FEDERAL COURT OF AUSTRALIA AMENDMENT (CRIMINAL JURISDICTION) BILL 2008

i Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts

Part 1--Main amendments

Director of Public Prosecutions Act 1983

Federal Court of Australia Act 1976

Judiciary Act 1903

Part 2--Consequential and other amendments

101

Bankruptcy Act 1966

101

Crimes Act 1914

101

Federal Court of Australia Act 1976

104

Judiciary Act 1903

115

Mutual Assistance in Criminal Matters Act 1987

117

Proceeds of Crime Act 2002

118

Transfer o f Prisoners Act 1983

118

Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 No. , 2008 1

A Bill for an Act to make provision for the exercise

of certain criminal jurisdiction by the Federal

Court of Australia, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Federal Court of Australia

Amendment (Criminal Jurisdiction) Act 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 No. ,

2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The 28th day after the day on which this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amend ments Schedule 1

Main amendments Part 1

Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 No. , 2008

Schedule 1

Amendments

Part 1

Main amendments

Director of Public Prosecutions Act 1983

1 After subsection 6(2E)

Insert:

(2F) If a person is committed for trial before a court (the initial court)

for one or more indictable offences against the laws of the

Commonwealth, the Director may institute in another court (the

later court) a prosecution of the person on indictment for any or all

of the offences.

(2G) Subsection (2F) applies even if the Director has instituted a

prosecution (the initial prosecution) before the initial court for any

or all of the offences. However, the Director must discontinue the

initial prosecution in respect of each offence covered by the

prosecution in the later court.

Federal Court of Australia Act 1976

2 After Division 1 of Part III

Insert:

Division 1A--Original jurisdiction (indictable offences)

Subdivision A--Introduction

23AA Background and simplified outline

The following is background to, and a simplified outline of, this

Division:

�

This Division sets out procedures to be followed during

criminal proceedings in the Court relating to certain indictable

offences.

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�

This Division does not confer jurisdiction on the Court in

relation to indictable offences. Other provisions need to have

done this.

�

This Division does not set out all of the procedures to be

followed during these criminal proceedings. It is

supplemented by procedures set out in the Rules of Court, and

also by procedures set out in:

(a) State and Territory laws; and

(b) Rules of Court of State and Territory courts;

as applied by sections 68, 68B and 68C of the Judiciary Act

1903.

�

The procedures set out in this Division include procedures

about the following:

(a) preparing, amending and filing indictments;

(b) pre-trial hearings and disclosure;

(d) pleas and verdicts;

(e) persons committed to the Court for sentencing.

23AB Application of Division

Events causing Division to apply, and meaning of key concepts

(1) This Division applies in relation to a person (the accused) if any of

the following events happen:

(a) either the accused, the prosecutor or both appear before the

Court in accordance with an order committing the accused

for trial on indictment, or sentencing, before the Court for an

indictable offence;

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(b) the prosecutor files in the Court an indictment against the

accused for an indictable offence (whether or not the accused

has been examined and committed for trial on indictment);

which to file in the Court an indictment of the kind covered

by paragraph (b) against the accused;

(d) the accused applies to the Court in relation to the

prosecutor's failure to file an indictment against the accused

in response to an order committing the accused for trial on

indictment before the Court for an indictable offence;

(e) either the accused, the prosecutor or both appear before the

Court in accordance with an order of a State or Territory

court granting the accused bail in relation to an indictable

offence.

Indictable primary proceedings

(2) This Division applies in relation to the following proceedings (the

indictable primary proceedings):

(a) proceedings in the Court that are commenced by, or that

include, an event mentioned in subsection (1);

(b) proceedings in the Court for sentencing the accused if the

Court, in proceedings covered by paragraph (a), has accepted

a plea of guilty, or a verdict of guilty, for a count in the

indictment in relation to the accused;

covered by paragraph (a) or (b).

Parties to the proceedings

(3) In indictable primary proceedings, the accused and the prosecutor

are parties to the proceedings.

Note:

More than one accused may be a party to the proceedings if they are

prosecuted on a single indictment (see sections 23BB and 23BD).

Offences to which this Division applies

(4) A reference in this Division to an offence is a reference to any of

the following:

(a) an offence against either of the following sections of the

Trade Practices Act 1974:

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(i) section 44ZZRF (making a contract etc. containing a

cartel provision);

(ii) section 44ZZRG (giving effect to a cartel provision);

(b) if jurisdiction is conferred on the Court under subsection

32(4) in respect of a matter--an indictable offence to which

the matter relates.

Note:

Paragraph (b) covers any Commonwealth indictable offence

associated with a particular prosecution of a cartel offence mentioned

in paragraph (a).

Subdivision B--Matters relating to indictments

23BA Indictme nt may include alternate counts

The prosecutor may include alternate counts in an indictment.

23BB Single count can cover multiple accused

The prosecutor may, in an indictment, include a single count

against more than one accused for the same indictable offence if

the count is founded on alleged facts that are the same or

substantially the same for each accused.

23BC Separating one or more accused from a single count

(1) The Court may order one or more accused included in a single

count in an indictment to be tried separately:

(a) in the same proceedings on a different count in the same

indictment; or

(b) in separate proceedings on one or more further indictments;

if the Court is satisfied that it is expedient to do so in the interests

of justice.

(2) If the Court makes an order under subsection (1), the Court may

make such other orders as it thinks appropriate in the

circumstances.

(3) The Court may make an order under subsection (1) before trial or

during the trial.

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23BD Single indictme nt can include multiple counts

Single accused

(1) The prosecutor may, in a single indictment, include counts against

the accused for more than one indictable offence if those counts:

(a) are founded on alleged facts that are the same or substantially

the same; or

(b) are, or form part of, a series of alleged indictable offences:

(i) of the same or a similar character; or

(ii) committed in the pursuit of a single purpose.

Multiple accused

(2) The prosecutor may, in a single indictment, include counts against

more than one accused for the same or different indictable offences

if those counts:

(a) are founded on alleged facts that are the same or substantially

the same; or

(b) are, or form part of, a series of alleged indictable offences:

(i) of the same or a similar character; or

(ii) committed in the pursuit of a single purpose.

23BE Separating one or more counts from a single indictme nt

(1) The Court may order one or more counts in an indictment to be

tried separately:

(a) in separate proceedings; and

(b) on one or more further indictments;

if the Court is satisfied that it is expedient to do so in the interests

of justice.

