issued, even though once the appeal is struck out under subsection (6), it is the sentence of the Children's Court that is reinstated and to which the warrant to detain relates. Item 82.28 amends the Magistrates' Court Act 1989 to specifically provide the registrar of the County Court, or the prothonotary of the Supreme Court, with the power to issue a warrant to detain in a youth justice centre or a youth residential centre. If an appellant abandons an appeal, the appellate court must strike out the appeal. If an appeal is struck out under this clause: · the order of the Children's Court may be enforced as if an appeal had not been made except that time is deemed not to have run during the period of any stay; and · the registrar of the appellate court must give the respondent a copy of the order striking out the appeal. The new section makes clear that if an appeal is struck out, then the Children's Court sentence is reinstated and can be enforced. This addresses a potential interpretation of the 47

 


 

provisions that where an appeal is abandoned and struck out after the appeal hearing commences (and the sentence has therefore been set aside), the sentence to be enforced is technically a sentence of the County Court (see Helfenbaum v Sattler [1999] 3 VR 583, 587 [23]). New section 430D New section 430D sets out the procedure if an appellant fails to appear at an appeal and permits the appellate court to strike out or adjourn the appeal. If an appeal is struck out: · the order of the Magistrates' Court may be enforced as if an appeal had not been made except that time is deemed not to have run during the period of any stay under clause 264; and · the registrar of the County Court must give the respondent a copy of the order striking out the appeal. The County Court can set aside an order striking out an appeal due to the failure of the appellant to appear if the court is satisfied that the failure to appear did not result from any fault or neglect by the appellant. New subsection (7) provides for the automatic stay of a sentence (but not a conviction in respect of the sentence) when an appeal is reinstated under new subsection (6). This follows the same model as in sections 264 and 265 of the Criminal Procedure Act 2009 in that a custodial sentence will not be stayed until appeal bail is granted. New section 430E New section 430E sets out the procedure in cases in which the respondent fails to appear at an appeal by the DPP, in which case the appellate court can adjourn the appeal or hear and determine the appeal in the absence of the respondent. However, the appellate court cannot impose a sentence that requires the consent of the respondent (such as a youth supervision order) in the respondent's absence. If the appellate court adjourns the proceeding, it may issue a warrant to arrest the respondent. 48

 


 

New section 430F New section 430F allows the appellant to give one notice of appeal for all or any of the sentences in cases where two or more sentences are imposed in respect of charges that have been heard together. New section 430G New section 430G provides that, if a person is authorised by or under another Act to appeal from an order of the Children's Court to the County Court or the Supreme Court (as the case requires), the provisions of the Children, Youth and Families Act 2005 with respect to appeals to those courts apply. New Division 4--Reports New Division 4 mirrors relevant provisions in Divisions 6 and 7 of Part 7.8 of the Children, Youth and Families Act 2005. Part 7.8 applies to proceedings in the Children's Court. The existing section 424(9) extends their application to de novo appeals in the County Court or the Supreme Court (as the case requires). However, it does so by providing a cross-reference to the relevant sections in Divisions 6 and 7 with "necessary modifications". New Division 4 takes a different approach by setting out in full, as far as possible, the relevant procedure for appellate courts ordering pre-sentence reports and group conference reports. New section 430H New section 430H makes clear that the Division applies to appeals under new Division 1 or 2. New Subdivision 1--Pre-sentence reports New section 430I New section 430I provides that the appellate court may order a pre-sentence report before passing sentence and may adjourn the proceeding to enable the report to be prepared. The appellate court must order a pre-sentence report if it is considering making a youth residential centre order or a youth justice centre order or if the person found guilty is intellectually disabled. New section 430I(4) sets out what must be included as part of the pre-sentence report if the person has an intellectual disability within the meaning of the Disability Act 2006. 49

 


 

New section 430J New section 430J requires the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) to notify the Secretary of an order to provide a pre-sentence report. New section 430K New section 430K requires a pre-sentence report to be filed with the appellate court at least 4 working days before the return date or no later than 21 days after the report was ordered. New section 430L New section 430L provides that the author of a pre-sentence report may be required to attend to give evidence at the hearing of the appeal. New section 430L(3) provides that the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must notify the author of the report if notice has been given that their attendance is required. If the author fails to attend, without sufficient excuse, they are guilty of contempt (new section 430L(4)). New section 430L(2) sets out who may give notice that the author of the report is required to attend including the child, a parent of the child, the Secretary or the appellate court. New section 430M New section 430M provides that the appellate court must not take into account any disputed matter raised by the person who is the subject of the report, unless the court is satisfied that the disputed matter is true beyond reasonable doubt. If the author of the report does not attend the hearing despite being required to do so, the appellate court must not take the report or the disputed part of the report into consideration when determining the proceeding unless the person consents to it being admitted into evidence. Subdivision 2--Group conference reports New section 430N New section 430N provides that the appellate court may defer sentencing of a person found guilty of an offence, for the purposes of a group conference. The appellate court must order a group conference report and it must be prepared by the convenor of the group conference. 50

 


 

New section 430O New section 430O requires group conference reports to be filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) at least 4 working days before the return date or no later than the date set by the court. New Division 5--Appeal to Supreme Court on a question of law New section 430P New section 430P sets out the requirements for parties to appeal on a question of law. New section 430P(1) allows a party (including the DPP on behalf of a police officer) to appeal to the Supreme Court on a question of law, from a final order of the Children's Court, unless the order was made in a committal proceeding. Under new section 430P(3), an appeal under this section is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made. New section 430P(4) requires a copy of the notice of appeal to be served, within 7 days of the notice of appeal being filed, either personally on a respondent who was the accused or, in accordance with new section 392 of the Criminal Procedure Act 2009, on a respondent who was the informant. An appeal under this new section does not operate as a stay of any order made by the Children's Court unless the Supreme Court orders otherwise. Further, an appeal commenced late is deemed to be an application for leave to appeal. The Supreme Court may grant leave to appeal and the appellant may proceed with the appeal if the late notice of appeal was due to exceptional circumstances and the respondent's case would not be materially prejudiced because of the delay. New section 430P(9) provides that, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including remitting the case for rehearing to the Children's Court with or without any direction in law. An order made on appeal can be enforced as an order of the Supreme Court. The Supreme Court has the power to stay the original sentence (and other orders) or grant bail under new section 430P(11). 51

