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EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - SECT 42BA

Definitions

    (1)     In this Part—

"assumed name"—

        (a)     of a local operative, has the meaning given in section 42BD(1)(a)(i);

        (b)     of an interstate operative, means the name (if any) stated in the operative's interstate witness identity protection certificate as his or her assumed name;

"Australian Crime Commission" means Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

"chief officer" means—

        (a)     in relation to Victoria Police—the Chief Commissioner of Police;

        (b)     in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission;

"conduct" includes any act or omission;

"corresponding law "means a law of another jurisdiction that is declared by the regulations to correspond to this Part;

"court" includes any tribunal or person authorised by law or consent of parties to receive evidence;

court name for a local operative in relation to an interstate proceeding or for an interstate operative in relation to a proceeding in this jurisdiction, means a name (other than the operative's real name) or code used to identify the operative in the proceeding;

"criminal activity" means conduct that involves the commission of an offence by one or more persons;

"false representation" does not include a representation made under an authority under—

        (a)     the Crimes (Assumed Identities) Act 2004 ; or

        (b)     the Crimes (Controlled Operations) Act 2004 ;

"interstate court" means a court of another jurisdiction;

"interstate operative" means a person in respect of whom an interstate witness identity protection certificate is in force;

"interstate proceeding" means a proceeding in another jurisdiction;

"interstate witness identity protection certificate" means a certificate given under a provision of a corresponding law that corresponds to section 42BB;

"investigation" means an investigation in relation to criminal activity, including an investigation extending beyond this jurisdiction;

"jurisdiction" means the Commonwealth or a State or Territory of the Commonwealth;

"law enforcement agency" means the following agencies—

        (a)     Victoria Police;

        (b)     the Australian Crime Commission;

S. 42BA(1) def. of law enforcement officer amended by No. 37/2014 s. 10(Sch. item 59.4(a)).

"law enforcement officer" means—

        (a)     in relation to Victoria Police—a police officer;

        (b)     in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission

and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction;

"local operative" means a person who is or was—

        (a)     authorised to acquire and use an assumed identity under the Crimes (Assumed Identities) Act 2004 ; or

        (b)     a participant in an authorised operation under the Crimes (Controlled Operations) Act 2004 ;

S. 42BA(1) def. of member repealed by No. 37/2014 s. 10(Sch. item 59.4(b)).

    *     *     *     *     *

"party" to a proceeding, means—

        (a)     for a criminal proceeding—the prosecutor and each accused person; or

        (b)     for a civil proceeding—each person who is a party to the proceeding; or

        (c)     for any other proceeding—each person who may appear or give evidence in the proceeding;

"presiding officer" in relation to a proceeding, means the person constituting the court, or presiding over the court, in the proceeding;

"proceeding" means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration;

S. 42BA(1) def. of professional misconduct amended by No. 37/2014 s. 10(Sch. item 59.4(c)).

"professional misconduct" means misconduct or a breach of discipline under—

        (a)     the Victoria Police Act 2013 ; or

        (b)     a law of another jurisdiction that corresponds to the Victoria Police Act 2013 ; or

        (c)     a law of the Commonwealth that governs the conduct of members of staff of the Australian Crime Commission; or

        (d)     a law of a foreign country that corresponds to the Victoria Police Act 2013 ;

"this jurisdiction" means Victoria;

S. 42BA(1) def. of Victoria Police substituted by No. 37/2014 s. 10(Sch. item 59.4(d)).

"Victoria Police" has the same meaning as in the Victoria Police Act 2013 ;

"witness identity protection certificate" means a certificate given under section 42BB.

    (2)     For the purposes of this Part—

        (a)     a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways—

              (i)     the charge is withdrawn;

              (ii)     the charge is dismissed by a court;

              (iii)     the person is discharged by a court following a committal hearing;

              (iv)     the person is acquitted or found guilty of the offence by a court;

S. 42BA(2)
(a)(v) substituted by No. 68/2009 s. 97(Sch. item 54.17).

              (v)     the prosecution of the offence is discontinued;

        (b)     a charge against a person for an offence is pending if the person has not yet been charged with the offence, but—

              (i)     the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or

              (ii)     a summons to appear before a court to answer a charge for the offence has been served on the person;

        (c)     an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with in accordance with the law of the jurisdiction or foreign country that governs the procedure for dealing with the allegation.

    (3)     For the purposes of this Part—

        (a)     anything permitted to be done by a party to a proceeding may be done by the party's legal practitioner;

        (b)     any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party's legal practitioner.

Division 2—Witness identity protection certificates for local operatives

S. 42BB inserted by No. 60/2004 s. 3.



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