(2) If the Court makes an order under subsection (1), the Court may

make such other orders as it thinks appropriate in the

circumstances.

(3) The Court may make an order under subsection (1) before trial or

during the trial.

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23BF Time within which indictments must be filed following

committal orde r

Scope

(1) This section applies if the accused is committed for trial before the

Court for an indictable offence.

General rule--indictments must be filed within 3 months

(2) An indictment may only include a count that covers the offence if

the indictment is filed in the Court as soon as practicable, and in

any event within 3 months, after the committal order is made.

Extension--if accused/count separated from earlier indictment

(3) Subsection (2) does not prevent the inclusion of a count in an

indictment if:

(a) the count contains the same offence, in relation to the

accused, as an earlier count from which the accused was

separated by an order under subsection 23BC(1); and

(b) the indictment is filed within 3 months after:

(i) if the Court accepts a plea of guilty, or a verdict of

guilty, in relation to the earlier count and any of the

other accused remaining covered by that count--the end

of sentencing proceedings relating to that count; or

(ii) otherwise--the end of the trial of those other accused

remaining covered by the earlier count.

(4) Subsection (2) does not prevent the inclusion of a count in an

indictment if:

(a) the count is the same as another count relating to the accused

that was separated from an earlier indictment by an order

under subsection 23BE(1); and

(b) the first-mentioned indictment is filed within 3 months after:

(i) if the Court accepts a plea of guilty, or a verdict of

guilty, in relation to any of the counts remaining in the

earlier indictment--the end of sentencing proceedings

relating to those counts; or

(ii) otherwise--the end of the trial relating to the counts

remaining in the earlier indictment.

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(5) The Court may order that subsection (3) or (4) does not apply in

relation to an indictment, and may make such other orders about

the time within which the indictment must be filed as the Court

thinks appropriate in the circumstances.

Extension--by court order

(6) On application by the prosecutor, the Court may, by order, extend

(or further extend) the time by which, under subsection (2), (3), (4)

or (5), an indictment is required to be filed.

(7) The Court may exercise its power under subsection (6) only if the

application for the extension (or further extension) is made before

the end of the period to be extended (or further extended).

No effect on filing indictments in other courts

(8) This section does not prevent an indictment of the accused for the

indictable offence being filed in another court that has jurisdiction

in relation to the offence.

23BG Consequences of not filing indictme nt within time

(1) If the accused is committed for trial before the Court for an

indictable offence and an indictment is not filed in the Court within

the time required by section 23BF, the Court may:

(a) discharge the accused; and

(b) make such other orders as it thinks appropriate in the

circumstances.

(2) Subsection (1) has effect subject to subsections (3) and (4).

(3) The Court must not:

(a) proceed with the trial as if an indictment had been filed in the

Court; or

(b) acquit the accused of the offence.

(4) Subsection (1) does not apply if an indictment of the accused for

the indictable offence is filed in another court that has jurisdiction

in relation to the offence.

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23BH Amending indictme nts

Amendments before a trial

(1) The prosecutor may, in accordance with the Rules of Court, amend

(or replace) an indictment in relation to an accused at any time

during the proceedings before the start of a trial of the accused on

the indictment.

Note:

A trial starts when the accused is arraigned before a jury (see

subsection 23FA(2)).

Amendments during a trial

(2) During a trial of the accused on an indictment, the prosecutor may

amend (or replace) the indictment in relation to the accused only

with the leave of the Court.

Consequences of amending indictments

(3) If the prosecutor replaces an indictment under subsection (1) or (2),

the Court must dismiss the replaced indictment.

(4) If an indictment is amended or replaced, the Court may make such

orders as it thinks appropriate in the circumstances.

Note:

If, for example, an indictment was amended to remove a count against

the accused, the Court could discharge the accused in relation to that

count.

(5) This section does not affect the amendment of an indictment under

other provisions of this Division.

Subdivision C--Pre-trial matters (hearings, disclosure and

quashing indictments)

23CA Pre-trial hearings

(1) As soon as practicable after an indictment is filed in the Court, the

Court must:

(a) order the prosecutor and the accused to attend a pre-trial

hearing before the Court; and

(b) at the hearing, direct the accused to enter a plea to each count

in the indictment that relates to the accused.

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(2) Before a trial on the indictment starts, the Court may order the

prosecutor and the accused to attend one or more further pre-trial

hearings before the Court.

Note:

The Court may also, or alternatively, order pre-trial disclosure (see

section 23CD).

23CB Court may make orders during pre-trial hearings

(1) During a pre-trial hearing, the Court may make orders and

determinations for the efficient management and disposal of a trial

on the indictment.

(2) Without limiting subsection (1), the Court may do any or all of the

following under that subsection:

(a) make orders, or give leave, under Subdivision B (matters

relating to indictments);

(b) hear and determine an objection to the indictment;

(d) determine the admissibility of evidence;

(e) hear and determine a submission that the matter should not

proceed to trial for a reason not mentioned in a preceding

paragraph of this subsection;

(f) rule on a matter of law that may arise during a trial on the

indictment.

Note 1:

The Court could, for example, rule whether business records are

admissible.

Note 2:

For the purposes of paragraph (2)(b), the bases on which the accused

may object to an indictment are set out in subsection 23CP(1).

(3) If a trial on the indictment starts, an order or determination under

subsection (1) applies for the trial unless the Court is satisfied that

to follow the order or determination would be contrary to the

interests of justice.

23CC Matters that must be raised during pre-trial hearings

If a matter covered by paragraph 23CB(2)(b) or (e) was not raised

during the pre-trial hearings for an indictment, the matter cannot be

raised during the trial unless the Court is satisfied that to not do so

would be contrary to the interests of justice.

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23CD Court may orde r pre-trial, and ongoing, disclosure

After the indictment is filed in the Court and before a trial on the

indictment starts, the Court may order:

(a) the prosecutor to give the accused notice of the case for the

prosecution in accordance with section 23CE; and

(b) the accused, after having been given notice of the case for the

prosecution, to give the prosecutor notice of the accused's

response in accordance with section 23CF; and

accused's response, to give the accused notice of the

prosecution's response to the accused's response in

accordance with section 23CG; and

(d) the prosecutor and the accused to make ongoing disclosures

in accordance with section 23CH until, for each count in the

indictment relating to the accused, the accused is either:

(i) convicted of the offence covered by the count; or

(ii) discharged in relation to the count.

