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CRIMINAL PROCEDURE AMENDMENT BILL 2012

   Criminal Procedure Amendment Bill
                  2012

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                   General
The purpose of the Criminal Procedure Amendment Bill 2012 is to improve
the operation of criminal procedure laws in Victoria.
The Bill makes a range of amendments to the Criminal Procedure Act 2009
and the Children, Youth and Families Act 2005 to reform case
management processes and to improve the operation of criminal procedure
laws that apply to both adults and children in the criminal justice system.
The Bill introduces reforms to the Sentencing Act 1991, the Magistrates
Court Act 1991 and the Drugs, Poisons and Controlled Substances Act
1981 which will enable courts, police and other investigators to operate more
efficiently by providing additional powers and removing impediments to
their efficient operation. The Bill will also make a range of other
amendments that are technical or consequential in nature, to ensure the
efficient and effective operation of the criminal justice system.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the purposes of the Bill.

Clause 2    provides for the commencement of the Bill.
            Subclause (1) provides that the Act will commence on the day
            after the day on which Act receives Royal Assent, except for
            section 10.




571061                                 1         BILL LA INTRODUCTION 20/6/2012

 


 

Clause 2 provides that, unless section 10 is proclaimed to have commenced on a day before 1 November 2012, it comes into operation on that day. This forced commencement date is aligned with the forced commencement date of the Courts and Sentencing Legislation Amendment Act 2012. Clause 10 inserts a note at the foot of section 5 of the Criminal Procedure Act 2009 to refer to the alternative process for commencing proceedings with respect to a breach of a sentencing order under the Courts and Sentencing Legislation Amendment Act 2012. Clause 3 provides that the Principal Act for the purposes of this Bill is the Criminal Procedure Act 2009. PART 2--CRIMINAL PROCEDURE ACT 2009 Division 1--Appeal by offender against sentence Clause 4 inserts a definition of total effective sentence into section 3 of the Criminal Procedure Act 2009. This new definition provides that a total effective sentence is the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion. In Ludeman, Thomas and French v The Queen [2010] VSCA 333 the Court of Appeal considered whether the power to refuse leave to appeal against a "sentence" provided the court with a power to refuse leave to appeal where, despite an error in an individual sentence, there was no reasonable prospect that the Court of Appeal would impose a less severe total effective sentence. The court found that the definition of a sentence under section 3 of the Criminal Procedure Act 2009 does not include a "total effective sentence". Accordingly, the Court of Appeal could not refuse leave to appeal on the basis that there was no reasonable prospect that the Court of Appeal would impose a less severe total effective sentence. This new definition has been included to support the amendments in Division 1 of Part 2 of this Bill in relation to the way the Court of Appeal may deal with applications for leave to appeal against sentence where there is an error in the sentence first imposed and the appeal concerns a sentence which forms part of a total effective sentence. 2

 


 

This definition applies to a term of imprisonment as well as any period of detention in a youth justice centre or youth residential centre. Clause 5 substitutes current section 280 of the Criminal Procedure Act 2009 with a new section 280 which sets out how the Court of Appeal may determine an application for leave to appeal against sentence under section 278 of the Criminal Procedure Act 2009. Section 278 of the Criminal Procedure Act 2009 provides a person sentenced for an offence with a right of appeal to the Court of Appeal against the sentence imposed by the originating court. New section 280 expands the basis on which the Court of Appeal (or a single Judge of Appeal) may refuse leave to appeal to include where there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence. New section 280(1)(a) provides that the Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed. This is to the same effect as the current section 280(2) of the Criminal Procedure Act 2009. New section 280(1)(b) provides that leave to appeal under section 278 may alternatively be refused if there is an error in the sentence first imposed but there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence. New section 280(2) provides that, even if the Court of Appeal considers that there is a reasonably arguable ground of appeal, an application may still be refused under section 280(1). This is the same as the current section 280(3) of the Criminal Procedure Act 2009. New section 280(3) provides that, if the Court of Appeal refuses an application for leave to appeal because there is no reasonable prospect that it would reduce the total effective sentence despite there being an error in the sentence first imposed, the Court of Appeal may amend the sentence first imposed (and impose a lesser sentence) and make such orders that it deems necessary. This limited remedial power allows the Court of Appeal to correct errors in a sentence, without engaging the Court of Appeal in a full appeal. 3

 


 

