Victorian Numbered Acts

CRIMINAL PROCEDURE ACT 2009 (NO. 7 OF 2009) - NOTES

No. 7 of 2009

__________________

Victoria

Criminal Procedure Act 2009^[†]

No. 7 of 2009

[Assented to 10 March 2009]

^[†]     Minister's second reading speech—

    Legislative Assembly: 4 December 2008

    Legislative Council: 5 February 2009

    The long title for the Bill for this Act was "A Bill for an Act to provide for procedures for the initiation and conduct of criminal proceedings and appeals in criminal proceedings, to amend the Crimes Act 1958, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, the Children, Youth and Families Act 2005, the Sentencing Act 1991 and the Appeal Costs Act 1998 and to repeal the Crimes (Criminal Trials) Act 1999 and for other purposes."

        Constitution Act 1975:

    Section 85(5) statement:

    Legislative Assembly: 4 December 2008

    Legislative Council: 5 February 2009

    Absolute majorities:

    Legislative Assembly: 5 February 2009

    Legislative Council: 26 February 2009

INDEX

Subject	Section
Accused
appearance at hearings	55, 100, 174, 328–330
application for adjournment	20
application for disclosure order	46
court fees not payable by	364
definition	3
notice of alibi evidence	51, 190
participation in diversion programs	59
refusal to enter plea	64
request for material not provided by informant	43
return to youth justice centre	333
transfer between place of detention and court	332
See also Committal proceedings
Act
amendments to other Acts	369–383
amendments to this Act	384
commencement	2
purposes	1
references to Parts	4
repeal of Chapter 9	385
repeal of Crimes (Criminal Trials) Act 1999	368
Adjournment
committal hearings	134
committal mention hearings	121
committal proceedings	141
for appellant's failure to appear	267
for determination of appeal against interlocutory decision	299
for determination of questions of law	303
for investigation of alibi	51, 190
for legal representation of accused	33, 197
for respondent's failure to appear	268
general power to adjourn	331
on absence of accused	25, 80, 87
on application of accused	20, 33
on non-appearance of informant	79
to undertake diversion program	59
Alibi evidence See Evidence
Appeal Costs Act 1998	352
Appeals
accused required to appear	329, 330
appeal period (def.)	3
appellant (def.)	3
by Victoria Legal Aid	197
definition	3
extension of time for tiling, serving notice	313
Subject	Section
from Magistrates' Court to County Court
abandonment of	266
against aggregate sentence	270
appellant's failure to appear	267
authorised under other Acts	271
bail pending	265
by convicted person against conviction, sentence	254–256
by DPP against sentence in public interest	257–259, 268
by DPP for failure to fulfil undertaking	260–262
late notice of appeal	263
notice of appeal for 2 or more sentences	269
operates as stay of sentence	264
respondent's failure to appear	268
from Magistrates' Court to Supreme Court on questions of law	272, 273
to Court of Appeal
abandonment	314
against conviction	274–277
against interlocutory decisions	3, 295–301
against sentence of imprisonment imposed on appeal	283–286
bail following order for new trial, remitted matters	323
bail for prisoners pending	310
by DPP against failure to fulfil undertaking	291–294
by DPP against inadequate sentence	287–290
by offender against sentence	278–282
effect of new evidence on sentence	321
evidence of competent witnesses	319
exercise of powers by single Judge	315
imposition of sentence	321, 322
issue of warrants	324
orders for examination of compellable witnesses	318
orders for production of documents, exhibits	317
petitions for mercy	327
reference of question to special commissioner	320
referral of point of law by DPP	308
reservation of questions of law for	302–307
review of decision of interlocutory judge	296
safe custody of property	311, 312
sentence not stayed during appeal period	309
setting aside, variation of ancillary orders	325
stay of certain orders	311, 312
trial judge to provide reports on cases	316
See also Costs
Subject	Section
Arrest warrants
accompanied by charge sheet, notice	13
courts' power to amend defect, error	360
issue
by registrar of Magistrates' Court	12
compelling attendance of witness	151
for appearance of accused on indictment	174, 176
for failure to appear	25, 80, 134, 268, 330
in accordance with Magistrates' Court Act 1989	359
on election to stand trial	143
required for sentencing	87
Attorney-General
expenses of assessors and special commissioners	326
petitions for mercy	327
Bail
after arrest	359
breach of undertaking	80
extension, grant of on adjournment	20, 121, 331
grant pending trial	144
grant when in detention	333
order for on separate hearing, trial	58, 193
pending appeal	264, 265, 272, 310
pending new trial	323
perjury	362
special conditions	33
Bodies corporate	334
Charge-sheets See Indictable offences; Summary offences