The order may specify the time within which each disclosure is to

be made.

23CE Disclosure of case for the prosecution

The notice of the prosecution's case must include the following:

(a) an outline of the prosecution's case that sets out the facts,

matters and circumstances on which the prosecution's case is

based;

(b) for each witness the prosecutor proposes to call at the trial:

(i) a copy of a signed statement by the witness that sets out

the evidence the witness is to give at the trial; or

(ii) a written summary of the evidence the witness is to give

at the trial;

(i) the prosecutor does not propose to call at the trial; but

(ii) who has signed a statement that sets out the evidence

the witness could give at the trial;

a copy of the signed statement;

(d) copies of any documents the prosecutor proposes to tender at

the trial;

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(e) copies of, or an invitation to inspect, any other exhibits the

prosecutor proposes to tender at the trial;

(f) a copy of any report, relevant to the trial, that has been

prepared by an expert witness whom the prosecutor proposes

to call at the trial;

(g) a copy or details of any information in the prosecutor's

possession that might adversely affect the reliability or

credibility of a prosecution witness;

(h) a copy or details of any information, document or other thing

in the prosecutor's possession that the prosecutor reasonably

believes contains evidence that may be relevant to the

accused's case;

(i) if the prosecutor reasonably believes information in the

prosecutor's possession suggests the existence of evidence

that may be relevant to the accused's case--a copy or details

of so much of that information as is necessary to suggest that

existence;

(j) a list identifying:

(i) any information, document or other thing not in the

prosecutor's possession that the prosecutor reasonably

believes contains evidence that may be relevant to the

accused's case; and

(ii) for each item of information, and each document or

other thing, a place where the prosecutor reasonably

believes the item, document or thing to be;

(k) a copy or details of any information, document or other thing

in the prosecutor's possession that is adverse to the accused's

credit or credibility;

and may include other matters.

Note:

Information and things do not need to be disclosed more than once

(see section 23CK).

23CF Accused's response

The notice of the accused's response to the notice of the

prosecution's case must include the following:

(a) a statement setting out, for each fact set out in the notice of

the prosecution's case:

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(i) that the accused agrees that the fact is to be an agreed

fact for the purposes of section 191 of the Evidence Act

1995 at the trial; or

(ii) that the accused takes issue with the fact;

and, if the accused takes issue with the fact, the basis for

taking issue;

(b) a statement setting out, for each matter and circumstance set

out in the notice of the prosecution's case:

(i) whether the accused takes issue with the matter or

circumstance; and

(ii) if the accused does take issue--the basis for taking

issue;

subparagraph 23CE(b)(i) can be tendered at the trial without

the person being called as a witness at the trial;

(d) notice as to whether the accused requires the prosecutor to

call witnesses to corroborate any specified surveillance

evidence that was notified to the accused by the prosecutor

under section 23CE;

(e) notice as to whether the accused requires the prosecutor to

prove:

(i) the continuity of handling of any specified exhibits; or

(ii) the accuracy of any specified exhibits that are

transcripts, summaries or charts;

that were notified to the accused by the prosecutor under

section 23CE;

(f) in relation to each report given under paragraph 23CE(f),

notice as to:

(i) whether the accused accepts or contests the opinions

expressed in the report; and

(ii) whether the report can be tendered at trial without the

expert being called as a witness at the trial;

(g) any consent that the accused gives under section 190 of the

Evidence Act 1995 in relation to:

(i) any evidence notified under section 23CE as evidence

proposed to be adduced by the prosecutor; or

(ii) any other evidence relating to the trial;

(h) any consent that the accused gives under section 184 of the

Evidence Act 1995 in relation to the trial;

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(i) if at the trial the accused proposes to adduce supporting

evidence of an alibi--notice of particulars, prepared in

accordance with the Rules of Court, of that alibi;

(j) if at the trial the accused proposes to adduce supporting

evidence that the accused was suffering from a mental

impairment (within the meaning of section 7.3 of the

Criminal Code)--notice of particulars, prepared in

accordance with the Rules of Court, of that impairment;

(k) a copy of any report, relevant to the trial, that has been

prepared by an expert witness whom the accused proposes to

call at the trial;

and may include other matters.

23CG Prosecutor's response to accused's response

The notice of the prosecution's response to matters contained in the

accused's response must include the following:

(a) notice as to whether the prosecutor requires the accused to

prove:

(i) the continuity of handling of any specified exhibits; or

(ii) the accuracy of any specified exhibits that are

transcripts, summaries or charts;

that were notified to the prosecutor by the accused under

section 23CF;

(b) in relation to each report given under paragraph 23CF(k),

notice as to:

(i) whether the prosecutor accepts or contests the opinions

expressed in the report; and

(ii) whether the report can be tendered at trial without the

expert being called as a witness at the trial;

Evidence Act 1995 in relation to:

(i) any evidence notified under section 23CF as evidence

proposed to be adduced by the accused; or

(ii) any other evidence relating to the trial;

(d) notice of any fact that the prosecutor agrees to as an agreed

fact for the purposes of section 191 of the Evidence Act 1995

at the trial;

(e) a copy or details of any additional information, document or

other thing in the prosecutor's possession that the prosecutor

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reasonably believes contains evidence that may be relevant to

the accused's case;

(f) if the prosecutor reasonably believes additional information

in the prosecutor's possession suggests the existence of

evidence that may be relevant to the accused's case--a copy

or details of so much of that information as is necessary to

suggest that existence;

(g) a list identifying:

(i) any additional information, document or other thing not

in the prosecutor's possession that the prosecutor

reasonably believes contains evidence that may be

relevant to the accused's case; and

(ii) for each item of information, and each document or

other thing, a place where the prosecutor reasonably

believes the item, document or thing to be;

and may include other matters.

Note:

Information and things do not need to be disclosed more than once

(see section 23CK).

23CH Ongoing disclosure obligations

(1) If the Court makes an order under section 23CD requiring ongoing

disclosure in accordance with this section:

(a) the accused's ongoing disclosure obligations are set out in

subsections (2) and (3); and

(b) the prosecutor's ongoing disclosure obligations are set out in

subsections (4) and (5).