 


 

New section 430Q New section 430Q provides that, if a person chooses to appeal under this Division to the Supreme Court on a question of law, that person cannot also appeal to the County Court or the Trial Division of the Supreme Court in relation to the same proceeding. New Division 6--Appeal to Court of Appeal and referral of point of law to Court of Appeal This new Division is based in part on existing section 426 in the Children, Youth and Families Act 2005 and sections 283-286 of the Criminal Procedure Act 2009. New section 430R New section 430R provides that a person sentenced to a term of detention by an appellate court under new section 426 or 429 may seek leave to appeal to the Court of Appeal if the person was not sentenced to detention by the Children's Court. The Court of Appeal may grant leave to appeal. Detention is defined as detention in a youth justice centre or youth residential centre. New section 430S New section 430S sets out how an appeal is commenced, namely by filing a notice of application for leave to appeal in accordance with the rules of the court within 28 days of sentencing. New section 430T New section 430T concerns the determination of an appeal by the Court of Appeal. The Court of Appeal may allow an appeal if the appellant satisfies the court that there is an error in the original sentence and that a different sentence should be imposed. Unlike the existing section 426, new section 430T sets out how an appeal is determined. This is based on section 285 of the Criminal Procedure Act 2005. New subsection (3) provides that, if the Court of Appeal is considering imposing a more severe sentence than the sentence imposed by the appellate court, it must warn the appellant as early as possible during the hearing of that possibility. This requirement is new and is consistent with the recommendation of the Victorian Parliament Law Reform Committee that (in relation to de novo appeals to the County Court) a statutory warning should be given if the court is considering increasing a sentence on appeal, presumably to give the appellant the opportunity to abandon the appeal. 52

 


 

New section 430U New section 430U sets out orders which the Court of Appeal must or may make following a successful appeal which include setting aside the appeal and substituting a new appropriate sentence (whether more or less severe) or remitting the matter to the appellate court. If the Court of Appeal remits a matter to the appellate court it can give directions concerning the further hearing of the matter by that court. New section 430U(3) provides that, where the appellant is guilty of more than one offence, the Court of Appeal may only order detention in a youth residential centre or youth justice centre for an aggregate period that is no longer than the aggregate period specified in the original sentence, regardless of whether the appellant is sentenced to separate periods of detention for each offence or given an aggregate period. It also provides that the Court of Appeal may make a probation order, youth supervision order or youth attendance order for a person of or above the age of 19 years but under 21 years. New section 430V New section 430V refers to the procedure for Court of Appeal appeals as set out in Division 7 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009. Division 7 of Part 6.3 sets out a range of matters including: · the power of the Court of Appeal and the Registrar of Criminal Appeals of the Supreme Court to extend time for filing or serving notices of appeal; · ordering the production of documents; · ordering the examination of witnesses; · issuing a warrant; · making orders in relation to ancillary orders. New section 430W New section 430W allows the DPP to refer a point of law to the Court of Appeal following an acquittal in respect of all or any of the charges. This new section is modelled on section 308 of the Criminal Procedure Act 2009. 53

 


 

New Division 7--Status of sentence and orders during appeal period Currently, there is no general rule providing for or against stays of sentencing orders on an appeal by an offender to the Court of Appeal. The provisions that determine how an appeal affects sentencing orders are in both the Crimes Act 1958 and the Supreme Court (Criminal Procedure) Rules 1998. The Bill states and, where possible, clarifies the current position. New section 430X New section 430X provides a general presumption that a sentence is not stayed during the appeal period unless this Act or any other Act otherwise provides or the trial judge or the Court of Appeal orders a stay. Clause 59 inserts a definition for appeal period into section 3 of the Children, Youth and Families Act 2005. New section 430Y New section 430Y provides that a person detained in a youth residential centre or youth justice centre who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail. New section 430Z New section 430Z provides for the automatic stay of certain orders during the appeal period; in particular orders under sections 84, 85B or 86 of the Sentencing Act 1991, unless the Supreme Court or County Court otherwise order. The Court of Appeal can set aside or vary an order staying an order referred to in this clause. New section 430ZA New section 430ZA deals with execution of orders for forfeitures or destruction of property. New subsection (1) states that property which is the subject of a forfeiture or destruction order must not be forfeited or destroyed during the appeal period unless earlier forfeiture or destruction is permitted by any other law. New subsection (2) excludes orders made under the Confiscation Act 1997 from the ambit of this clause. The reason for exclusion of orders made under the Confiscation Act 1997 is that new subsection (1) may apply to such orders. However, forfeiture and pecuniary penalty orders under the Confiscation Act 1997 have their own regime to protect the position during an appeal period. 54

 


 

New Division 8--Miscellaneous The sections in new Division 8 apply to all appeals. The sections are based on sections that are currently in the Children, Youth and Families Act 2005 with some amendments. New section 430ZB New section 430ZB provides that an appeal may be lodged by a child's parent or the Secretary on behalf of the child, if the child is under the age of 15 years. New section 430ZC New section 430ZC provides that if a child does not have the capacity or understanding to enter into bail, the child's parent or any other person may enter into bail as the child's principal. New section 430ZD New section 430ZD provides a presumption that appeals are to be heard in open court unless the court otherwise orders. The court may order the whole or any part of a proceeding to be heard in closed court or to specify who may be present at the hearing. New subsections (3) and (4) provide that an application may be made by any party to the proceeding, on the court's own motion or by any person who has a direct interest in the proceeding and the application may be supported or opposed by any party to the proceeding or an interested person. New subsection (7) provides that it is an offence to contravene an order of the court made under this section. New section 430ZE New section 430ZE provides that section 524 of the Children, Youth and Families Act 2005 applies with respect to legal representation of a child during the appeal. Sections 524 and 525 set out the proceedings in which a child must be legally represented, related matters concerning the capacity of a child to give instructions and when a court may adjourn a proceeding to enable a child to be legally represented. New section 430ZF New section 430ZF provides that the court must not hear and determine an appeal without an interpreter if a party to the appeal has a difficulty communicating in the English language that is sufficient to prevent him or her from understanding or participating in the appeal. 55