Committal proceedings
adjournment without appearance of parties	121
case direction notices	118–120
commencement	98
committal case conferences	127
committal for trial	144
copies of depositions, exhibits to accused	147
forwarding of documents to DPP by registrar	146
notification of absent corporate accused	148
orders for evidence to be taken after	149–152
transfer of related summary offences	145
committal hearings
absence of accused	135–138
attendance of witnesses	129
courts' powers	128
cross-examination of witnesses	132
disclosure of information relating to witnesses	131
failure of witness to attend	134
giving of evidence	130
postponement	137
sexual offences	133
Subject	Section
committal mention hearings	121, 125, 126, 142
compulsory examination hearings	103–106
copying, inspection of items	122
depositions (def.)	3
determination	141–143
disclosure of previous convictions of witnesses	122
evidence
admissibility of non-oral evidence	139
admissions of accused	140
extension of bail on adjournment	121
filing hearings	101, 102
leave to cross-examine witnesses	120, 124
nature of	155
no cross-examination of certain witnesses in sexual offence cases	123
non-appearance of corporate accused	154
powers of DPP not affected by Chapter 4	156
pre-hearing disclosure of prosecution case
audio or video recordings	113
disclosure of information relating to witnesses	114
hand-up briefs	107–110
inspection of exhibits	115
obligation of disclosure	111
plea briefs	116, 117
statements	112, Sch. 3
purposes	97
registrar (def.)	95
release of property	157
request for by informant	6
special mention hearings	153
time limits for certain sexual offences	99
types of hearings	100
when must be held	96
Conspiracy	195
Costs
on appeal
County Court	354, 355
Court of Appeal	357
from Magistrates' Court to Supreme Court	356
new trial	357
on indictment
County Court, Supreme Court	352, 353
legal practitioners	358
Magistrates' Court	349–351
right to be heard	348
County Court See Appeals; Trials
Court of Appeal See Appeals
Courts
may act on application or on own motion	337
Subject	Section
Criminal records
admissible for sentencing	83, 84, 86
admissible in evidence on accused's absence	77, 83, 84
contents	77, 244
copy to be included in full, preliminary briefs	37, 41, 83, 84
definition	3
previous convictions (def.)	3
proof of previous convictions on finding of guilt	78, 245
service of copy on accused	86, 107
Custody See Legal custody
Definitions	3, 95, 130, 164, 188, 194, 197, 283, 325, 333, 334, 340, Sch. 1
Directions hearings See Pre-trial procedure
Director of Public Prosecutions
definition of DPP	3
powers regarding
appeals against failure to fulfil undertaking	260–262, 291–292
appeals against inadequate sentences	287–289
appeals against sentences of Magistrates' Court	257–259
appeals to Supreme Court on questions of law	272
application for summons compelling attendance	174, 175
commencement of proceeding	7
discontinuance of prosecution	177, 178
evidence after committal	152
filing case direction notices	118–120
filing, serving indictments	159, 160, 163, 171, 173, Sch. 1
investigations of alibi evidence	190
notice of additional evidence	188
notification of committal	148
orders for evidence to be taken after committal	149, 152
pre-trial disclosure	182
referral of points of law to Court of Appeal	308
release of property	157
service of documents on	172
powers not affected by Chapter 4	156
Disclosure of information, material
general duty of prosecution	363
See also Pre-trial procedure; Witnesses
Diversion programs	59
Subject	Section
Evidence
alibi evidence	51, 52, 190, 191
committal hearings, proceedings	127, 130, 139, 140
expert evidence	50
manner of giving	232
not previously disclosed	233
proof of service of documents	347
summary case conferences	54
taken after committal	149–152
Evidence Act 1958	130, 232
Evidence Act 2008	140, 232
Expert evidence See Evidence
Fees	364
Grand jury procedure
abolition of	253
Indictable offences
appeals against interlocutory decisions	295–301
charge-sheets
filing, form	6, Sch. 1
orders for amendment	8
time limits for filing	7
validity	9
definition	3
finding of attempt	76
hearing related, unrelated summary offences	242, 243
listing for filing hearing	10
transfer of proceedings for related offences	145, 242
triable summarily	10, 21, 28–30, Sch. 2
See also Trials
Indictment
amendment	165
application of Chapter 5	158
arrest warrants to appear	174, 176
choice of filing in Supreme Court or County Court	160
copy to be served on accused	171, 173
direct indictments (def.)	3
direct indictment commences proceeding	5, 161
discontinuance of prosecution	177, 178
extra notice for corporate accused	173
filing by DPP or Crown Prosecutor	159, Sch. 1
filing of fresh indictments	164
filing of other indictments	162
multiple accused, charges	170, 193
nomination of address for service by DPP of documents	172