Accused's ongoing disclosure obligations

(2) If, contrary (or in addition) to the accused's response under

section 23CF, the accused later:

(a) no longer takes issue with, or no longer contests, something

set out in the notice of the prosecution's case; or

(b) takes issue with something set out in the notice of the

prosecution's case on an alternate or additional basis to the

basis set out in the accused's response; or

ensure that something is done; or

(d) agrees or accepts, or consents to, something set out in the

notice of the prosecution's case; or

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(e) obtains a report, relevant to the trial, that has been prepared

by an expert witness whom the accused proposes to call at

the trial; or

(f) proposes to adduce supporting evidence at the trial of an alibi

or of a mental impairment (within the meaning of section 7.3

of the Criminal Code);

the accused must notify this to the prosecutor. When giving notice

of a report by an expert witness, the accused must include a copy

of the report.

Note:

The order may specify the time within which the accused must notify

this to the prosecutor (see section 23CD).

(3) When giving notice of an alibi, or of a mental impairment, the

accused must include particulars prepared in accordance with the

Rules of Court of that alibi or impairment.

Prosecution's ongoing disclosure obligations

(4) If, contrary (or in addition) to the prosecution's response under

section 23CG, the prosecutor later:

(a) no longer contests something set out in the accused's

response; or

(b) no longer requires the accused to do something, or to ensure

that something is done; or

accused's response; or

(d) obtains a report, relevant to the trial, that has been prepared

by an expert witness whom the prosecution proposes to call

at the trial;

the prosecutor must notify this to the accused as soon as

practicable. When giving notice of a report by an expert witness,

the prosecutor must include a copy of the report.

Note:

The order may specify the time within which the prosecutor must

notify this to the accused (see section 23CD).

(5) After giving the prosecution's response under section 23CG, the

prosecutor must give the accused:

(a) a copy or details of any additional information, document or

other thing in the prosecutor's possession that the prosecutor

reasonably believes contains evidence that may be relevant to

the accused's case; and

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(b) if the prosecutor reasonably believes information in the

prosecutor's possession suggests the existence of evidence

that may be relevant to the accused's case--a copy or details

of so much of that information as is necessary to suggest that

existence; and

document or other thing not in the prosecutor's possession

contains evidence that may be relevant to the accused's

case--a statement to that effect identifying:

(i) the information, document or thing; and

(ii) a place where the prosecutor reasonably believes the

information, document or thing to be.

Note 1:

Information and things do not need to be disclosed more than once

(see section 23CK).

Note 2:

The order may specify the time within which the prosecutor must give

these things to the accused (see section 23CD).

23CI Copies of things need not be provided if impracticable etc.

(1) A copy or details of any information, document or other thing is

not required to be given under an order under section 23CD if it is

unlawful, impossible or impracticable to provide the copy or

details.

(2) However, the party to the proceedings required (but for

subsection (1)) to give the copy or details must:

(a) notify the other party of a reasonable time and place at which

the information, document or other thing may be inspected;

and

(b) allow the other party a reasonable opportunity to inspect the

information, document or other thing.

23CJ Pe rsonal details need not be provided

(1) Nothing in this Subdivision requires the prosecutor to disclose the

address or telephone number of any witness proposed to be called

by the prosecutor, or of any other living person, unless:

(a) the address or telephone number is a materially relevant part

of the evidence; or

(b) on application by the accused--the Court makes an order

directing the disclosure.

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Note:

The Court may make orders to protect witnesses, information,

documents and other things (see section 23HC).

(2) The Court must not make an order under paragraph (1)(b) directing

the disclosure of information unless it is satisfied that:

(a) the accused needs the information to prepare properly for the

hearing of the evidence for the prosecution; and

(b) if the disclosure is likely to present a risk to a person's safety

or welfare--the accused's need for the information

outweighs this risk.

(3) This section does not prevent the disclosure of an address if:

(a) the disclosure does not identify it as a particular person's

address; and

(b) it could not reasonably be inferred from the matters disclosed

that it is a particular person's address.

(4) If:

(a) a statement is to be given to the accused; and

(b) the statement contains an address or telephone number that

must not be disclosed;

the address or telephone number may, without reference to the

person who made the statement, be deleted from the statement, or

rendered illegible, before the statement is given to the accused.

23CK Things need not be disclosed to a party more than once

A party to indictable primary proceedings (the current

proceedings) need not disclose anything under this Subdivision to

another party if the first-mentioned party has already disclosed it to

the other party:

(a) during the current proceedings; or

(b) during committal or other proceedings relating to an offence

founded on alleged facts that are the same or substantially the

same as those for an offence being prosecuted in the current

proceedings.

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23CL Effect on legal professional privilege and othe r privileges and

duties etc.

(1) A party is not excused from disclosing material under an order

under section 23CD on the basis that to do so would involve

disclosing material that is protected against disclosure by:

(a) legal professional privilege claimed by the party in relation to

the material; or

(b) if the Court makes an order under this paragraph in relation

to a specified immunity, privilege or restriction claimed by

the party in relation to the material--the specified immunity,

privilege or restriction.

Paragraph (b) has effect subject to subsection (3).

Note:

The Court cannot make an order under paragraph (b) in relation to the

National Security Information (Criminal and Civil Proceedings) Act

2004 or public interest immunity (see subsection (3)).

(2) This Subdivision does not otherwise abrogate or affect the law

relating to:

(a) legal professional privilege; or

(b) any immunity, privilege or restriction that applies to the

disclosure of any information, document or other thing.

Note:

This means, for example, that legal professional privilege will apply

for the trial.

(3) This Subdivision does not abrogate or affect:

(a) the operation of the National Security Information (Criminal

and Civil Proceedings) Act 2004; or

(b) the law relating to public interest immunity.

(4) This Subdivision does not abrogate or affect the law relating to any

duty of a person investigating the accused to ensure that

information and other things are disclosed to the prosecutor or the

accused.

(5) In this section:

legal professional privilege includes privilege (however described)

under Division 1 of Part 3.10 of the Evidence Act 1995, or a similar

law of a State or Territory.

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23CM Consequences of disclosure require ments

(1) The Court may make such other orders as it thinks appropriate in

the circumstances in relation to a party's compliance, or failure to

comply, with an order under section 23CD.

Note:

A failure by the accused to comply with these disclosure requirements

can also be taken into account during sentencing if the accused is later

convicted of the offence (see paragraph 16A(2)(fa) of the Crimes Act

1914).