Most applications for leave to appeal against sentence are heard by a single Judge of Appeal under section 315 of the Criminal Procedure Act 2009. Clause 5 also inserts a note at the foot of new section 280 which refers to the process under section 315 and clarifies that, if an application for leave to appeal is heard and refused under section 315(1), the applicant is entitled to have the application for leave to appeal considered by the Court of Appeal under section 315(2) of the Criminal Procedure Act 2009. Clause 6 substitutes current section 284A of the Criminal Procedure Act 2009 with a new section 284A. New section 284A sets out how the Court of Appeal may determine an application for leave to appeal under section 283 of the Criminal Procedure Act 2009. Section 284A applies to an application for leave to appeal against a sentence of imprisonment imposed by the County Court, on appeal from the Magistrates' Court, that is heard by a single Judge of Appeal under section 315 of the Criminal Procedure Act 2009. The process set out under new section 284A applies to applications for leave to appeal against sentence under section 283 in essentially the same manner that new section 280 applies to applications for leave to appeal against sentence under section 278, as set out under clause 5 of the Bill. New section 284A(1)(a) provides that the Court of Appeal may refuse an application for leave under section 283 in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence. New section 284A(1)(b) provides that, alternatively, leave to appeal under section 283 may be refused if there is an error in the sentence first imposed but there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence. New section 284A(2) provides that, even if the Court of Appeal considers that there is a reasonably arguable ground of appeal, an application may still be refused under section 284A(1). This is the same as the current section 284A(3) of the Criminal Procedure Act 2009. New section 284A(3) provides that, if the Court of Appeal refuses an application for leave to appeal because there is no reasonable prospect that it would reduce the total effective sentence despite there being an error in the sentence first imposed, the Court of Appeal may amend the sentence first 4

 


 

imposed (and impose a lesser sentence) and make such orders that it considers necessary. This limited remedial power allows the Court of Appeal to correct errors in a sentence, without engaging the Court of Appeal in a full appeal. Clause 6 inserts a note at the foot of new section 284A which refers to the process under section 315 and clarifies that, if an application for leave to appeal is heard and refused under section 315(1), the applicant is entitled to have the application for leave to appeal considered by the Court of Appeal under section 315(2) of the Criminal Procedure Act 2009. Clause 7 amends section 315 of the Criminal Procedure Act 2009. Section 315 of the Criminal Procedure Act 2009 provides that a single judge may exercise certain powers of the Court of Appeal including (among other things) the power to grant leave to appeal, and also sets out the procedures which apply if a single Judge of Appeal refuses an application to exercise a power referred to it under this provision. Subclause (1) amends the heading of section 315 to insert the words "Court of Appeal constituted by", so that the new heading to section 315 is "Powers which may be exercised by Court of Appeal constituted by a single Judge of Appeal". This amendment is consistent with the way a single judge exercising the powers of the Court of Appeal is referred to in other legislation. Subclause (2) amends section 315(1) to refer to the Court of Appeal constituted by a single Judge of Appeal, in a manner consistent with the amendment inserted by subclause (1) and with other legislation that refers to the exercise of the powers of the Court of Appeal by a single judge. Subclause (3) inserts a consequential change to the description of a single Judge to distinguish between the Court of Appeal as constituted by a single judge, and when the court is constituted by two or more judges. Subclause (4) inserts a new section 315(3). New section 315(3) provides that if the Court of Appeal constituted by a single Judge of Appeal refuses an application for leave but makes an order under section 280(3) or 284A(3) to impose a different sentence and the applicant makes an application to the Court of Appeal constituted by 2 or more Judges under section 315(2), the order is 5

 


 

stayed until the application is determined by the Court of Appeal constituted by 2 or more Judges of Appeal. Subclause (4) also inserts a new section 315(4) to provide that if an order of the Court of Appeal constituted by a single Judge of Appeal is stayed under section 315(3), that order will take effect upon the refusal of the application for leave to appeal by the Court of Appeal constituted by 2 or more Judges of Appeal. New section 315(4) also provides that, if the Court of Appeal grants the application for leave to appeal, the stayed order will be of no effect and the Court of Appeal will make a determination under section 281 or section 285 (as the case may be). Clause 8 inserts a new section 322(2) into the Criminal Procedure Act 2009 which provides that, for the purpose of section 322, the making of an order under new section 280(3) or 284A(3) is an imposition of a sentence. This amendment clarifies that if the Court of Appeal amends the sentence first imposed by substituting a less severe sentence and makes any other orders that the Court of Appeal considers necessary to be made, the Court of Appeal may impose this sentence in the absence of an offender. Clause 9 amends sections 327I(2) and 327I(3) to clarify the references in these provisions and to make consistent reference to where the Court of Appeal is constituted by a single Judge of Appeal. The amendments made by clause 9 are consistent with the way a single judge exercising the powers of the Court of Appeal is referred to throughout Division 1 of Part 2 of this Bill, as well as in other legislation. This substituted reference makes it clear when the powers of the Court of Appeal may be exercised by the Court of Appeal constituted by a single judge, or by two or more judges. Division 2--Miscellaneous amendments Clause 10 inserts a note at the foot of section 5 of the Criminal Procedure Act 2009. Section 5 sets out three ways in which a criminal proceeding may commence. This note has been inserted to reflect the alternative process for commencing proceedings under section 83AL of the Sentencing Act 1991 which provides that a charge in relation to a breach of a sentencing order is to be filed in the sentencing court. Section 83AL will be inserted into the 6

 


 

