Victorian Numbered Acts Victorian Numbered ActsAfter section 265 of the Criminal Procedure Act 2009 insert —
(1) The appellate court may list any appeal under section 254, or application for leave to appeal under section 254, for a pre-appeal mention hearing.
(2) If a pre-appeal mention hearing is listed, the registrar of the County Court or the Prothonotary, as the case requires, must notify the appellant of the listing time and date.
(1) An appellant or applicant must appear at any pre-appeal mention hearing listed by the appellate court in accordance with section 265A.
(2) At a pre-appeal mention hearing the appellate court may—
(a) order any party to make, file or serve any written or oral material required by the court for the purposes of the appeal or application for leave; and
(b) fix a date for the hearing of the appeal or application for leave; and
(c) make an order under section 265C; and
(d) make any other order or give any direction that the court considers appropriate.
(1) The appellate court may order that copies of the following material are to be provided to the court and to the parties—
(a) the transcript of the evidence given or submissions made in the summary hearing;
(b) a transcript of the evidence given by a witness at the sentencing hearing;
(c) a transcript of any other evidence, including an audio or audiovisual recording of that evidence;
(d) the transcript of the reasons of the Magistrates' Court in the summary hearing.
(2) The registrar of the County Court or the Prothonotary, as the case requires, may also make an order under subsection (1).
(3) An order under subsection (1) may be made in respect of only a specified part of the summary hearing if the appellant or applicant and the respondent agree.
(1) The fact that part of the recording of the evidence given before the Magistrates' Court is unavailable does not prevent the appellate court from receiving the evidence contained in another part of the recording in determining the appeal.
Notes
1 The appellate court is to determine the appeal on the evidence given before the Magistrates' Court in the summary hearing. See sections 256(1)(a)(i) and 256B(1).
2 Section 265E also allows for the appellate court to receive further evidence in certain circumstances.
(2) If the whole of the recording of the evidence that was given before the Magistrates' Court is unavailable, the appellate court may, on an appeal against conviction under section 254, receive evidence that addresses any matter the court considers relevant and necessary to determining the appeal.
Notes
1 Section 253D sets out when a recording is unavailable .
2 Evidence received under this subsection may be considered in an appeal against sentence only in accordance with section 256B(3)(c).
(1) On an appeal against conviction under section 254, the appellate court may receive evidence if the court is satisfied that—
(a) it is in the interests of justice to do so; and
(b) in the case of evidence protected under subsection (3) or (4), the evidence is substantially relevant to a fact in issue in the appeal.
Note
Evidence received under this section may be considered in an appeal against sentence only in accordance with section 256B(3)(c).
(2) In determining whether it is in the interests of justice to receive evidence under this section, the appellate court must have regard to—
(a) the probative value of the evidence; and
(b) the right of the appellant to fully present their appeal; and
(c) if the evidence was not given before the Magistrates' Court in the summary hearing—
(i) whether the evidence was available at the time of the summary hearing; and
(ii) why the evidence was not given in the summary hearing; and
(d) if the evidence was given in that hearing—
(i) whether the recording of the giving of the evidence in that hearing, or any part of that recording, is unavailable; and
Note
If the whole of the recording of the evidence that was given before the Magistrates' Court is unavailable, the appellate court has a separate power to receive evidence. See section 265D(2).
(ii) if the recording is available, whether there is any other reason why the evidence should be given again.
(3) For the purposes of subsection (1)(b), evidence is protected under this subsection if—
(a) the evidence is to be given by a complainant; and
(b) the criminal proceeding relates (wholly or partly) to a charge for—
(i) a sexual offence; or
(ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 ; or
(iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966 .
(4) For the purposes of subsection (1)(b), evidence is protected under this subsection if—
(a) the evidence is to be given by a person who—
(i) was a child at the time the criminal proceeding commenced; or
(ii) had a cognitive impairment at the time the criminal proceeding commenced; and
(b) the criminal proceeding relates (wholly or partly) to a charge for—
(i) a sexual offence; or
(ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 ; or
(iii) an offence against section 17(1) or 19 of the Summary Offences Act 1966 ; or
(iv) an offence which involves an assault on, or injury or a threat of injury to, a person.".