(2) Without limiting subsection (1), the Court may do any or all of the

following under that subsection:

(a) order that particular evidence that was not disclosed to

another party in accordance with the order under

section 23CD not be admitted in evidence in the proceedings;

(b) order that the party not be allowed to call an expert witness at

the trial if the party failed to give the other party a copy of a

report by the expert in accordance with the order under

section 23CD;

document as evidence of its contents if:

(i) the document was disclosed to the other party; and

(ii) the other party did not disclose an intention to contest or

require proof of the document's contents as required by

the order under section 23CD;

(d) order that the accused not be able, during the trial, to take

issue with a fact, matter or circumstance if:

(i) the fact, matter or circumstance was set out in the notice

of the prosecution's case; and

(ii) the notice of the accused's response did not both take

issue with the fact, matter or circumstance, and set out a

basis for taking issue;

(e) grant an adjournment to a party (the first party) if the other

party seeks to adduce evidence in the proceedings that:

(i) the other party failed to disclose in accordance with the

order under section 23CD; and

(ii) would prejudice the first party's case.

Note:

The Court may think it inappropriate to do any of the above things if,

for example, a party's failure to comply with an order under

section 23CD was due to an honest mistake.

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23CN Restricting further disclosure of disclosed mate rial

(1) This section restricts what a person (the entrusted person) may do

with any information, document or other thing (the protected

material) the person obtains as the result of a disclosure in

accordance with an order under section 23CD.

(2) The entrusted person commits an offence if the person discloses

any protected material to another person.

Penalty: Imprisonment for 2 years.

(3) Each of the following is an exception to the prohibition in

subsection (2):

(a) the disclosure is for the purposes of the proceedings for

which the order under section 23CD was made;

(b) the Court has given leave for the disclosure;

with, the performance of the duties of the entrusted person's

official employment;

(d) the disclosure is of protected material that has already been

lawfully disclosed in proceedings in open court.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) The entrusted person is not to be required:

(a) to produce to a court or tribunal any document that is or

contains protected material; or

(b) to disclose protected material to a court or tribunal.

(5) In this section:

disclose means divulge or communicate.

official employment means:

(a) service as:

(i) the Director of Public Prosecutions; or

(ii) a member of the staff of the Office of the Director of

Public Prosecutions; or

(iii) a Special Prosecutor under the Special Prosecutors Act

1982; or

(iv) the Attorney-General; or

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(v) a person appointed by the Governor-General in relation

to the prosecution for which the order under

section 23CD was made; or

(b) representing, or otherwise performing services for, a person

referred to in paragraph (a); or

Director of Public Prosecutions.

23CO Restricting admissibility of disclosed material as evidence in

other proceedings

(1) The Court may order that some or all of the material disclosed in

accordance with an order under section 23CD is not admissible:

(a) in any other proceedings before the Court; or

(b) in any other court (whether exercising federal jurisdiction or

not); or

Commonwealth or of a State or Territory, or by the consent

of the parties, to hear evidence.

(2) An order made under subsection (1) ceases to have effect if, during

the indictable primary proceedings, the material is lawfully

disclosed in open court.

(3) The Court may, on the application of an interested person (whether

during the indictable primary proceedings or otherwise), order that

an order made under subsection (1) be:

(a) set aside; or

(b) varied;

if the Court is satisfied it is in the interests of justice to do so.

(4) The Court may, before making an order under subsection (3),

direct that notice of the application be given to such persons as it

thinks fit or be published in such manner as it thinks fit, or both.

23CP Objecting to indictme nts

(1) The accused may object to a count in the indictment on the basis

of:

(a) a formal defect apparent on the face of the indictment; or

(b) the Court lacking jurisdiction; or

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(d) a pardon.

Note:

The objection must be raised during a pre-trial hearing unless the

Court allows otherwise (see section 23CC).

(2) If the Court upholds the objection, the Court may:

(a) in every case:

(i) make an order quashing the count in relation to the

accused; and

(ii) if after quashing the count, no counts remain in the

indictment in relation to the accused or any other

accused--make an order quashing the indictment; and

(iii) discharge the accused in relation to the count; and

(iv) make such other orders as it thinks appropriate in the

circumstances; or

(b) if the objection is covered by paragraph (1)(a)--make an

order for the amendment of the indictment to remove the

defect instead of quashing the count.

23CQ Examining witnesses after committal in absence of the jury

(1) After the indictment is filed in the Court, the Court may direct a

person to appear for examination before the Court or a Judge, the

Registrar, a Deputy Registrar, a District Registrar or a Deputy

District Registrar of the Court if:

(a) a party applies for the direction; and

(b) the prosecutor has disclosed that the prosecutor proposes to

call the person as a witness at a trial on the indictment; and

proceedings in which the accused was committed for trial--

the person was not examined in those proceedings; and

(d) the applicant satisfies the Court that it would be contrary to

the interests of justice to proceed to trial without the person

being examined.

Note:

A person examined under this section will be examined in the absence

of a jury.

(2) The Court may make such orders as it thinks appropriate in the

circumstances to give effect to a direction under subsection (1).

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(3) A direction under subsection (1) may permit either or both of the

parties to examine the person named in the direction.

(4) For the purposes of paragraph (1)(d), the absence of committal

proceedings does not, of itself, mean it will be contrary to the

interests of justice to proceed to trial without the person being

examined.

Subdivision D--Pre-trial matters (empanelling the jury)

23DA Simplified outline

The following is a simplified outline of this Subdivision:

�

There are rules about the number of jurors on a jury.

�

Before convening jury panels for trials in a State or Territory,

the Sheriff needs to determine one or more jury districts for

the State or Territory. A jury roll for each jury district can then

be obtained.

�

Not everyone on a jury roll is qualified to serve as a juror.

�

For each trial, the Sheriff convenes a jury panel by:

(a) selecting the jury district and preparing a jury list

from the corresponding jury roll; and

(b) randomly selecting some of the persons on the jury

list and summonsing them to attend court for jury

service.

�

The jury is then selected from those persons on the jury panel.

�

A person on the jury panel will not become a juror if they are

excused from jury service, or if their inclusion on the jury is

successfully challenged. A potential juror may also be asked

to temporarily stand aside during the selection of the jury.

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23DB Application to criminal proceedings

This Subdivision applies in relation to juries for indictable primary

proceedings.

23DC Number of jurors on jury

(1) The number of jurors on a jury is:

(a) 12; or

(b) such larger number (not exceeding 15) as the Court orders.