Sentencing Act 1991 by the Courts and Sentencing Legislation Amendment Act 2012. Clause 11 amends section 24 of the Criminal Procedure Act 2009 to provide that, where the Notice to Appear process is used for commencing proceedings under section 22 of the Criminal Procedure Act 2009, the preliminary brief must be served within 21 days of the charge-sheet being filed. Clause 12 amends section 54(2) of the Criminal Procedure Act 2009 which sets out when a summary case conference must be conducted in relation to the prosecution of summary offences. Currently, a preliminary brief is required to be served within 7 days of the charge-sheet being filed in order to trigger the relevant provision to require the holding of the summary case conference. The proposed amendment would extend that time to 21 days. Clause 13 substitutes paragraph (d) in section 181(2) of the Criminal Procedure Act 2009 in relation to the powers of the court at a directions hearing in respect of a trial for a sexual offence in which the complainant is a child or person with a cognitive impairment. New paragraph (d) provides that the court may make a direction in relation to when a special hearing for taking the evidence of a complainant must be conducted under Division 6 of Part 8.2 of the Criminal Procedure Act 2009. This new power complements changes made to Division 6 by clause 24 of this Bill which will enable a special hearing to be conducted either before or during a trial. Currently, special hearings must be conducted before the commencement of a trial. At the directions hearing, the court may require the parties to indicate their availability to participate in a special hearing and may direct that the special hearing is to be held before the trial commences or during the trial in accordance with section 370(1A), including the date on which that special hearing is to be conducted. Clause 14 amends section 237 of the Criminal Procedure Act 2009 to clarify the circumstances in which a trial judge may comment, or grant leave for a party to comment, on a departure from the disclosed evidence or the failure of an accused to adduce particular evidence in the course of a trial. 7

 


 

Clause 14 amends section 237(2) to clarify when a trial judge may grant leave to a party to comment on such a departure or failure. Section 237(2) currently provides that leave may be granted only when the proposed comment is relevant and not likely to produce a miscarriage of justice. This test is of little assistance to a trial judge. Clause 14(1)(b) substitutes paragraph (b) of subsection (2) to provide further guidance as to when a trial judge may grant leave to a party to comment on a departure or a failure, namely, where the proposed comment is permitted by another Act or a rule of law and the proposed comment is not unfairly prejudicial to the party about whom the comment is made. Clause 14(2) repeals section 237(3). Subsection (3) deals with complicated situations in which a comment may and may not suggest that an inference of guilt may be drawn from the departure or failure. Where the document in question is the accused's document, further considerations and limitations arise because the document in question will normally have been prepared by the accused's lawyer (see DPP v McEwan, Robb and Dambitis (Ruling No 2) [2012] VSC 170). Consequently, the document may not necessarily reflect all of the accused's instructions in the document, which is itself a summary. The development of the common law has effectively rendered such comment impermissible except, possibly, in undefined exceptional circumstances, therefore complicating and minimising the utility of this provision (see RPS v R (2000) 199 CLR 620, Azzopardi v R (2001) 205 CLR 50 and Dyers v R (2002) 210 CLR 285). While those decisions concerned the equivalent of section 20 of the Evidence Act 2008, the limitations they create are likely to apply to section 237. Clause 15 amends section 253B of the Criminal Procedure Act 2009 which provides a process for determining when a finding of guilt occurs in either a trial or following a plea of guilty. The amendment clarifies that a "judge", in addition to a "trial judge", may make a finding of guilt in either a trial or following a guilty plea. Section 253B currently provides that a trial judge may make such a finding, which is appropriate where an accused has been found guilty by virtue of a jury verdict or during trial proceedings. This amendment recognises that an accused may 8

 


 

enter a plea of guilty upon arraignment, at which time the trial has not commenced and the presiding judge is not described as the "trial judge" for the purposes of the Criminal Procedure Act 2009. Clause 16 amends section 263 of the Criminal Procedure Act 2009 to clarify that where the court does not grant leave to appeal under section 263 in respect of late notice of appeal, the appeal is struck out. Section 263 provides that late notice of an appeal is deemed to be an application for leave to appeal and, under section 263(2) the court may grant leave to appeal. Clause 16 inserts new subsections (3), (4) and (5) to clarify what happens when leave is refused. New subsections (3) to (5) provide that, if the court does not grant leave to appeal out of time, the court must strike out the appeal. If a term of imprisonment or detention had already been imposed before the appellant lodged a late notice to appeal, that sentence is reinstated and a registrar of the County Court may issue a warrant to imprison the appellant and may similarly recall or cancel that warrant. This amendment follows the process and powers used in similar situations in sections 266 and 267 of the Criminal Procedure Act 2009. Clause 17 inserts two notes at the foot of section 271(1) of the Criminal Procedure Act 2009 to replace the single note currently at the foot of this section. The first note reinserts the note that is currently at the foot of section 271(1). This note refers to the further right to appeal from the County Court to the Court of Appeal in certain circumstances under section 283. The second note refers to the new process provided under clause 18 of the Bill. This note clarifies that proposed section 302A (inserted by clause 18) of the Criminal Procedure Act 2009 provides for the reservation of a question of law for determination by the Court of Appeal during the hearing of an appeal by the County Court. 9

 


 

