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CRIMINAL PROCEDURE ACT 2009 - SCHEDULE 4

Schedule 4––Savings and transitional provisions

Section 439

        1     Definitions

In this Schedule—

"commencement day" means the day on which this Act (other than Chapter 1 and section 437) comes into operation;

"superseded provision" means a provision of an Act that has been amended or repealed by this Act or the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 .

        2     General transitional provision

    (1)     Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .

    (2)     If a superseded provision of an Act continues to apply by force of this Schedule, the following provisions also continue to apply in relation to that provision—

        (a)     any other provisions of that Act necessary to give effect to that continued provision; and

        (b)     any regulations or rules of court made under that Act for the purposes of that continued provision.

    (3)     This Schedule applies despite anything to the contrary in any other provision of this Act.

        3     Renumbering

On and from the commencement day, unless the context otherwise requires, in an Act or in an instrument made under an Act or in any other document of any kind, a reference to a provision of this Act that has been renumbered or relocated must be construed as a reference to the provision as renumbered or relocated and in force for the time being.

        4     References to superseded provisions

A reference to a superseded provision in any Act (other than this Act or the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 ) or in any rule, regulation, order, agreement, instrument, deed or other document of any kind must, so far as it relates to any period on or after the commencement day and if not inconsistent with the context or subject matter, be construed as a reference to the relevant provision of this Act.

        5     Commencing a criminal proceeding

    (1)     Chapter 2 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed.

Note

Section 5 sets out how a criminal proceeding is commenced.

    (2)     Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended.

        6     Summary procedure

    (1)         Chapter 3 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed.

Note

Section 5 sets out how a criminal proceeding is commenced.

    (2)     Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended.

        7     Committal proceeding

    (1)     Chapter 4 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed.

Note

Section 5 sets out how a criminal proceeding is commenced.

    (2)     Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended.

    (3)     Section 145 applies to an accused committed for trial on or after the commencement day.

        8     Trial

    (1)     On and from the commencement day, Chapter 5 applies to a criminal proceeding in which—

        (a)     the accused is committed for trial; or

        (b)     a direct indictment is filed against the accused—

on or after the commencement day.

    (2)     If an accused is committed for trial on or after the commencement day in a criminal proceeding that was commenced before the commencement day, the criminal proceeding is taken to be a criminal proceeding commenced under Chapter 2.

    (3)     On and from the commencement day—

        (a)     section 168 applies to a criminal proceeding in which the accused was committed for trial before the commencement day;

        (b)     sections 216 and 241 apply to an accused committed for trial or against whom a presentment was filed before the commencement day, as if the presentment were an indictment filed under this Act;

Sch. 4 cl. 8(3A) inserted by No. 30/2010 s. 75.

    (3A)     An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day—

        (a)     was committed for trial; or

        (b)     was given a notice of trial or a notice of intention to prefer a presentment—

if the indictment charges the same or a related offence against at least one other accused who was not committed for trial for that offence before the commencement day.

Sch. 4 cl. 8(3B) inserted by No. 30/2010 s. 75.

    (3B)     An indictment may be filed in accordance with Part 5.2 charging an accused with an offence in respect of which that accused, before the commencement day—

        (a)     was committed for trial; or

        (b)     was given a notice of trial or a notice of intention to prefer a presentment—

if the indictment charges a related offence in respect of which the accused was not committed for trial before the commencement day.

Sch. 4 cl. 8(3C) inserted by No. 30/2010 s. 75.

    (3C)     If an indictment is filed under subclause (3A) or (3B)—

        (a)     Chapter 5 applies to each charge in the indictment; and

        (b)     the criminal proceeding against each accused is taken to be a criminal proceeding commenced under Chapter 2; and

        (c)     where presentment of an accused has already been made, a charge in the indictment for the same offence as an offence charged in the presentment or a related offence is taken to be a fresh indictment filed under section 164.

    (4)     Subject to this clause—

        (a)     the Crimes Act 1958 ; and

        (b)     the Crimes (Criminal Trials) Act 1999 ; and

        (c)     the Public Prosecutions Act 1994

as in force immediately before the commencement day continue to apply to an accused who, before the commencement day—

        (d)     was committed for trial; or

        (e)     was given a notice of trial or a notice of intention to prefer a presentment.