(2) An order under paragraph (1)(b) must be made before the jury is

empanelled for the proceedings.

23DD Continuation of the trial with a reduced jury

(1) Subject to subsection (3), if a juror is discharged during a trial, the

Court may direct that the trial continue with the remaining jurors.

Note:

For when a juror is discharged, see Subdivision E.

(2) If the Court gives a direction under subsection (1) after the jury has

retired to consider its verdict on a count in the indictment, the

verdict of the remaining jurors has the same effect as if it were the

verdict of all the persons who were jurors when the jury retired to

consider its verdict.

Note:

There must not be more than 12 jurors when the jury retires to

consider its verdict (see section 23DE).

(3) A trial must not continue with fewer than 10 jurors.

23DE Ballot to re duce additional jurors

If, before the jury is asked to retire to consider its verdict on a

count in the indictment, there are more than 12 jurors, a ballot must

be conducted to select at random 11 of the jurors who, together

with the jury foreperson, will consider the verdict.

Note 1:

This means the jury foreperson is excluded from the ballot. For the

appointment of the jury foreperson, see section 23EA).

Note 2:

The jurors not selected in the ballot are discharged at the end of the

conduct of the ballot (see section 23EJ).

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23DF Jury districts (establishme nt and boundaries)

(1) The Sheriff may, in writing, determine that the electoral Divisions

specified in the determination constitute a jury district for a

particular State or Territory.

(2) There may be more than one jury district for a State or Territory.

(3) A determination made under subsection (1) is not a legislative

instrument.

23DG Jury roll for a jury district

(1) Information given to the Registrar under item 4 of the table in

subsection 90B(4) of the Commonwealth Electoral Act 1918 is the

jury roll for the jury district to which the information relates.

(2) However, the information ceases to be the jury roll for the jury

district if:

(a) the Registrar is later given information:

(i) under item 4 of the table in subsection 90B(4) of the

Commonwealth Electoral Act 1918; and

(ii) the information relates to the jury district; or

(b) the period of 12 months has elapsed since the first-mentioned

information was given to the Registrar;

whichever happens first.

23DH Qualification and liability for serving on jury

Qualification for serving on jury

(1) A person is qualified to serve as a juror if:

(a) the person's name is on the jury roll for the applicable jury

district; and

(b) the person is entitled to vote at elections of Members of the

House of Representatives in accordance with subsection

93(2) of the Commonwealth Electoral Act 1918.

This subsection has effect subject to sections 23DI and 23DJ.

Note 1:

A person on the jury roll who is entitled to vote may not be qualified

to serve as a juror, see sections 23DI and 23DJ.

Note 2:

For applicable jury district, see section 23DL.

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Liability to serve on jury

(2) A person who is qualified under subsection (1) to serve as a juror is

liable to serve as a juror in particular proceedings unless the

person:

(a) is excused from that service for those proceedings under

section 23DQ, 23DR or 23DV; or

(b) is discharged as a juror or potential juror for those

proceedings under Subdivision E.

Lack of qualification does not affect validity of verdict

(3) Anything done by a jury is not invalid merely because a juror on

the jury was not qualified to serve as a juror.

23DI Disqualification from serving on jury (convictions, charges,

detention orders etc.)

When a person is not qualified

(1) A person is not qualified to serve as a juror if:

(a) the person has been:

(i) convicted of an offence against a law of the

Commonwealth, a State or a Territory; and

(ii) sentenced to imprisonment for life, or to serve a term of

imprisonment of more than 12 months, as a result of the

conviction; or

(b) the person has been:

(i) convicted of an offence against a law of a foreign

country; and

(ii) sentenced to death, imprisonment for life, or to serve a

term of imprisonment of more than 12 months, as a

result of the conviction; or

(i) tried for an offence against a law of the Commonwealth,

a State, a Territory or a foreign country; and

(ii) ordered to be detained for life, or for a period of more

than 12 months, in a hospital, juvenile facility or other

detention facility as a result of the trial; or

(d) the person has, within the last 10 years, been:

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(i) convicted of an offence against a law of the

Commonwealth, a State, a Territory or a foreign

country; and

(ii) sentenced to serve a term of imprisonment (including by

way of periodic detention) as a result of the conviction;

(e) the person has, within the last 10 years, been:

(i) tried for an offence against a law of the Commonwealth,

a State, a Territory or a foreign country; and

(ii) ordered to be detained in a hospital, juvenile facility or

other detention facility as a result of the trial; or

(f) the person is currently:

(i) serving a term of imprisonment (including by way of

periodic detention); or

(ii) being detained in a hospital, juvenile facility or other

detention facility; or

(iii) subject to an order for periodic home detention or

periodic detention in a hospital, juvenile facility or other

detention facility; or

(g) the person is currently subject to:

(i) a good behaviour bond or community service order; or

(ii) a similar order; or

(h) the person is currently being held in custody for the

commission, or suspected commission, of a criminal offence;

(i) the person:

(i) has been charged with an offence against a law of the

Commonwealth, a State, a Territory or a foreign

country; and

(ii) is currently at liberty in respect of the offence until the

person is required to appear before a court in respect of

the offence.

Note:

For paragraph (i), the person will be at liberty in respect of the offence

if bail is granted for the offence.

Extended meaning of serving a term of imprisonment

(2) For the purposes of subsection (1), serving a term of

imprisonment includes:

(a) the case where:

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(i) a person has been sentenced to a term of imprisonment;

and

(ii) the sentence has been suspended; and

(iii) the period of suspension has not ended; and

(b) the case where:

(i) a person has been sentenced to a term of imprisonment;

and

(ii) the person has started serving the sentence; and

(iii) the person has been released on parole or probation or

on a similar basis; and

(iv) that period of release has not ended.

Disregard convictions etc. that have been set aside

(3) For the purposes of this section, disregard a conviction, sentence or

order if the conviction, sentence or order has been set aside on

appeal or as a result of a pardon.

23DJ Disqualification from serving on jury (professional

ineligibility)

(1) A person is not qualified to serve as a juror if the person is:

(a) the Governor or Administrator of a State or Territory; or

(b) a judge, or other judicial officer, of a court of a State or

Territory; or

State or Territory; or

(d) a qualified legal practitioner who holds a legal practising

certificate in a State or Territory; or

(e) a person whose duties or activities involve or are connected

with:

(i) the investigation or prosecution of criminal offences; or

(ii) the administration of justice; or

(iii) the punishment of offenders; or

(f) a person who:

(i) is excluded by a State or Territory law from serving as a

juror in a court of that State or Territory; and

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(ii) is so excluded because the person's current duties or

activities involve or are connected with public

administration or emergency services.