Clause 18 inserts a new section 302A into Division 5 of Part 6.3 of the Criminal Procedure Act 2009 to provide a mechanism for reserving a question of law from the appellate jurisdiction of the County Court for determination by the Court of Appeal. Division 5 of the Criminal Procedure Act 2009 currently provides a case stated process for the reservation of a question of law from a proceeding in the County Court in its original jurisdiction or the Trial Division of the Supreme Court for the prosecution of an indictable offence. This amendment reinstates a power previously available under section 446 of the Crimes Act 1958 prior to 1 January 2010. Clause 19 inserts a new subsection (2) into section 303 the Criminal Procedure Act 2009 with respect to the new case stated power provided under clause 18. New section 303(2) provides that, if a court reserves a question of law from the appellate jurisdiction of the County Court for consideration by the Court of Appeal, the hearing in the appellate jurisdiction is adjourned until the question of law has been determined by the Court of Appeal. This amendment means that when a question of law is reserved under proposed section 302A of the Criminal Procedure Act 2009, a hearing is adjourned in the same way as it would if the question of law was being referred from the original jurisdiction of the court under section 302. Clause 20 makes consequential amendments to various sections in Division 5 of Part 6.3 of the Criminal Procedure Act 2009 with respect to the case stated power provided under clause 18. Subclause (1) amends section 304(1) of the Criminal Procedure Act 2009 to include a reference to proposed section 302A. This provides that if an application to reserve a question of law is refused in the appellate jurisdiction, the applicant is entitled to apply to the Court of Appeal calling on the court and the respondent to show cause why the application was dismissed. This ensures the process under proposed section 302A is the same for a question of law reserved under section 302. Subclause (2) amends section 305(1) and 306(2) of the Criminal Procedure Act 2009 to include a reference to proposed section 302A. Section 305(1) is amended to require the appellate jurisdiction of the County Court to state a case to the Court of Appeal when a question of law is reserved for consideration by 10

 


 

the Court of Appeal. Section 306(2) amends the general powers of the Court of Appeal on a case stated. This provision empowers the Court of Appeal to remit the question of law reserved under proposed section 302A (consistent with a question of law reserved under section 302 or section 304) and the determination of the Court of Appeal back to the appellate jurisdiction of the County Court. Subclause (3) amends section 308(4) of the Criminal Procedure Act 2009 to refer to a trial or a hearing. This amendment reflects that the County Court in its appellate jurisdiction conducts a hearing of a charge rather than a trial. Clause 21 amends section 366(1) of the Criminal Procedure Act 2009 to broaden the application of Division 5 of Part 8.2. Division 5 allows the evidence of children and cognitively impaired witnesses to be recorded in a formal interview and then used in court as that witness's evidence-in-chief. This type of recorded evidence, which involves questioning conducted by trained police officers or child psychologists, is known as video and audio recorded evidence (VARE recordings). This Division currently only applies to proceedings in relation to sexual offences or indictable offences which involve an assault on, injury or threat of injury to a person. Clause 21 inserts a new section 366(1)(c) which broadens the application of Division 5 so that VARE recordings may now be used in proceedings in relation to three additional offences under the Crimes Act 1958. These additional offences are the offence of producing child pornography (section 68), the offence of procuring a minor for pornography (section 69) and the offence of sexual performance involving a minor (section 70AC). Clause 21 also inserts a new section 366(1)(d) which broadens the application of Division 5 to also include the summary offences of common assault (section 23) and aggravated assault (section 24) under Summary Offences Act 1966. However, section 366(1)(d) specifies that Division 5 only applies to these types of offences when they are related offences to an offence to which Division 5 already applies (under section 366(1)(a) or (b)) or an offence referred to in proposed section 366(1)(c). The term related offence is defined in section 3 of the Criminal Procedure Act 2009 to mean an offence that is founded on the 11

 


 

same facts or form, or is part of, a series of offences of the same or a similar character. This will apply even if the charge for the related offence is withdrawn before the charge for the summary offence can be heard and determined. This qualification of the application of Division 5 ensures that VARE recordings are admissible in relation to a proceeding for a related summary charge where the charge for the indictable offence has been withdrawn or dismissed. Clause 22 amends section 368 of the Criminal Procedure Act 2009 to provide that VARE recordings produced under Division 5 may be admissible as evidence in a limited range of circumstances in other proceedings. Section 368(3) provides that the court may rule as inadmissible the whole or any part of the contents of a recording. Subclause (1) amends section 368(3) to clarify that, where the court has ruled a portion of a recording to be inadmissible, the court may direct that the recording be edited or altered to delete any part of it that is ruled inadmissible. Subclause (2) inserts a new section 368(4) into the Criminal Procedure Act 2009 which provides that VARE recordings may be admitted as the evidence-in-chief of the witness, in any new trial or appeal that resulted from the proceeding, in relation to which the VARE was originally produced. Proposed section 368(4) also provides that a VARE may be admissible in another proceeding in the same court for the charge for an offence or a related offence to those set out under section 366(1). The use of VARE recordings in other proceedings is qualified by section 368(1)(b). Section 368(1)(b) provides that, before a recording may be used in another proceeding under section 368, the court must be satisfied that the accused and his or her legal practitioner were given a reasonable opportunity to listen to and view the VARE recording in accordance with the Criminal Procedure Regulations 2009. Subclause (3) amends section 368 to allow the court to abridge the time frame within which a transcript of a VARE recording must be served. Currently, a transcript of a VARE recording must be served on the accused at least 14 days before the hearing or trial in which it is used. This amendment allows the court to abridge this time frame where the court considers it in the 12