 


 

New section 430ZG New section 430ZG requires the court to explain any order the court makes in relation to bail or a final order. Subsection (2) requires an interpreter to be used if a person who is a party to the appeal has a difficulty communicating in the English language that is sufficient for him or her to have difficulties understanding the explanation of the order. New Division 9--Costs on appeal New section 430ZH New section 430ZH provides that no costs are to be allowed to any party to: · an appeal under this Part; or · a new hearing; or · a proceeding preliminary or incidental to an appeal or new hearing. This differs from the existing situation in appeals where costs may be ordered in relation to de novo appeals in limited circumstances and appeals to the Supreme Court on a point of law. This also differs from the approach taken in the Criminal Procedure Act 2009. However, the approach is consistent with the overall approach in the Children, Youth and Families Act 2005 in treating children in the criminal justice system differently to adult offenders. It also recognises the undesirability of awarding costs against a child, who may be financially impecunious. Clause 70 inserts the words "hearing of a charge or awaiting" after "trial or" in section 478(a) of the Children, Youth and Families Act 2005. This reflects that trial and hearing refer to different types of criminal proceedings in the Criminal Procedure Act 2009. Clause 71 amends section 491(2) of the Children, Youth and Families Act 2005 by replacing the cross-reference to section 49 of the Magistrates' Court Act 1989 with the similar section 333 of the Criminal Procedure Act 2009 and makes terminology changes. Clause 72 repeals section 507(5) of the Children, Youth and Families Act 2005. This subsection has been repealed as section 11 of the Magistrates' Court Act 1989 was repealed by the Courts Legislation (Judicial Conduct) Act 2005. Issues concerning judicial conduct are now dealt with under Part IIIAA of the Constitution Act 1975. 56

 


 

Clause 73 amends sections 516(1), (4), (5) and (6) of the Children, Youth and Families Act 2005 to align the language used in that Act with the modernised language applied throughout the Criminal Procedure Act 2009 and new relevant provisions under that Act. Clause 74 amends the terminology used in sections 518(b), 519(1) and 520(1) of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 75 amends the terminology used in sections 520C(4)(c) and 520E(1) of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 76 inserts the words "set aside" in section 522(4) of the Children, Youth and Families Act 2005 to be consistent with the terminology used in that Act. Clause 77 amends the terminology used in section 527(4)(l) and (m) and section 527(12) of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 78 inserts a new section 528(2) that provides that the Magistrates' Court Act 1958 and Criminal Procedure Act 2009 apply with any necessary modifications to proceedings in the Children's Court. It also provides that, subject to any rules the Children's Court makes, the rules and regulations made under the two Acts will also apply. This is relevant as clause 84 provides the Children's Court with the power to make rules for the purposes of the Criminal Division. The new section 528(2) excludes the application of the notice to appear and appeal provisions in the Criminal Procedure Act 2009. As a result, the notice to appear process does not apply to children. The appeal provisions in the Criminal Procedure Act 2009 do not apply as the Bill (clause 69) substitutes a new Part 5.4 into the Children, Youth and Families Act 2005 with a comprehensive framework of appeals from the Criminal Division of the Children's Court. The only exception to this is where the new Part 5.4 expressly refers to the appeals procedure in the Criminal Procedure Act 2009. Some rules will apply to the Children's Court because they have been made by the Magistrates' Court and are relevant to the Children's Court. However, rules made by the Magistrates' Court will be subject to any rules made under the Children, Youth and Families Act 2005. 57

 


 

Clause 79 amends section 538(4) of the Children, Youth and Families Act 2005 by replacing the reference to section 35 of the Magistrates' Court Act 1989 with an updated reference to new section 399 of the Criminal Procedure Act 2009. Clause 80 amends the terminology used in section 573(l)(c), 573(2)(b) and 573(3) of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 81 amends the terminology used in sections 583 and 584 of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 82 amends section 585 of the Children, Youth and Families Act 2005 by replacing each reference to "defendant" in this section with "accused". Clause 83 amends the terminology used in section 586 of the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. Clause 84 inserts a new section 588(1A) in the Children, Youth and Families Act 2005 which provides that the President of the Children's Court (together with 2 or more magistrates) may make rules with respect to the prescription of forms for the purposes of the Criminal Division of the Court and, more generally, any matter relating to the practice and procedure of the Criminal Division of the Court. This amendment is linked to clause 78 which amends section 528(2) of the Children, Youth and Families Act 2009. Clause 85 amends section 599 of the Children, Youth and Families Act 2005 to include new subsection (2). Subsection (2) states that it is the intention of section 430Q to alter or vary section 85 of the Constitution Act 1975. Clause 86 inserts a new section 609 and section 610 into the Children, Youth and Families Act 2009 which set out detailed transitional arrangements. New Part 5.1A reduces the time limits for commencing a proceeding for a summary offence in the Children's Court. If an offence is alleged to have been committed between two dates, the offence is treated as if it were alleged to have been committed after the commencement day. This ensures that this change applies to the benefit of the child. 58

 


 

