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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Legislation Amendment
(Prosecution of Indictable Offences) Bill 2022
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2022
New South Wales
Criminal Procedure Legislation Amendment
(Prosecution of Indictable Offences) Bill 2022
Act No , 2022
An Act to make amendments to certain legislation about the procedure for the prosecution of
indictable offences.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Criminal Procedure Legislation Amendment (Prosecution of
Indictable Offences) Act 2022.
2 Commencement
This Act commences on the date of assent to this Act.
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Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
Schedule 1 Amendments
Schedule 1 Amendments
1.1 Criminal Procedure Act 1986 No 209
[1] Section 3 Definitions
Insert in alphabetical order in section 3(1)--
law enforcement or investigating officer, for an alleged offence, means a
police officer, or another officer or a member of staff of an agency created by
or under an Act, who is responsible for an investigation into a matter involving
the suspected commission of the alleged offence.
[2] Section 36B
Insert after section 36A--
36B Disclosures by law enforcement or investigating officers
(1) Law enforcement or investigating officers for alleged offences have a duty to
disclose to prosecutors of the alleged offences all relevant information,
documents or other things obtained during the investigation that might
reasonably be expected to assist the case for the prosecution or the case for the
accused person.
(2) The duty of disclosure continues until one of the following happens--
(a) the prosecutor decides the accused person will not be prosecuted for the
alleged offence,
(b) the prosecution is terminated,
(c) the accused person is convicted or acquitted.
(3) Law enforcement or investigating officers for alleged offences also have a
duty to keep the documents or other things referred to in subsection (1) for as
long as the duty to disclose them continues under this section.
(4) Subsection (3) does not affect any other legal obligation about the possession
of the documents or other things.
(5) The regulations may make provision about the duties of law enforcement or
investigating officers under this section, including about--
(a) the recording of information, documents or other things, and
(b) verification of compliance with a duty imposed by this section.
(6) The duty imposed by this section is in addition to any other duties of law
enforcement or investigating officers in connection with the investigation and
prosecution of offences.
(7) The duty imposed by this section does not require law enforcement or
investigating officers to provide the prosecutor with any information,
document or other thing (protected material) that--
(a) is the subject of a claim of privilege, public interest immunity or
statutory immunity, or
(b) would contravene a statutory publication restriction if provided.
(8) The duty of a law enforcement or investigating officer in relation to protected
material is to inform the prosecutor of--
(a) the existence of the material, and
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Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
Schedule 1 Amendments
(b) the nature of the material and the claim or publication restriction
relating to it.
(9) However, a law enforcement or investigating officer must provide the
prosecutor with protected material if the prosecutor requests it be provided.
(10) This section does not impose a duty on a law enforcement or investigating
officer to provide information, documents or other things if the prosecutor is
the Director of Public Prosecutions.
Note-- The Director of Public Prosecutions Act 1986, section 15A imposes
comparable disclosure requirements on law enforcement or investigating officers in
relation to the Director of Public Prosecutions.
[3] Section 66 Charge certificates
Omit section 66(2)(b). Insert instead--
(b) for an alleged offence for which there are duties of disclosure under the
Director of Public Prosecutions Act 1986, section 15A--the prosecutor
has received and considered verification of compliance about the duties,
and
(c) for an alleged offence for which there are duties of disclosure under
section 36B--the prosecutor has received and considered verification
of compliance about the duties.
[4] Section 66(2A)
Omit the subsection.
[5] Section 113, heading
Omit "Director of Public Prosecutions". Insert instead "prosecutor".
[6] Section 113(1)
Omit "Director of Public Prosecutions". Insert instead "prosecutor".
[7] Section 142 Prosecution's notice
Omit "law enforcement officers" from section 142(1)(i).
Insert instead "law enforcement or investigating officers".
[8] Section 142(3)
Omit the subsection.
[9] Schedule 2 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering--
Part Provision consequent on enactment of Criminal
Procedure Legislation Amendment (Prosecution of
Indictable Offences) Act 2022
Application of amendments
(1) Subject to subclause (2), an amendment made by the amending Act to another
provision of this Act or the regulations under this Act extends to proceedings
commenced, but not yet committed for trial or sentence, before the
commencement day for the amendment.
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Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
Schedule 1 Amendments
(2) An existing DPP disclosure certificate relating to an offence in proceedings to
which subclause (1) applies may be used as verification of compliance
disclosure for section 66(2)(b), as inserted by the amending Act, relating to the
offence in the proceedings.