 


 

interests of justice to so, for example, where the accused is ready to proceed. Clause 23 inserts a new section 368A into the Criminal Procedure Act 2009 to allow a court to order the production of a VARE recording in certain circumstances. Proposed section 368A(1) allows a VARE recording which has been produced for the purposes of a proceeding for a sexual assault, relevant indictable or summary offence (that is a related offence) referred to in section 368, to be used in another proceeding. The court before which that proceeding is being conducted may order the production of the VARE recording only when it is in the best interests of the witness to do so, this may include whether it is in the best interests of the witness to avoid having to give their evidence multiple times. The court order will restrict who has access to the recording by specifying the persons who may view or listen to the recording, when and where it is to be produced and, if necessary, any requirements as to the destruction of the recording. New section 368A(4) clarifies that a reference to a court in proposed section 368A is also a reference to a tribunal if a complainant is the applicant in a proceeding before that tribunal. The specific reference to a tribunal has been included in this provision to ensure that, where a child or cognitively impaired complainant is an applicant before a tribunal hearing (for example, the Victims of Crime Assistance Tribunal), that complainant will not be required to provide their evidence again for the purposes of that hearing. Clause 24 amends section 370 (in Division 6 of Part 8.2) of the Criminal Procedure Act 2009 to accommodate the amendments made by clauses 24 to 29 of the Bill to the way special hearings are conducted under Division 6. Clauses 24 to 29 amend Division 6 to allow special hearings to be conducted during trials. Currently, a special hearing must be conducted before the commencement of a trial. Subclause (1) omits the reference to "pre-recording" from the heading to section 370 of the Criminal Procedure Act 2009 and substitutes it with the word "recording" to reflect the updated content of the section after the proposed amendments to it. 13

 


 

Subclause (2) amends section 370(1)(b) of the Criminal Procedure Act 2009 to specify that if a complainant has given his or her evidence at a special hearing that has been conducted before a trial, that complainant's evidence must be presented to court in the form of the recording made at the pre-trial special hearing. If the special hearing is conducted during the trial it is not necessary to separately present the recording at the trial. If a special hearing is held during a trial and then the jury is discharged, the relevant trial is the new trial. Because the recording is held before the (new) trial the recording may be presented to the court at the new trial in the form of that recording. Subclause (3) inserts new sections 370(1A) and 370(1B). Proposed section 370(1A) provides that the court must direct whether a special hearing is to be conducted before the trial or during the trial. In making a direction under section 370(1A), the court must have regard to a number of factors, including as to the capacity of the witness to give evidence during a trial and to ensure that the court's determination is in the best interests of the complainant. These factors include the age and maturity of a child complainant, or the severity of a cognitively impaired complainant's cognitive impairment. Clause 25 amends section 371 of the Criminal Procedure Act 2009 to change the existing exceptional circumstances test that applies to extending the time for holding a special hearing. Section 371(1) of the Criminal Procedure Act 2009 requires that a special hearing be conducted within three months of an accused being committed for trial, unless the court extends the time for holding the special hearing due to the existence of exceptional circumstances. Clause 25 replaces the exceptional circumstances test with a requirement that the court must have regard to a number of factors when determining whether it is in the interests of justice to extend the time for holding a special hearing. These factors include having regard to the particular individual needs of the child or cognitively impaired complainant and the period of time since the complaint was made. 14

 


 

Clause 26 inserts a new section 371A into the Criminal Procedure Act 2009 which provides that if the court directs that a special hearing is to be held during a trial, the court must, as far as possible, ensure that the special hearing commences on the date specified at the Directions Hearing. This provision provides greater certainty concerning when a complainant will give their evidence. The court must also seek to ensure that the complainant's evidence given during the trial is interrupted to the least extent possible. For instance, where the accused applies to have the jury discharged, this application will normally be dealt with straight away, to avoid wasting court time. If a special hearing is being conducted, the interests of the complainant will prevail. Because the evidence is being recorded, if the application to discharge the jury is successful, the recorded (complete) evidence of the complainant can be played, with any necessary editing, at a subsequent trial with a newly empanelled jury. Clause 27 inserts a new section 372(1)(b) into the Criminal Procedure Act 2009. Section 372(1) sets out how a special hearing is conducted, including who will be present in the room in which the complainant will provide their evidence, who will be located in the courtroom and that the complainant's evidence will be transmitted into the courtroom by means of closed circuit television. Proposed section 372(1)(b) clarifies that, when the court directs that the special hearing be conducted during a trial, the jury will be present in the courtroom during the special hearing. Clause 28 makes consequential amendments to section 373(1) and section 374(1) of the Criminal Procedure Act 2009 to remove specific references to a special hearing conducted before a trial commences as referred to in section 370(1). The reference to section 370(1) is replaced with a generic reference to the conduct of a special hearing, allowing both provisions to apply to special hearings that are conducted before trial or during trial. Clause 29 inserts a new section 375A into the Criminal Procedure Act 2009 to include a specific jury warning that must be given by a trial judge if a special hearing is to be held during a trial. If a special hearing is held during a trial, proposed section 375A requires a trial judge to warn the jury against the drawing of adverse inferences against the accused or to accord greater or 15