order for change of venue	167
order for separate trials	193, 194
place of hearing	169
release from custody following discontinuance	178
Subject	Section
summons to appear	174, 175
time limits for filing	163
transfer to Magistrates' Court where triable summarily	168
validity	166
Informants
applications for issue of summons, warrant to arrest	12
applications for rehearings	90
applications for summary hearing of indictable offence	30
continuing obligation of disclosure	42
definitions	3, 340
disclosure of information regarding witnesses	48, 114
DPP may bring appeal on behalf of	272
ensure attendance of witnesses	151
extension of return date of summons	19
full briefs	39–41, 47, Sch. 3
grounds for non-disclosure of information	45
nomination of address for service of documents	18
non-appearance in proceedings	79
orders for disclosure against	46
placement of material on database	49
preliminary briefs	35, 38, Sch. 3
request for committal proceedings by	6
requests for material not provided by	43, 44
service of summons	17
statements in preliminary briefs	38, Sch. 3
See also Committal proceedings
Infringements Act 2006	85, 328
Interpreters	335
Judgments
courts' power to amend defect, error	360
Juries
abolition of grand jury procedure	253
address by judge	222
adjournment of trials involving	299, 303
alternative verdicts by	239
arraignment in presence of	217
discharge from delivering verdicts	241
discharge on adjournment	331
discharge on order for separate trials	193
documents to be given to	223
judge's directions to	238
Juries Commissioner to be informed of certain events	248
Jurisdiction
transfer of charge to court with appropriate	361
Legal aid See Victoria Legal Aid
Subject	Section
Legal custody
in detention (def.)	3
release from on discontinuance of prosecution	178
remand
following arrest	359
on adjournment	331
on committal for trial	144
pending trial for perjury	362
responsible person (def.)	3
return to	333
transfer of accused persons between detention and court	332
Legal practitioners
complaints regarding	250
consent to summary hearing of indictable offence	29
definition	3
entry of pleas on behalf of accused	63
private legal practitioner (def.)	197
proof of previous convictions	78
required in sexual offence cases	133
retention of brief for trial	249
See also Costs
Magistrates' Court
appearance in	328–330
appropriate registrar (def.)	3
charge-sheets
filing, form	6, Sch. 1
orders for amendment	8
time limits for filing	7
validity	9
commencement of proceedings in	5, 6, Sch. 1
dismissal of charges	79
indictable offences triable summarily	28–30, Sch. 2
non-appearance of accused	25, 80
procedure prior to summary hearings
accused entitled to copy of charge-sheet, particulars	32
advice to unrepresented accused	33
content of preliminary briefs	37, 38, Sch. 3
contest mention hearings	55
full briefs	39–41
mention hearings	10, 53
notice of alibi evidence	51
notices to appear	21–23
order for change of venue	31
orders for disclosure of information	46
preliminary briefs	35–37
return of property	34
summary case conferences	54
Subject	Section
proceeding (def.)	3
registrar's powers	12, 13
return date (def.)	3
service of notice to appear not to commence proceedings	26
summons
striking out charges	14
time limits for commencement	7
transfer of proceedings to	242, 243
venues for hearing	11
variation of time limits for compliance with requests	44
See also Appeals; Costs; Rehearings; Summary hearings
Magistrates' Court Act 1989	105, 359
Offences
bodies corporate	334
regarding
communication with alibi witnesses	52, 191
non-appearance of corporate accused	252
release of property	157
Orders
courts' power to amend defect, error	360
Original jurisdiction (def.)	3
Perjury	5, 362
Petitions for mercy	327
Pleas See Trials
Police
issue of summons	14
service of notice to appear	21–23
service of preliminary briefs	24
Pre-trial procedure
directions hearings
arraignment of accused	180
conduct	179
court's powers	181
judge need not be trial judge	203
orders
additional powers of court	196
change place of trial	192
legal representation of accused	197
separate trials	193–195
taking evidence from witness prior to trial	198
pre-trial disclosure
alibi evidence	190, 191
continuing obligation of disclosure of prosecution	185
disclosure of information relating to witnesses	186
expert evidence	189
intention to depart at trial from documents	184
Subject	Section
notice of additional evidence	188
notice of pre-trial admissions	182, 183
previous convictions of witnesses	187
response of accused	183
summary of prosecution opening	182, 183
pre-trial orders, decisions
applications for exclusion of evidence	202
disclosure of	200
generally binding on trial judge	204
made without hearing	201
may be applied in new trial	205
power to make	199
prosecution proposes not to lead evidence	206
sentence indication
application for	208
effect of	209
on guilty plea	207
Property