New section 516A concerns joint committal proceedings. This transitional provision is the same as that provided in clause 7 of Schedule 4 to the Criminal Procedure Act 2009 as provided by this Bill. New section 610(1) sets out the transitional provision for appeals under section 328 of the Children, Youth and Families Act 2009. Clause 60 of the Bill amends section 328 so that the procedure for appeals is adopted from the new Part 5.4 rather the Magistrates' Court Act 1958. New section 610(1) provides that the amendments in clause 60 apply to an appeal in relation to an order referred to in section 328(1) or a dismissal of an application that is made on or after the commencement of clause 60. New section 610(2) to (5) set out the transitional provisions for appeals from the Criminal Division of the Children's Court as set out in new Part 5.4. The new provisions will apply in relation to a sentence (as defined in new section 3) that is imposed or a final order that is made (as the case may be) on or after the commencement of clause 69. A similar transitional provision applies to the same types of appeals from the Magistrates' Court as set out in clause 10 of new Schedule 4 to the Criminal Procedure Act 2009. Clause 87 amends the terminology used in Schedules 1, 2 and 3 to the Children, Youth and Families Act 2005 to be consistent with the Criminal Procedure Act 2009. PART 4--AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994 Clause 88 inserts definitions of direct indictment, discontinue a prosecution and related offences into section 3 of the Public Prosecutions Act 1994. Each term is defined by reference to the meaning it has within the Criminal Procedure Act 2009. Clause 88(2) amends the definition of special decision in section 3 by replacing paragraph (a) and partially amending paragraphs (b), (d), (e) and (f). Under paragraph (a), a special decision under the Public Prosecutions Act 1994 is now defined as a decision to file a direct indictment against a person for an offence, except where the person (or a legal practitioner representing that person), has consented in writing to an indictment being filed for that offence or has indicated in writing an intention to plead guilty to that offence. This simplification arises from the clearer definitions created in the Criminal Procedure Act 2009. 59

 


 

Clause 88(2) also updates the cross-references occurring in paragraphs (b), (d), (e) and (f) of the definition of special decision in section 3 to incorporate amendments made by the Criminal Procedure Act 2009. It amends the terminology used in these paragraphs to achieve consistency with the modernised language used throughout the Criminal Procedure Act 2009, for example: · "discontinue a prosecution" replaces "nolle prosequi"; · "file an indictment" replaces "make a presentment"; · "charges on the indictment" replaces "counts in a presentment". Clause 89 amends the terminology used in section 20(2) of the Public Prosecutions Act 1994 by replacing the reference to "making presentment of" with "filing an indictment against" to align the terminology used in the Public Prosecutions Act 1994 with the Criminal Procedure Act 2009. Clause 90 amends section 22(1) of the Public Prosecutions Act 1994 by inserting a new paragraph (ab) after paragraph (a). Sections 145, 242 and 243 of the Criminal Procedure Act 2009 provide new processes for dealing with summary offences in the Supreme Court or County Court. Related summary offences will be regularly transferred to the Supreme Court or County Court when an accused is committed for trial. The DPP conducts prosecutions in the Supreme Court and County Court. Section 22(1)(b)(ii) provides that the Director may take over and conduct proceedings in relation to a summary offence if the DPP considers it desirable to do so. The effect of new paragraph (ab) is that the DPP does not need to consider whether it is desirable to take over and conduct a summary proceeding where the summary proceeding is being dealt with in the Supreme Court or County Court. As the DPP will always conduct summary proceedings in this situation, it is not necessary for the DPP to consider whether to take over and conduct each offence. This clause also removes the reference to "proceedings in respect of an indictable offence that are consequent on a finding of a grand jury under section 354 of the Crimes Act 1958" from section 22(1)(b)(ii) as section 253 of the Criminal Procedure Act 2009 abolishes the grand jury procedure. 60

 


 

Clause 91 repeals section 25(1) of the Public Prosecutions Act 1994. This provision is unnecessary because Part 5.4 of Chapter 5 of the Criminal Procedure Act 2009 expressly provides the Director of Public Prosecutions with the power to discontinue a criminal proceeding. The repeal of section 25(1) removes the DPP's power to enter a nolle prosequi. Clause 92 amends the terminology used in sections 30(1) and (2) of the Public Prosecutions Act 1994 by replacing references to "presentment" with "indictment" and "nolle prosequi" with "discontinue a prosecution" to align with the terminology used in the Criminal Procedure Act 2009. Clause 93 amends section 36(1), (2) and (5) of the Public Prosecutions Act 1994 by updating cross-references and replacing the various references to "make presentment of" with "file an indictment against" to align the terminology with the Criminal Procedure Act 2009. Clause 94 changes the punctuation at the end of section 38(1)(b) of the Public Prosecutions Act 1994. Clause 95 amends section 47 of the Public Prosecutions Act 1994 by replacing references to "presentment" with "indictment" and "quashed" with "set aside" to align the language with the Criminal Procedure Act 2009. Clause 96 substitutes a new section 49 in the Public Prosecutions Act 1994, which replaces section 49(b) and (c) and updates the language used in this section so that it is consistent with the Criminal Procedure Act 2009. Specifically, reference to "presentment" is replaced with "indictment" and the term "set aside" is included. With the exception of these changes to the language used in this provision, the proposed new section 49 re-enacts the existing section 49 of the Public Prosecutions Act 1994. It is the intention of new section 49 to alter or vary section 85 of the Constitution Act 1975 by preventing the Supreme Court from entertaining any proceeding, or preventing an application, which involves any challenge, review or remedy of a jury verdict on a trial on indictment on the ground that the filing of the indictment depended on a special decision being made and the procedures prescribed for the making of special decisions were not followed. 61

 


 

The reason for preventing these proceedings and applications under the circumstances stated is to provide certainty and efficiency in the administration of justice. Again, any irregularity in compliance with the special decision process does not concern the substantive issue of whether the accused is guilty or not guilty of the offence charged. PART 5--CONSEQUENTIAL AND OTHER AMENDMENTS TO OTHER ACT Clause 97 provides that in relation to the Schedule to the Bill, when an item in that Schedule comes into operation, the Act referred to in the heading to that item, is amended in the way set out in that item of the Schedule. PART 6--REPEAL Clause 98 repeals the Bill on 1 January 2012. The repeal of the Bill does not affect the ongoing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). SCHEDULE CONSEQUENTIAL AND OTHER AMENDMENTS The Schedule makes consequential amendments to various Acts that deal with matters connected to criminal procedure. Many Acts refer to aspects of current criminal procedure laws. The Schedule amends these Acts to ensure that they are consistent with, and where necessary cross-refer to the new provisions in, the Criminal Procedure Act 2009. For example, the following Acts contain explanatory notes which indicate that an offence may be heard and determined summarily: the Bus Safety Act 2009, Dangerous Goods Act 1985, Electricity Industry Act 2000, Equipment (Public Safety) Act 1994, Gas Industry Act 2001, Occupational Health and Safety Act 2004, Rail Safety Act 2006, Road Management Act 2004 and Transport Act 1983. The notes in these Acts refer to section 53 and Schedule 4 to the Magistrates' Court Act 1989. The Criminal Procedure Act 2009 repeals these provisions and deals with indictable offences that may be heard and determined summarily in section 28 (which refers to Schedule 2 to that Act). The Schedule amends the notes in the Acts listed above to refer to the new provision in the Criminal Procedure Act 2009. 62