        9     New trial or further hearing

    (1)     Subject to subclause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or further hearing, irrespective of when the first trial or hearing was conducted.

    (2)     Subclause (1) does not apply to a new trial or further hearing that is ordered under Division 4 or 5 of Part 6.3 in a proceeding that commenced before the commencement day.

        10     Appeals

    (1)     Part 6.1 applies to an appeal in relation to a sentence imposed by the Magistrates' Court on or after the commencement day.

    (2)     Section 567A(1A) of the Crimes Act 1958 as in force immediately before the commencement day continues to apply to a sentence passed before the commencement day.

    (3)     Part 6.2 applies to an appeal from a final order of the Magistrates' Court made on or after the commencement day.

    (4)     Divisions 1, 2 and 3 of Part 6.3 apply to an appeal where the sentence is imposed on or after the commencement day.

    (5)     Division 4 of Part 6.3 applies to an interlocutory decision made in a proceeding on or after the commencement day, irrespective of when the proceeding commenced.

    (6)     Division 5 of Part 6.3 (other than section 308) applies to a question of law that arises in a proceeding on or after the commencement day, irrespective of when the proceeding commenced.

    (7)     Section 308 applies to an acquittal recorded on or after the commencement day, irrespective of when the proceeding commenced.

    (8)     On and from the commencement day, a finding of guilt or a conviction, decision or determination in a criminal proceeding that has been quashed before the commencement day is taken to have been set aside.

        11     Petitions for mercy

    (1)     Chapter 7 applies to a petition for mercy made on or after the commencement day, irrespective of when the proceeding commenced in relation to which the petition is made.

    (2)     If a petition for mercy relates to a criminal proceeding in which presentment was made under section 353 of the Crimes Act 1958 as in force before its repeal, Chapter 7 applies as if a reference to indictment were a reference to presentment.

        12     Witnesses

    (1)     Part 8.2 applies to a hearing in a criminal proceeding if the hearing commences on or after the commencement day.

    (2)     Sections 37A, 37B, 37C, 37CAA, 37CA, 37D and 37E and Division 3AA of Part II of the Evidence Act 1958 as in force immediately before the commencement day continue to apply to a hearing in a criminal proceeding if the hearing commenced before the commencement day and—

        (a)     continued on or after that day; or

        (b)     was adjourned until that day or a day after that day.

    (3)     If an application for leave under Rule (2) in section 37A(1) of the Evidence Act 1958 has been given to the DPP but not determined before the commencement day, on and from the commencement day the application is taken to have been filed and served under section 344 of this Act.

    (4)     If a transcript of a recording of the evidence-in-chief of a witness for the prosecution has been served under section 37B(3)(a) of the Evidence Act 1958 before the commencement day, on and from the commencement day the transcript is taken to have been served under section 368 of this Act.

    (5)     If a special hearing is held under section 41G of the Evidence Act 1958 before the commencement day and the evidence is presented at trial on or after that day, on and from the commencement day the special hearing is taken to have been conducted under Division 6 of Part 8.2 of this Act.

    (6)     If, before the commencement day—

        (a)     an accused has been committed for trial in respect of a charge for an offence under Subdivision (8EAA) of Division 1 of Part I of the Crimes Act 1958 ; or

        (b)     an accused has been presented for trial on such a charge without the holding of a committal proceeding—

section 371 of this Act does not apply to the holding of a special hearing in relation to the charge on or after the commencement day.

        13     Costs

    (1)     On and from the commencement day, Part 8.4 applies to a proceeding to which this Act applies.

    (2)     For the purposes of subclause (1), if a proceeding was commenced but not determined before the commencement day, the whole of the proceeding is taken to be a proceeding to which this Act applies.

        14     Power to amend when there is a defect or error

On and from the commencement day, section 412 applies to any summons, warrant, plea, judgment or order, irrespective of when the summons, warrant, plea, judgment or order was issued or made.

        15     Transfer of charge to court with jurisdiction

        On and from the commencement day, section 413 applies to a charge before a court, irrespective of when the charge was filed.

        16     Perjury

    (1)     Section 414 applies to an offence alleged to have been committed on or after the commencement day.

    (2)     On and from the commencement day, section 415 applies to a direction that a person be tried for perjury, irrespective of when the alleged perjury was committed.

        17     Transitional regulations

The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.

Sch. 5 inserted by No. 43/2017 s. 64(4).



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