directions for return of	34, 157
safe custody of during appeal period	311, 312
Public interest
appeals by DPP brought in	257, 287
Public officials
definition	3
issue of summons	14
service of notice to appear	21–23
service of preliminary briefs	24
Regulations	367
Rehearings
appeals to be conducted as	256, 259
automatic in certain cases	94
failure of applicant to appear	93
notice of intention to apply	89
orders	92
right to apply	88
service, filing of notice	90, 91
stay of sentence, order	91
Road Safety Act 1986	264
Rules of court	366
Sentences
appeals against	254, 257, 260, 270
definition	3
effect of evidence on appeal	321
imposed in absence of accused	87
imposed on appeal	256, 259, 322
sentence indication	60–61, 207–209
stay of	91, 264
Sentencing Act 1991	87, 270, 311, 328
Subject	Section
Service of documents
general rules	338
last known place of residence, business	344
on companies, registered bodies, incorporated associations, bodies corporate	341
on informants, DPP	340
orders for substituted service	345
ordinary service	342, 343
personal service	339, 343
proof of service	347
who may effect service	346
See also Summons
Sexual offences
committal hearings	133
committal mention hearings	126
committal proceedings	99
contents of hand-up brief regarding	110
cross-examination of certain witnesses prohibited	123
definitions	3, 194
directions hearings	181
extension of time for commencement of trial	247
indictments	163
separate trials	194
time limit for commencement of trials	212, 247
Subpoenas	336
Summary hearings
admissibility of evidence in absence of accused	83, 84
closing addresses	73, 74
criminal records	77, 78, 83, 84, 86
entitlement to respond at close of case
accused	66, 68
legal practitioner	67
evidential burden for exceptions etc.	72
finding of attempt of indictable offences	76
joint hearings	69
multiple charges	56
naming of multiple accused	56
no-case submissions	69
non-appearance of parties	79–82, 85–87
opening addresses	65, 71
order of calling witnesses	70
orders for joint, separate hearings	57, 58
pleas	62–64
proof of criminal record in absence of accused	86
proof of previous convictions	78
re-opening of cases	72
sentence indications	60, 61
sentencing in absence of accused	87
supplementary address	75
Subject	Section
Summary offences
charge-sheets
filing, form	6, Sch. 1
orders for amendment	8
time limits for filing	7
validity	9
hearing and determination	25, 27, 80
listing for mention hearing	10
notices to appear	21–23
related summary offences (def.)	3
time limits for commencement	7
transfer of proceedings	145, 242, 243
Summonses
courts' power to amend defect, error	360
to answer charges
accompanied by charge sheet, notice	13
contents	15
extension of return date	19
issue by registrar of Magistrates' Court	12
issue by police, public officials	14
service	16, 17, 80
to appear on indictment	174, 175
to compel attendance of witnesses	134
Supreme Court
appeals on questions of law	272, 273
limitation of jurisdiction	365
Trials
abolition of grand jury procedure	253
alternative verdicts	239
arraignment	215, 217
attendance of accused at all hearings	246
closing addresses	234–236
commencement	210, 211
comments on departure, failure to comply	237
determination of guilt of alternative offences	240
election of accused after close of case	226–228
evidence	232, 233
extension, abridgment of time by court	247
hearing of related, unrelated summary offences	242, 243, 251
joint trials if no-case submission made	229
judge may enter guilty, not guilty findings	241
judge may preside at later trial	251
judge's directions to jury	238
juries	222, 223, 238, 241
non-appearance of corporate accused	214
opening address by prosecution	224, 225
opening address of accused	231
order of questioning	230
Subject	Section
pleas
acceptance of written	216
of guilty to alternative offence	219
of previous conviction, previous acquittal	220
refusal to make	221
special pleas	218
powers of trial judge	213
response of accused to opening address	225
time limit for commencement	211, 212
transfer of proceedings to Magistrates' Court	242, 243
trial judges (def.)	3
See also Sexual offences
Victoria Legal Aid	3, 197
Warrants See Appeals; Arrest warrants
Witness summonses	151, 336
Witnesses
attendance for examination after committal proceedings	151, 152
attendance at committal hearings	129–132, 134, 138
compulsory examination hearings	106, 113
disclosure of information regarding	48, 114, 131, 186
disclosure of previous convictions	122
evidence
alibi evidence	51, 52, 190, 191
additional	188
expert evidence	50, 189, 232
manner of giving	232
of competent witnesses on appeal	319
taken prior to trial	198
leave to cross-examine	120, 124
no cross-examination in sexual offence cases	123
orders for examination of compellable witnesses	318
previous convictions of	187
recall at committal hearing	138
under 18 years of age	124
Youth justice centres	3, 331, 333