 


 

The Schedule also makes a number of changes to terminology in various Acts. The Criminal Procedure Act 2009 modernises criminal procedure laws by using plain English and clear and consistent terminology. As a result, the Schedule replaces the following terms across a number of Acts to achieve consistency with the terminology used in the Criminal Procedure Act 2009: · "accused" replaces "defendant"; · "sentence" replaces "sentencing order"; · "indictment" replaces "presentment"; · "charge" replaces "count"; · "set aside" replaces "quash" or "quashed"; · "filing a charge-sheet" replaces "filing a charge"; · "charge" replaces "information"; · "discontinuing a prosecution" replaces "nolle prosequi"; · "committal proceeding" replaces "preliminary inquiry or hearing"; · "committal proceeding" replaces "preliminary examination". Many Acts also use the term "appear" to describe an obligation on an accused to attend personally or be represented at a criminal proceeding. In light of the new definitions given to the terms "appear" and "attend" in section 3 of the Criminal Procedure Act 2009, the Schedule replaces certain references to "appear", "appears" or "appearance" in other Acts with "attend", "attends" or "attendance" in order to clarify that an accused is required to appear personally and physically at a proceeding. In the Criminal Procedure Act 2009, the distinction between "attend" and "appear" significantly clarifies how the legislation should operate. The distinction is therefore important in Acts frequently used in criminal proceedings. This amendment has not been made to every Act. For instance, the amendment is not made in relation to appearing by an audiovisual link under the Evidence Act 1958 because the context in which the word "appear" is used is already clear. Similarly, in the Children, Youth and Families Act 2005 the change has not been made. That Act also deals with non-criminal proceedings. Changing the use of "appear" and "attend" in criminal proceedings would then be inconsistent with the use of these words in the Family Division. Accordingly, this change has only been made in other, commonly used, Acts in criminal proceedings. 63

 


 

Section 382 of the Criminal Procedure Act 2009 (which will be section 435 by virtue of the renumbering in clause 54 of this Bill) reclassifies the following indictable offences as summary offences: · sections 3(1), 3(3) and (7) of the Collusive Practices Act 1965; · sections 55B(5) and 144 of the Evidence Act 1958; · section 75 and 78 of the Goods Act 1958; · section 118 of the Magistrates' Court Act 1989; · section 400C of the Mines Act 1958; · section 25 of the Trade Unions Act 1958; · sections 10(1) and (2) of the Wrongs Act 1958. The Schedule provides transitional arrangements for each offence. In each case, the reclassification applies to an offence alleged to have been committed on or after the commencement of section 382 of the Criminal Procedure Act 2009. Where an offence is alleged to have been committed between two dates, one before and one after the commencement of the Criminal Procedure Act 2009, the offence is alleged to have been committed before the commencement of section 382 of that Act. In addition to the amendments described above, the Schedule also makes some more substantive amendments to various Acts in order to achieve consistency with the Criminal Procedure Act 2009. These substantive amendments are highlighted and discussed below: Item 18 makes various amendments to the Charter of Human Rights and Responsibilities Act 2006. Item 18.1 inserts a new definition of trial into section 3 of the Charter. Trial is referred to in sections 21, 23 and 27 of the Charter. The new definition clarifies the meaning of trial because the Criminal Procedure Act 2009 uses trial and hearing to refer to different types of proceedings. Here, a trial is defined to include the hearing of charges in the Magistrates' Court and Children's Court. Item 18.3 amends section 33(3) of the Charter of Human Rights and Responsibilities. Currently, section 33 of the Charter enables questions of law relating to the application of the Charter or the interpretation of a statutory provision in accordance with the Charter, to be referred from the County Court to the Trial Division of the Supreme Court and from the Trial Division of the Supreme Court to the Court of Appeal. 64

 


 

Item 18.3 amends section 33(3) of the Charter to enable Charter- related questions to be referred from the County Court directly to the Court of Appeal. This is intended to provide a quicker and more direct way of dealing with Charter issues to avoid or minimise the impact of such cases on other trials. The amendment will apply to both civil and criminal proceedings in the County Court. Item 18.4 inserts a transitional amendment after section 49(3) of the Charter of Human Rights and Responsibilities which indicates that the amendment to section 33 (see above) will apply to Charter questions that arise on or after the commencement of item 18.3. Item 35.16 amends section 80AA(e) of the County Court Act 1958. With the development of a consistent definition of sexual offence, item 35.16 amends section 80AA(e) to replace the reference to a range of sexual offences with a reference to a sexual offence as defined in the Criminal Procedure Act 2009. (Item 116.6 amends the equivalent provision in section 19(e) of the Supreme Court Act 1986 in the same way). Item 36 inserts a new section 3A in the Court Security Act 1980. New section 3A provides that the Chief Commissioner of Police must direct that a sufficient number of police are present to keep order on court premises at all sittings of the Supreme Court and County Court in their criminal jurisdiction. The Chief Commissioner of Police must also direct that an additional number of police be present at the request of the presiding judge. This provision is based on section 390(2) of the Crimes Act 1958, which will be repealed as a result of section 369(2) of the Criminal Procedure Act 2009. Item 39 makes a number of amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as a consequence of amendments made by the Criminal Procedure Act 2009. The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 provides for appeal rights against various orders that a court can make. The appeal rights are contained in sections 19A, 24A, 28A, 34, 34A, 57B, 58A, 73H and 73N of the Act. Item 39 amends these appeal provisions to provide that a notice of appeal must be filed 28 days after the relevant order is made and the respondent must be served or provided with a copy of the notice of appeal within 7 days after the day on which the notice is filed. 65

 


 