(2) Subsection (1) has effect in addition to:

(a) section 147 of the Navigation Act 1912 and any other law

that exempts other categories of persons from serving as

jurors; or

(b) the Jury Exemption Act 1965 and any other law that provides

that other categories of persons are not liable to serve as

jurors.

For the purposes of this Division, a person exempt from serving, or

not liable to serve, as a juror under a law referred to in

paragraph (a) or (b) is taken to be not qualified to serve as a juror.

(3) Subsection (1) applies whether the position the person holds is paid

or not.

23DK When Sheriff is to convene a jury panel

(1) The Court may give the Sheriff a written direction to convene a

jury panel for indictable primary proceedings.

(2) The direction must specify the place (the sitting place) in the State

or Territory where the jury is to sit.

(3) The Sheriff must comply with the direction.

23DL Sheriff to select the jury district for the proceedings

(1) The Sheriff must, in writing, determine which jury district is to

apply to the proceedings. This jury district (the applicable jury

district) must be:

(a) the jury district (if any) that includes the sitting place; or

(b) another jury district, in the same State or Territory as the

sitting place, that is near the sitting place.

(2) A determination made under subsection (1) is not a legislative

instrument.

23DM Sheriff to prepare the jury list for the proceedings

(1) The Sheriff must prepare a jury list for the proceedings.

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(2) The jury list consists of the names, addresses, dates of birth and

sex of persons that the Sheriff selects from the jury roll for the

applicable jury district.

Note 1:

The jury list may be supplemented under subsection (5).

Note 2:

The Sheriff may remove a person's name from the jury list under

section 23DO.

(3) The persons to be included in the jury list are to be selected at

random from the jury roll.

(4) The number of persons to be selected is the number the Sheriff

thinks is adequate to allow a jury to be empanelled.

(5) If:

(a) a jury list has been prepared under subsection (1); and

(b) the jury list no longer contains the number of persons the

Sheriff thinks is adequate to allow a jury to be empanelled;

the Sheriff may supplement the list by selecting additional persons,

who have not already been summonsed under section 23DP for the

jury, at random from the jury roll for the applicable jury district.

Note:

The situation described in paragraph (b) may arise because of a larger

than expected number of persons being removed from the list under

section 23DO.

(6) A jury list is not a legislative instrument.

23DN Investigation and questionnaires

(1) The Sheriff may make such enquiries as he or she thinks necessary

to determine whether a person included on the jury list:

(a) is not qualified to serve as a juror; or

(b) should be excused from serving as a juror.

(2) Without limiting subsection (1), the Sheriff may send a

questionnaire to some or all of the persons included in the jury list.

(3) A person who receives a questionnaire under subsection (2) must

complete the questionnaire in the manner specified and return it to

the Sheriff within 14 days.

Note:

It is an offence if the person fails to return, or properly complete, the

questionnaire (see section 58AE).

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(4) A failure by a person to comply with subsection (3) does not affect

the retention of the person's name on the jury list.

(5) After preparing the jury list, the Sheriff may:

(a) give the Commissioner of the Australian Federal Police the

name and other details of any or all of the persons included in

the jury list; and

(b) request the Commissioner to give information about the

criminal history (if any) of each of those persons.

The Commissioner must give the information to the Sheriff.

(6) The Sheriff may give the Court any information that the

Commissioner gives the Sheriff under this section.

Note:

If the information indicates that the person is not qualified, the Sheriff

has power to remove the person's name from the jury list under

section 23DO and there is no need to pass the information on to the

Court.

(7) The Sheriff must not disclose information given to the Sheriff by

the Commissioner under this section except:

(a) to the Court under subsection (6); or

(b) otherwise for the purposes of this Act.

23DO Removing names from jury list

The Sheriff must remove a person's name from the jury list if the

Sheriff is satisfied that:

(a) the person is not qualified to be a juror; or

(b) the Sheriff would excuse the person from serving on the jury:

(i) under section 23DQ if the person were a potential juror

who had applied under that section to be excused; or

(ii) under section 23DR if the person were a potential juror.

23DP Jury summonses

(1) The Sheriff must issue summonses to a sufficient number of

persons on the jury list to allow the empanelment of the jury.

Note:

It is an offence if a person issued with a summons fails to attend for

jury service in accordance with the summons, and the person has not

been excused (see section 58AA).

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(2) The persons to be summonsed are to be selected at random from

the jury list.

(3) A summons to a person must be in the form, and be served, as

provided for in the Rules of Court.

(4) The Sheriff may withdraw a summons issued under this section.

23DQ Sheriff's power to excuse--on application

(1) A potential juror (or an interested person on the potential juror's

behalf) may apply to the Sheriff, at any time before the potential

juror is seated in the jury box under section 23DU, for the potential

juror to be excused from serving on the jury.

(2) The Sheriff may excuse the potential juror if the Sheriff is satisfied

that there is good cause to excuse the potential juror because of:

(a) the potential juror's health; or

(b) undue hardship, financial or otherwise, to the potential juror,

or to another person, if the potential juror is not excused; or

jurisdiction in Australia; or

(d) substantial inconvenience to the public resulting from the

potential juror's serving on the jury; or

(e) the potential juror's inability, in all the circumstances, to

perform the duties of a juror to a reasonable standard.

Note:

For paragraph (e), the Sheriff must have regard to the Disability

Discrimination Act 1992.

23DR Sheriff's power to excuse--on own initiative

(1) At any time before a potential juror is seated in the jury box under

section 23DU, the Sheriff may excuse the potential juror from

serving on the jury if the Sheriff is satisfied that the potential juror :

(a) is, in all the circumstances, unable to perform the duties of a

juror to a reasonable standard; or

(b) is otherwise not required for jury service.

Note:

The Sheriff must have regard to the Disability Discrimination Act

1992.

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(2) If the Sheriff becomes aware that a potential juror is not qualified

to serve as a juror, the Sheriff must excuse the potential juror from

serving on the jury.

23DS Preparing the jury panel

(1) The Sheriff must prepare a jury panel by listing the names,

addresses and dates of birth of:

(a) each potential juror who has attended in accordance with a

jury summons; or

(b) an adequate number of potential jurors, selected at random,

from those who have attended in accordance with a jury

summons.