 


 

lesser weight to the evidence tendered by the complainant because of the arrangements made for the conduct of the special hearing. The jury warning to be given under proposed section 375A is consistent with the jury warning given under section 361 of the Criminal Procedure Act 2009 in relation to the use of alternative arrangements in the courtroom to allow a witness to give their evidence. Clause 30 amends Schedule 3 to the Criminal Procedure Act 2009 which lists the persons, or classes of persons, authorised to witness statements in preliminary briefs, full briefs or hand-up briefs under that Act. The list of authorised persons in Schedule 3 includes a number of persons (or classes of persons) who are also empowered to witness such statements because they fall within the definition of persons authorised to take affidavits under section 123C(1) of the Evidence (Miscellaneous Provisions) Act 1958. Section 123C(1) provides a list of persons before whom an affidavit may be sworn and taken. This list includes a person employed under Part 3 of the Public Administration Act 2004 (section 123(1)(C)(gb)). To avoid unnecessary duplication, clause 30 amends Schedule 3 by including a new reference to "persons authorised to take affidavits under section 123C(1)(gb) of the Evidence (Miscellaneous Provisions) Act 1958". This amendment captures a range of persons who were listed in Schedule 3. Consequential amendments are made to remove the references to those persons who fall within the reference to persons authorised to take affidavits under the Evidence (Miscellaneous Provisions) Act 1958 (see items 20, 24, and 28 of Schedule 3). Clause 30 also amends Schedule 3 to prescribe 7 additional categories of persons as persons authorised to witness statements in preliminary briefs, full briefs and hand up briefs. Clause 31 is a statute law revision provision which addresses a typographical error by substituting the word "Incorporations" with the word "Incorporation" in section 393(3) of the Criminal Procedure Act 2009. 16

 


 

Division 3--Transitional provisions for amendments by Divisions 1 and 2 Clause 32 inserts a new section 442 into the Criminal Procedure Act 2009 which provides for the transitional arrangements with respect to the commencement and application of the relevant amendments introduced in this Bill. New section 442(1) provides for the transitional arrangements with respect to the amendments made by Division 1 of Part 2 of the Bill which provide new powers for the Court of Appeal when refusing to grant leave to appeal against sentence. Section 442(1) provides that the new arrangements will apply to an application for leave to appeal against sentence that is determined on or after the commencement of the Act, irrespective of when that application first commenced. Section 442(2) provides the transitional arrangement for the application of the amendments made to Division 5 of Part 8.2 with respect to the expended use of VARE recordings, at clauses 22 and 23 of the Bill. Section 442(2) provides that the broadened application of Division 5 will apply to VARE recordings that have been made before or after the commencement of the Act. Section 442(3) sets out the transitional arrangements for the application of the amendments to Division 6 of Part 8.2 with respect to the conduct of special hearings, at clauses 24, 25, 26, 27, 28 and 29 of the Bill. The proposed section provides that the change to the special hearing provisions to allow special hearings to be held during trials, and to extend time limits for holding special hearings, apply to proceedings in which the special hearing is held on or after the commencement of the Bill. This will include matters currently before the court where the accused has been committed for trial but the special hearing has not been held. PART 3--CHILDREN, YOUTH AND FAMILIES ACT 2005 Clause 33 inserts new section 430(3) to (5) into the Children, Youth and Families Act 2005 which provides that, where the court does not grant leave to appeal under section 430(2) in respect of late notice of an appeal, the appeal is struck out. This amendment mirrors the amendment by clause 16 of the Bill with respect to 17

 


 

the power of the County Court to strike out an appeal, where leave to appeal out of time has been refused. Section 430(1) currently provides that late notice of an appeal is deemed to be an application for leave to appeal and, under section 430(2) the court may grant leave to appeal. Proposed section 430(3) to (5) provide that, if the court does not grant leave to appeal out of time, the court must strike out the appeal. If a term of imprisonment or detention had already been imposed by the Children's Court before the appellant lodged a late notice to appeal, that sentence is reinstated and a registrar of the County Court or the Prothonotary of the Supreme Court may issue a warrant to imprison the appellant and may similarly recall or cancel that warrant. Clause 34 amends the heading to Division 6 of Part 5.4 of the Children, Youth and Families Act 2005 to omit the words "and referral of point of law to Court of Appeal". The heading of Division 4 has been amended to accommodate the insertion of a new Division 6A by clause 35 which deals with referrals of points of law from the Children's Court to the Court of Appeal. As far as possible, the provisions in new Division 6A inserted by clause 35 mirror the case stated process set out in Division 5 of Part 6.3 of the Criminal Procedure Act 2009. Clause 35 inserts a new Division 6A into Part 5.4 of the Children, Youth and Families Act 2005 which provides for the reservation of a question of law from the County Court or Trial Division of the Supreme Court, on appeal from the Children's Court, for determination by the Court of Appeal. The amendment made by clause 35 essentially mirrors the amendment by clause 18 which provides a power to reserve a question of law from the appellate jurisdiction of the County Court to the Court of Appeal for its determination. The only difference is to recognise that an appeal from the Children's Court is to the County Court unless the President of the Children's Court heard the matter. In this situation, the appeal is heard by the Trial Division of the Supreme Court. 18