The time periods are consistent with the standardised time periods that apply to the commencement of appeals under Part 6.3 of the Criminal Procedure Act 2009. Item 39 also amends the appeal provisions to provide that where an appeal is brought by the DPP, the Attorney-General or the Secretary of the Department of Human Services, notice of appeal must be served personally on the respondent because it is a significant new step in the proceeding and the accused may have thought that the matter was finished. Further, the DPP, the Attorney-General or the Secretary of the Department of Human Services (as applicable) is also required to provide a copy of the notice of appeal to the legal practitioner who last represented the respondent if they can reasonably be identified. Where an appeal is brought by the accused, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent(s) a copy of the notice of application for leave to appeal (rather than the accused serving the notice on the respondent). Item 39.51 inserts a new section 76C in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which provides a specific legislative basis for extending the time for filing a notice of appeal with the Court of Appeal or serving such a notice. Item 39.51 also inserts a new section 76D in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which provides that the power of the Court of Appeal to extend the time for filing a notice of appeal may be exercised by a single Judge of Appeal in the same manner as it may be exercised by the Court of Appeal. Item 39.52 inserts two new clauses (11 and 12) into Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. These clauses provide for transitional arrangements. The transitional provisions apply where the relevant matter being appealed (which includes certain orders, applications and findings that the accused is unfit to stand trial or is not guilty because of mental impairment) is made or occurs on or after the commencement of the relevant provision. Item 40.25 repeals section 422 of the Crimes Act 1958. Section 422 sets out the procedure that applies where facts disclose a more serious offence. Although in its current form this provision is relatively recent (the current wording was introduced in 1981), the provision has a long history that is closely tied to technical rules 66

 


 

that related to the distinction between felonies and misdemeanours. Historically, the common law doctrine of merger had the effect that if the same facts constituted both a felony and a misdemeanour, the misdemeanour merged into the felony. This meant that if a person was put on trial for a misdemeanour, but the evidence at the trial disclosed that the person had actually committed a felony, the trial had to be aborted. The section is no longer necessary because the particular obstacle posed by the common law doctrine of merger has long been overcome in Victoria by the abolition of the distinction between felonies and misdemeanours. Item 40.26 repeals section 422A(2) of the Crimes Act 1958. Section 422A(2) provides that section 422A (which provides for an alternative verdict for certain charges relating to driving) does not restrict the operation of section 421 or 422. The reference to section 422 in section 422A(2) is no longer necessary following the repeal of that section. The reference to section 421 is also no longer necessary. The Criminal Procedure Act 2009 repeals section 421(2)-(4) of the Crimes Act 1958. Only section 421(1) will remain in the Crimes Act 1958. Section 421(1) provides alternative verdicts on a charge of murder. The provisions in section 422A are not relevant or connected to section 421(1). Item 40.27 repeals section 423 of the Crimes Act 1958. Section 423 sets out the alternative verdict of unlawfully wounding. This offence has been repealed from the Crimes Act 1958. Item 40.28 repeals section 424 of the Crimes Act 1958. Section 424 refers to the alternative verdict of administering poison. The offence of administering poison was abolished in 1986. A new offence administering a substance to another was created at the same time in section 19 of the Crimes Act 1958. However, that offence is significantly different from the offence of administering a poison. Item 40.29 repeals section 425(4) of the Crimes Act 1958. Section 425 provides alternative verdicts for certain sexual offence charges. Section 425(4) provides that this section does not restrict the operation of section 421 or 422. The reference to section 422 in section 425(4) is no longer necessary following repeal of that section. The reference to section 421 is also unnecessary as it is not relevant to the operation of section 425. 67

 


 

Item 40.31 amends section 458(3) of the Crimes Act 1958 to include a reference to the notice to appear process. Section 458(3) of the Crimes Act 1958 currently provides that a person apprehended without warrant and taken into custody shall be held in custody only so long as the reason for their apprehension continues. It further provides that the person shall be released from custody whether or not a summons has been issued. Item 40.31 amends this provision so that as well as referring to the issue of a summons it also refers to the new notice to appear process given that a notice to appear can be issued instead of a warrant. The new notice to appear process is set out in Division 2 of Part 2.3 of the Criminal Procedure Act 2009. It is intended to be a simple alternative mechanism to bring a person before court within a short time frame after an alleged offence is detected. It is available for all summary offences and all indictable offences which may be heard and determined summarily. Item 40.34 amends section 461(2) of the Crimes Act 1958 to include a reference to the notice to appear process. Section 461 of the Crimes Act 1958 currently provides that a member of the police force shall not be bound to take into custody any person found committing an offence if the member believes on reasonable grounds that proceedings can effectively be brought against the person by way of summons. Item 40.34 amends this provision so that as well as referring to the issue of a summons it also refers to the new notice to appear process. The new notice to appear process is described above (see item 40.31). Item 40.42 repeals Schedule 5 to the Crimes Act 1958 as it is now obsolete. Item 54 repeals sections 37A, 37B, 37C, 37CAA, 37CA, 37D and 37E and Divisions 3AA and 3A of Part II of the Evidence Act 1958. These provisions have been overhauled and re-enacted in new Part 8.2 of the Criminal Procedure Act 2009. Item 54 also repeals section 152(1)(a) and (b) together with section 152(2)(aa) of the Evidence Act 1958. Sections 152(1)(a) and 152(1)(b) of the Evidence Act 1958 give the Governor in Council the power to prescribe regulations for allowances and expenses to be paid to prosecution witnesses and interpreters in criminal trials and criminal proceedings in the Supreme Court, County Court and Magistrates' Court. This is now covered by section 367(1)(c) of the Criminal Procedure Act 2009 (to be renumbered section 420 by this Bill). Item 54 also repeals section 152(2)(aa) of the Evidence Act 1958 as that paragraph is being brought into the Criminal Procedure Act 2009 by clause 43 of this Bill. 68

 


 