(3) In this clause--
amending Act means the Criminal Procedure Legislation Amendment
(Prosecution of Indictable Offences) Act 2022.
commencement day, for an amendment made to another provision of this Act
or the regulations under this Act, means the day on which the amendment
commences.
existing DPP disclosure certificate means a certificate mentioned in section
66(2)(b), as in force immediately before its substitution by the amending Act,
that was issued before the commencement of the substitution.
1.2 Criminal Procedure Regulation 2017
[1] Clause 4 Information for Criminal Listing Director
Omit "prosecuting authority" wherever occurring in clause 4(1)(a), (3) and (4).
Insert instead "prosecutor".
[2] Clauses 6(1), 7(1) and (4) and 9(2)
Omit "Director of Public Prosecutions" wherever occurring. Insert instead "prosecutor".
[3] Clause 9C Prosecutors who may exercise charge certificate and case conference
functions
Insert after clause 9C(c)--
(d) a person who--
(i) is the prosecutor in the committal proceedings for an indictable
offence, and
(ii) would be prosecuting the offence in the name of the Attorney
General if the offence is committed for trial.
[4] Schedule 1 Forms
Omit paragraph (b) from Form 1A, Part 2. Insert instead--
(b) [for an alleged offence for which there are duties of disclosure under the
Director of Public Prosecutions Act 1986, section 15A] verification of
compliance about the duties of disclosure under the Director of Public
Prosecutions Act 1986, section 15A has been received and considered.
--or--
(b) [for an alleged offence for which there are duties of disclosure under the
Criminal Procedure Act 1986, section 36B] verification of compliance
about the duties of disclosure under the Criminal Procedure Act 1986,
section 36B has been received and considered.
1.3 Director of Public Prosecutions Act 1986 No 207
[1] Section 3 Definitions
Insert in alphabetical order in section 3(1)--
law enforcement or investigating officer, for an alleged offence, has the same
meaning as in the Criminal Procedure Act 1986.
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Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
Schedule 1 Amendments
[2] Section 15A, heading
Insert "or investigating" after "law enforcement".
[3] Section 15A(1) and (3)
Omit "Law enforcement officers" wherever occurring.
Insert instead "Law enforcement or investigating officers".
[4] Section 15A(1A) and (7)
Omit "law enforcement officer" wherever occurring.
Insert instead "law enforcement or investigating officer".
[5] Section 15A(4)-(6)
Omit "law enforcement officers" wherever occurring.
Insert instead "law enforcement or investigating officers".
[6] Section 15A(1) and (3)
Omit "investigating" wherever occurring. Insert instead "for".
[7] Section 15A(9), definition of "law enforcement officer"
Omit the definition.
1.4 Director of Public Prosecutions Regulation 2020
[1] Clause 5, heading
Insert "or investigating" after "law enforcement".
[2] Clause 5(a) and (b)
Insert "or investigating" after "law enforcement" wherever occurring.
[3] Clause 5(c)
Omit "be signed and dated by the law enforcement officer's".
Insert instead "if the law enforcement or investigating officer is a law enforcement
officer--be signed and dated by the law enforcement officer's".
[4] Clause 5(2)
Insert at the end of clause 5--
(2) In this clause--
law enforcement officer means a law enforcement or investigating officer
who is--
(a) a police officer, or
(b) an officer of the New South Wales Crime Commission, or
(c) an officer of the Law Enforcement Conduct Commission, or
(d) an officer of the Independent Commission Against Corruption.
[5] Schedule 1 Disclosure certificate (for prosecutions and advisings)
Omit "law enforcement officer investigating".
Insert instead "law enforcement or investigating officer investigating".
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Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 [NSW]
Schedule 1 Amendments
[6] Schedule 1
Omit "I am aware that such claims".
Insert instead "I am aware that if I am a police officer, or an officer of the NSW Crime
Commission, the Law Enforcement Conduct Commission or the Independent Commission
Against Corruption, these kinds of claims".
[7] Schedule 1
Omit the following--
*If the disclosing law enforcement officer is a police officer, this form must be
signed by a police officer who holds a rank in the NSW Police Force senior to
the law enforcement officer. If the disclosing law enforcement officer is an
officer of the NSW Crime Commission, the Independent Commission Against
Corruption or the Police Integrity Commission, this form must be signed by
the Commissioner or an Assistant Commissioner of that agency.
Insert instead--
*This form needs to be signed by a superior officer only if the disclosing law
enforcement or investigating officer is a police officer or an officer of the
NSW Crime Commission, the Law Enforcement Conduct Commission or the
Independent Commission Against Corruption. For a police officer, it must be
signed by a police officer who holds a rank in the NSW Police Force senior to
the law enforcement officer. For other officers, it must be signed by the
Commissioner or an Assistant Commissioner of the agency.
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