 


 

Proposed Division 6A of the Children, Youth and Families Act 2005 includes five new sections which provide for the referral of a question of law to the Court of Appeal on an appeal from the Children's Court to the County Court or the Trial Division of the Supreme Court. Section 430VA provides that, if a question of law arises during the hearing of an appeal to the County Court or the Trial Division of the Supreme Court from the Children's Court, either court may reserve that question of law for determination by the Court of Appeal if that court considers it is in the interests of justice to do so. Section 430VB provides that, if the County Court or Trial Division of the Supreme Court reserves a question of law for determination by the Court of Appeal under section 430VA, the hearing of the appeal from the Children's Court in the County Court or the Trial Division of the Supreme Court must be adjourned, if reasonably practicable, until the Court of Appeal has made its determination. Section 430VC provides for the process upon a refusal by the County Court or the Trial Division of the Supreme Court to reserve a question of law under section 430VA. This new provision mirrors the process that applies under section 304 of the Criminal Procedure Act 2009 upon a refusal to reserve a question of law under section 302 of that Act. Section 430VD provides that if a court reserves a question under 430VA or by order of the Court of Appeal under 430VC that court must state the case setting out the question and the circumstances in which the question has arisen. This provision mirrors the powers of the Court of Appeal on a case stated under section 305 of the Criminal Procedure Act 2009. Section 430VE sets out the general powers of the Court of Appeal in determining a question of law which has been reserved for its determination. This new section mirrors section 306 of the Criminal Procedure Act 2009. Section 430VF provides that the final determination of the Court of Appeal in response to the referred question of law must be transmitted back to the court that reserved the question for its determination. This section mirrors the process under section 307 of the Criminal Procedure Act 2009. 19

 


 

Clause 36 inserts a new section 430WA into the Children, Youth and Families Act 2005 which provides that Division 7 of Part 6.3 of the Criminal Procedure Act 2009 applies as if a reference to that Part were a reference to new Division 6A of the Children, Youth and Families Act 2005. Division 7 of Part 6.3 of the Criminal Procedure Act 2009 sets out the powers of the court and the procedures that apply on a case stated from the County Court or the Supreme Court to appeal to the Court of Appeal. This amendment allows those provisions to apply as needed to an appeal and case stated from the Children's Court to the Court of Appeal. Clause 37 inserts a transitional provision as proposed section 622 of the Children, Youth and Families Act 2005 concerning the commencement and application of proposed Division 6A of Part 5.4 to appeals from the Children's Court to the County Court or Trial Division of the Supreme Court. Proposed section 622 provides that these amendments will apply to a question of law that arises in a proceeding on or after the commencement of the Act, irrespective of when the proceeding commenced. PART 4--AMENDMENT OF OTHER ACTS Division 1--Magistrates' Court 1989 Clause 38 amends section 78(5) of the Magistrates' Court Act 1989 with respect to the procedures that must be followed after the execution of a search warrant. Section 78(1)(b)(i) authorises the person to whom the warrant is directed to enter premises and search for articles, things or material described in the warrant. Section 78(1)(b)(ii) then requires the person to bring those items before the Court so that the matter may be dealt with according to law. The requirement to physically bring an item before the Court is limited by section 78(5), which provided that if items are "bulky or cumbersome", they may be brought before the Court by giving evidence to the Court as to their present location and by producing photographs of them. Clause 38 removes the words "bulky and cumbersome" from section 78(5) of the Magistrates' Court Act 1989. Therefore, all seized items may satisfy the requirement to be brought before the court under section 20

 


 

78(1)(b)(ii) by giving evidence on oath as to their physical location and producing photographic evidence. Clause 39 makes consequential amendments to section 57 of the Magistrates' Court Act 1989 to reflect the new circumstances, provided in this Bill, in which a warrant may be issued. Clause 40 inserts a transitional provision in relation to the application of the amended warrant procedures under section 78(5) of the Magistrates' Court Act 1989. This transitional arrangement provides that the amendment applies to a search warrant issued on or after the commencement of this Bill. Division 2--Drugs, Poisons and Controlled Substances Act 1981 Clause 41 amends section 81 of the Drugs, Poisons and Controlled Substances Act 1981 to amend the procedures following the execution of a search warrant under that Act to provide that all items seized pursuant to a search warrant may be brought before the court by giving evidence on oath as to their physical location and producing photographic evidence of the item. The effect of this amendment is consistent with the amendment to the Magistrates' Court Act 1989 by clause 38. Clause 42 inserts a transitional provision in relation to the amended warrant procedures under section 81 of the Drugs, Poisons and Controlled Substances Act 1981. This transitional provision provides that amendments to section 81 will apply to a search warrant issued on or after the commencement of this Bill. Division 3--Sentencing Act 1991 Clause 43 substitutes section 6AAA(4) of the Sentencing Act 1991 with a new subsection (4) in order to clarify the requirements of a judge to record a sentence discount in respect of a guilty plea. Section 6AAA of the Sentencing Act 1991 sets out the process the court must follow if it is reducing a sentence it is imposing by virtue of a plea of guilty. Section 6AAA(2) provides that when imposing a sentence in respect of multiple charges, it is sufficient for the sentencing court to declare the total effective sentence (and non-parole period) which would have been imposed but for the plea of guilty, and need not do so with respect to the individual sentences. New section 6AAA(4) accords with the 21