Item 54.51 inserts a new transitional provision at the end of Part VIII of the Evidence Act 1958. This transitional provision relates to amendments made to the Evidence Act 1958 by new section 435(7) of the Criminal Procedure Act 2009. Item 82 makes a number of amendments to the Magistrates' Court Act 1989. Item 82.1 inserts into section 3 of the Magistrates' Court Act 1989 the following definitions used in the Criminal Procedure Act 2009 and defined with reference to that Act: accused, sentence and sexual offence. Item 82.2 amends a number of definitions in section 3 of Magistrates' Court Act 1989: · defendant--paragraph (a) of the definition is repealed as this term is no longer used with reference to criminal proceedings. · election date--section 3 defines that term with reference to Schedule 3 to the Magistrates' Court Act 1989. As Schedule 3 was repealed in 1994 and election date is no longer used elsewhere in the Act, the definition is repealed. · proper venue--paragraph (c) of the definition concerns proceedings in respect of which the Family Violence Court Division has jurisdiction. This Division has jurisdiction to deal with certain criminal proceedings and civil proceedings. Prior to the introduction of the Family Violence Protection Act 2008 the term defendant was used in the Crimes (Family Violence) Act 1987 to describe the subject of an order made in a proceeding under that Act. The Family Violence Protection Act 2008 now uses the term respondent. Accordingly, consistent with the approach taken in Family Violence Protection Act 2008, in paragraph (c) of the definition, the word "defendant" is replaced by reference to the accused, defendant or the respondent within the meaning of the Family Violence Protection Act 2008. Similarly, items 82.9, 82.10 and 82.13 in the Schedule, amend sections 4(I)(4)(b), 4(K)(1)(b) and 4L(2)(a) of the Magistrates' Court Act 1989 by replacing references to "defendant" with accused, defendant or the respondent within the meaning of the Family Violence Protection Act 2008. 69

 


 

· return date--section 3 of the Criminal Procedure Act 2009 provides that, in relation to a criminal proceeding in the Magistrates' Court return date means the first date on which the proceeding is listed before the court. Conversely, section 3 of the Magistrates' Court Act 1989 defines return date in relation to a criminal proceeding to mean any date on which the proceeding is listed before the Court. In order to achieve consistency with the terminology used in the Criminal Procedure Act 2009, the Magistrates' Court Act 1989 definition is repealed. Further, sections within the Magistrates' Court Act 1989 which previously made reference to "return date" and relied on the presence of the definition of that term within the Act have been amended. References to "return date" in sections 21(1)(c), 43(5) and 43(6) of the Magistrates' Court Act 1989 have been substituted with "date on which the criminal proceeding is listed before the court". Item 82.23 inserts a new section 16(1AB) into the Magistrates' Court Act 1989 so as to clarify that the rules of court prescribed by the Chief Magistrate pursuant to this section are subject to, and must not be inconsistent with, the Criminal Procedure Act 2009. Item 82.27 amends section 43(5) and (5A) of the Magistrates' Court Act 1989. New section 43(5) and (5A) provide for the service of a witness summons and these provisions mirror those contained in section 391 of the Criminal Procedure Act 2009. Item 82.28 inserts new section 57(7A) and (7B) into the Magistrates' Court Act 1989. Section 57(7A) of the Magistrates' Court Act 1989 provides that a registrar of the County Court may issue a warrant to imprison in the circumstances set out in section 266(3A) of the Criminal Procedure Act 2009. Section 266(3A), inserted into the Criminal Procedure Act 2009 by this Bill (see clause 23), provides that if a person surrenders to a registrar of the County Court in the manner described in section 266(3) of the Criminal Procedure Act 2009, the registrar may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the person. Items 82.29 to 82.31 repeal section 61(1)(a), 61(4) and 61(5)(a) and (c) of the Magistrates' Court Act 1989. Section 61 of the Magistrates' Court Act 1989 sets out circumstances where a warrant to arrest a defendant or a witness may be issued. 70

 


 

These subsections are no longer necessary as the issue of a warrant to arrest a defendant is dealt with in sections 12, 13, 330 and 411 of the Criminal Procedure Act 2009. As a result, section 61 will only deal with the issue of a warrant to arrest a witness. Section 194 of the Evidence Act 2008 also provides courts with a power to issue a warrant to bring a witness to court. Item 82.41 amends section 126(5) of the Magistrates' Court Act 1989. Section 126(2) of the Magistrates' Court Act 1989 provides that the court may in certain circumstances make an order prohibiting the publication of specified material. Section 126(5) provides that the Court must specify a period not exceeding 7 days for such an order. This time limit is unnecessary and is repealed by item 82.41. Item 82.45 repeals section 127(1)(ba) of the Magistrates' Court Act 1989 as the content is now incorporated in new section 336A of the Criminal Procedure Act 2009, as well as section 42 of the Evidence Act 1958. Item 82.47 repeals section 128A of the Magistrates' Court Act 1989. This section (which provides for an adjournment to undertake a diversion program) is re-enacted in section 59 of the Criminal Procedure Act 2009. Item 82.50 repeals section 130 of the Magistrates' Court Act 1989. Section 130(1), (3) and (4) (which provide that the evidential burden rests on the accused for exceptions etc. in summary hearings) have been re-enacted in section 72 of the Criminal Procedure Act 2009. Section 130(2) appears in clause 4 of Schedule 1 to the Criminal Procedure Act 2009, which sets out all requirements for charges on charge-sheets and indictments. Item 82.53 substitutes section 139 of the Magistrates' Court Act 1989 and sets out how a document should be served if this Act does not set out how the document should be served. This is not relevant to criminal proceedings as the manner for service of documents in criminal proceedings is now covered by the Criminal Procedure Act 2009. Item 82.55 repeals paragraphs (e), (f) and (g) of section 140(1) of the Magistrates' Court Act 1989. These paragraphs currently provide a regulation-making power for purposes now covered by the Criminal Procedure Act 2009. Moreover, the Criminal Procedure Act 2009 has it own regulation-making power in new section 420. 71

 


 