 


 

obligation imposed by section 6AAA(2) and requires that, if the court is reducing a sentence due to a plea of guilty, the court must record the sentence reduction on the overall sentence, rather than the sentence that would have been imposed in relation to each individual charge but for the guilty plea. Clause 44 amends section 9(4) of the Sentencing Act 1991. Section 9 provides that, where there are two or more offences which are founded on the same facts, or form, or are part of a series of offences of the same or a similar character an aggregate sentence of imprisonment may be imposed in respect of these offences, unless otherwise excluded under section 9(1A). This section sets out the rules and procedures that the court must follow when imposing aggregate sentences of imprisonment. In DPP v Felton [2007] VSCA 65 the Court of Appeal raised concerns in relation to the imposition of aggregate sentences of imprisonment in the higher courts. In the leading judgement, Kellam AJA indicated that when imposing an aggregate sentence, the sentencing judge must identify the separate events giving rise to specific counts and to order accumulation if appropriate, or alternatively to state that all counts the subject of an aggregate sentence are being treated as concurrent. This decision created difficulties in relation to the imposition of aggregate sentences. To partially address these difficulties, the Justice Legislation Amendment Act 2010 inserted a new section 9(4) which provided that if the Supreme Court or County Court hears and determines charges for summary offences that are related or unrelated to an indictable offence and an aggregate sentence is imposed, the sentencing judge is not required to identify separate charges or to articulate the sentences that would have been imposed for each charge had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively. This amendment made clear that the power to impose an aggregate sentence in relation to related and unrelated summary offences in the County and Supreme Courts should operate in the same way as aggregate sentences of imprisonment operate in the Magistrates' Court. Subclause (1) amends section 9(4) by removing the limited application of this provision to charges for summary offences, so that it also applies to indictable offences. Proposed section 9(4) provides that sentencing judges are not required to identify 22

 


 

separate charges, or to articulate the sentences that would have been imposed for each charge had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively, when imposing an aggregate sentence of imprisonment in respect of charges for summary or indictable offences. The use of aggregate sentences remains subject to the existing qualifications in section 9(1A). Subclause (2) inserts a new section 9(4A) to provide that an aggregate sentence of imprisonment may be imposed in relation to a rolled-up charge or a representative charge, that is where there are multiple charges within a charge. Clause 44 also inserts a note to proposed section 9(4A) which explains what a representative charge is and what a rolled up charge is. Clause 45 amends section 51(2) of the Sentencing Act 1991 to provide that if the County Court or Supreme Court imposes an aggregate fine in respect of two or more charges, the sentencing judge is not required to identify separate events giving rise to specific charges, or to articulate the sentences that would have been imposed for each charge, had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively. This ensures consistency with the new process under section 9(4) of the Sentencing Act 1991. Subclause (2) inserts new section 51(2A) which provides that an aggregate fine may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge. This amendment provides that the process for the imposition of an aggregate fine is the same as that for an aggregate sentence of imprisonment under new section 9(4A). Clause 46 inserts a transitional provision as proposed section 145 of the Sentencing Act 1991. Proposed section 145(1) provides the transitional arrangements for the amendments to section 9 of the Sentencing Act 1991 with respect to the imposition of aggregate sentences of imprisonment. The new process will apply to the sentencing of a person that takes place on or after the commencement of new clause 44, irrespective of when the offences were committed or the findings of guilt were made. 23

 


 

Proposed section 145(2) provides the transitional arrangements for the amendments to section 51 of the Sentencing Act 1991 with respect to the imposition of aggregate fines. The new process will apply to the sentencing of a person that takes place on or after the commencement of clause 45, irrespective of when the offences were committed or the findings of guilt were made. Division 4--Crimes Act 1958 Clause 47 is a statute law revision provision which amends section 464JC(2A) of the Crimes Act 1958 to remove the references to "authorised person" and substitute it with correct references to "investigating official". PART 5--REPEAL OF AMENDING ACT Clause 48 states that this Bill, when enacted, is repealed on 1 November 2013. The repeal of this Bill on that date does not affect the continuing operation of the amendments made to other Acts by this Bill, by virtue of section 15(1) of the Interpretation of Legislation Act 1984. 24

 


 

 


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