Item 82.59 inserts transitional provisions into Schedule 8 to the Magistrates' Court Act 1989. These transitional provisions relate to amendments made to the Magistrates' Court Act 1989 by new sections 426 and 435(1) of the Criminal Procedure Act 2009. New section 426 of the Criminal Procedure Act 2009 inserts new section 25(3) and (4) into the Magistrates' Court Act 1989 to allow the court to make an order for a joint committal proceeding where a child and adult are charged with certain offences and these offences could be joined in the same indictment. The Magistrates' Court and the Children's Court must both consider this an appropriate way to deal with the charges within their jurisdiction. A mirror provision for the Children's Court process can be found at section 430 of the Criminal Procedure Act 2009 (which creates a new section 516A of the Children, Youth and Families Act 2005). Item 82.59 provides that this new joint committal proceeding will apply to committal proceedings if the relevant criminal proceeding (of which the committal proceeding is a part) began on or after the commencement of section 426 of the Criminal Procedure Act 2009. Item 84.12 repeals section 110(1)(b) of the Marine Act 1988 because its contents are covered by section 29 of the Criminal Procedure Act 2009. Section 29 allows certain indictable offences to be heard and determined summarily if the accused (or their legal practitioner) consents and the court considers that the charge is appropriate to be determined summarily having regard to certain matters. Item 110.83 inserts a new transitional provision after section 137 of the Sentencing Act 1991. This transitional provision relates to amendments made to the Sentencing Act 1991 by new sections 433 and 434 of the Criminal Procedure Act 2009. New section 433 of the Criminal Procedure Act 2009 amends the Sentencing Act 1991 by inserting a new section 112A. The new section sets a maximum fine of 500 penalty units for a natural person found guilty of an indictable offence heard and determined summarily by the Magistrates' Court. The maximum penalty applies irrespective of whether the offence is also punishable by imprisonment. The same approach is taken in relation to penalties for a body corporate in section 434, which sets a maximum fine of 2500 penalty units for a body corporate by inserting a new section 113D(1A) into the Sentencing Act 1991. 72

 


 

Item 110.83 provides that that the new jurisdictional maximum fine inserted in section 112A applies to a sentence imposed on or after the commencement of new section 433, irrespective of when the criminal proceeding commenced. If the maximum fine set out in section 112A is greater than the maximum that applies to the summary hearing of that offence immediately before the commencement of section 433 and the Magistrates' Court determined to grant a summary hearing for that offence before the commencement of section 433, then the previous maximum fine applies. The same approach is applied to offences where the accused is a body corporate. This approach to the changes to the jurisdictional maximum penalties is based on the approach already followed for imprisonment penalties in section 113 of the Sentencing Act 1991. Item 111.8 amends section 38(1) of the Serious Sex Offenders Monitoring Act 2005. There is currently no legislative basis for extending the time for filing notice of appeal under this Act. New sections 38(1) and 38A (inserted by item 111.9) will enable the Court of Appeal to extend time for the filing of a notice of appeal. These powers are based on section 313 of the Criminal Procedure Act 2009. Item 115 amends the Summary Offences Act 1966. Item 115.14 repeals section 53(4) of the Summary Offences Act 1966. Section 53 of the Summary Offences Act 1966 creates the offence of making false reports to police etc. Section 53(4) provides that where a person charged with an offence under this section is not present before the court, the court may adjourn the hearing of the charge with a view to securing the attendance of the person. It further provides that the court has jurisdiction to deal summarily with the case in the absence of the accused. Section 53(4) is unnecessary. Section 331 of the Criminal Procedure Act 2009 provides a general power of adjournment. Section 383 of that Act repeals section 53(3), (5) and (6) of the Summary Offences Act 1966 to remove the option of a jury trial for this offence. Accordingly, it is unnecessary to expressly provide that the offence can be determined summarily in the absence of the accused. Item 115.19 inserts a new transitional provision into the Summary Offences Act 1966. This transitional provision relates to amendments made to the Summary Offences Act 1966 by new section 436 of the Criminal Procedure Act 2009. 73

 


 

New section 436 repeals the option of a jury trial in sections 53(3), 53(5) and 53(6) of the Summary Offences Act 1966 (making a false report to police). The offence of making false reports to police in section 53(1) of the Summary Offences Act 1966 has a maximum penalty of imprisonment for 1 year. It is therefore appropriately classified as a summary offence. Item 115.19 provides that this reclassification applies to an offence alleged to have been committed on or after the commencement of new section 436 of the Criminal Procedure Act 2009. Item 115.19 also provides that in circumstances where an offence is alleged to have been committed between two dates, one before and one after the commencement of the Criminal Procedure Act 2009, the offence is alleged to have been committed before the commencement of new section 436 of the Criminal Procedure Act 2009. Item 116 amends the Supreme Court Act 1986 as a consequence of the new appeal provisions in the Criminal Procedure Act 2009. Section 17A(3) of the Supreme Court Act 1986 currently provides that, except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment. The Criminal Procedure Act 2009 repeals the appeal provisions in Part VI of the Crimes Act 1958 and replaces them with new provisions in the Criminal Procedure Act 2009. Item 116.1 amends section 17A(3) to replace reference to Part VI of the Crimes Act 1958 with reference to Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009. Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009 deals with appeals and case stated procedures from the County Court and the Trial Division of the Supreme Court to the Court of Appeal. Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009 makes specific provision for interlocutory appeals. This is a new appeal right. Section 17A(4)(b) of the Supreme Court Act 1986 provides that (except in certain specified cases) the leave of the Court is required before appealing a judgment or order in an interlocutory application. The requirements for interlocutory appeals in the Criminal Procedure Act 2009 are different. For example, interlocutory appeals in criminal proceedings require certification by the trial judge, in addition to leave from the Court of Appeal. 74

 


 

To clearly distinguish between the restrictions that apply in section 17A(4)(b) to appeals from orders made in interlocutory applications from the restrictions that apply to interlocutory appeals in the Criminal Procedure Act 2009, item 116.4 inserts a new subsection (4A) in section 17A of the Supreme Court Act 1986. New section 17A(4A) provides that subsection (4)(b) does not apply to an interlocutory appeal under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009. Item 116.6 substitutes section 19(e) of the Supreme Court Act 1986. With the development of a consistent definition of a sexual offence, section 19(e) is amended to replace the reference to a range of sexual offences with a reference to a sexual offence as defined in the Criminal Procedure Act 2009. 75

 


 

 


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