(2) Only potential jurors who:

(a) are qualified to serve as jurors; and

(b) are not excused from serving on the jury;

are to be included on the jury panel.

(3) The Sheriff must assign a number to each potential juror who is

included on the jury panel, indicating the number next to the

person's name on the list prepared.

(4) A potential juror, who is not excused by the Sheriff, remains liable

to be included on the jury panel until the potential juror is

discharged.

Note:

A potential juror will be discharged if excused or successfully

challenged (see section 23EI).

23DT Preparing to empanel the jury

(1) At the beginning of the trial, the Sheriff must:

(a) give the Court the list of potential jurors on the jury panel

prepared under subsection 23DS(1); and

(b) facilitate the attendance in court of those potential jurors.

(2) Before the selection of persons to be empanelled as the jury for the

trial, the Court must inform the parties to the trial that:

(a) the potential jurors whose names and/or numbers are to be

called may become jurors for the trial; and

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(b) if the party wishes to challenge any of them, the party must

make the challenge before the potential juror sits in the jury

box.

(3) Before the selection of persons to be empanelled as the jury for a

trial, the Court must:

(a) inform the potential jurors on the jury panel of the nature of

the trial in question, including the offences for which the

accused is being tried; and

(b) inform the potential jurors on the jury panel of the identities

of:

(i) the parties; and

(ii) to the extent known to the Court, the principal witnesses

to be called during the trial; and

excused if they consider that:

(i) they are not able to give impartial consideration to the

case; or

(ii) they should be excused for any other reason.

23DU Empanelling the jury

(1) The Court must ensure that an officer of the Court calls:

(a) the name; or

(b) if a direction under section 23EB has modified the

procedure--the number;

of a potential juror selected at random from the jury panel.

(2) If:

(a) 2 or more potential jurors have the same name; and

(b) their name is required to be called under subsection (1);

the officer of the Court must call their name and number.

(3) If a potential juror's name and/or number is called, the potential

juror must sit in the jury box unless, before the potential juror can

do so, the potential juror is:

(a) excused under this Subdivision from serving on the jury; or

(b) stood aside under section 23DZA; or

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Note:

A potential juror is discharged under subsection 23EI(2) if the

potential juror's inclusion on the jury is successfully challenged (see

sections 23DX to 23DZ).

(4) The officer of the Court must continue to call the names and/or

numbers of potential jurors, as provided under subsection (1), until

the required number of jurors under section 23DC are seated in the

jury box.

(5) When the required number of jurors under section 23DC are seated

in the jury box, those potential jurors must be sworn or make an

affirmation.

(6) When every potential juror seated in the jury box has been sworn,

or has made an affirmation, those potential jurors are taken to have

been empanelled as the jury for the trial.

23DV Court's power to excuse a person from serving on jury

(1) Before a potential juror sits in the jury box, the Court may:

(a) if the potential juror requests (including by giving a note to

the Judge); or

(b) of the Court's own motion;

excuse the potential juror from serving on the jury if the Court is

satisfied that it is appropriate to do so in the circumstances.

(2) If:

(a) a jury has been empanelled under section 23DU; and

(b) either:

(i) the jury is not discharged under subsection 23EL(1); or

(ii) if the jury is so discharged, the Court does not give a

direction under subsection 23EM(3);

all the potential jurors who were not empanelled for the trial are

taken to be excused by the Court from serving on the jury.

23DW Supplementary jurors

(1) If there is an insufficient number of potential jurors available on

the jury panel for empanelment of the jury under section 23DU, the

Court may direct the Sheriff to supplement the jury panel by:

(a) if the original panel did not include each potential juror who

attended in accordance with a jury summons--selecting

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additional potential jurors from those attending in the same

manner as was done in the formation of the original panel

under section 23DS; or

(b) both:

(i) causing additional summonses to be issued under

section 23DP to persons not already summonsed under

that section for the jury; and

(ii) selecting additional persons from those summonsed and

appearing in accordance with that section, in the same

manner as was done in the formation of the original

panel under section 23DS; or

Court who are qualified to serve on the jury.

(2) For the purposes of this Division, a person selected under

paragraph (1)(c) is taken to be a potential juror included on the jury

panel.

23DX Challe nges to potential jurors--general

(1) This section and sections 23DY and 23DZ set out each party's

rights to challenge the inclusion of a potential juror in a jury.

(2) If a party wishes to challenge the inclusion of a potential juror in

the jury, the party must do so:

(a) after the potential juror's name and/or number has been

called in accordance with section 23DU; and

(b) before the potential juror sits in the jury box.

(3) If:

(a) the inclusion of a potential juror on the jury is challenged;

and

(b) the challenge is upheld;

the potential juror must not be empanelled on the jury.

Note:

The potential juror is taken to be discharged (see subsection 23EI(2)).

23DY Challe nges for cause

(1) Each party to the proceedings may exercise an unlimited number of

challenges for cause.

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(2) A challenge to a potential juror for cause must be tried by a Judge

before whom the jury is being empanelled.

23DZ Pere mptory challenges

The accused is entitled to:

(a) 4 peremptory challenges; and

(b) an additional peremptory challenge if more than 12 jurors are

to be empanelled for the proceedings.

Note:

If more than one accused is being tried (see sections 23BB and 23BD),

then each accused is entitled to this number of challenges.

23DZA Prosecutor may request that potential jurors be stood aside

(1) This section sets out the prosecutor's right to request that a

potential juror be stood aside.

(2) If:

(a) a potential juror's name and/or number is called under

subsection 23DU(1); and

(b) before the potential juror sits in the jury box, the prosecutor

requests the Court to order the potential juror to stand aside;

the Court must order the potential juror to stand aside until all other

potential jurors on the jury panel have been called for a first time.

(3) If:

(a) all potential jurors on the jury panel have been called for a

first time; and

(b) there is fewer than the required number of jurors under

section 23DC seated in the jury box;

any potential juror who has been ordered to stand aside is eligible

to have his or her name and/or number called a second time in

accordance with section 23DU.

Note:

Subsection 23DU(1) requires potential jurors to be called at random.

(4) If a potential juror has his or her name and/or number called for a

second time in accordance with subsection (3) the prosecutor may

not request that the potential juror be stood aside.

Note:

The prosecutor may still challenge the potential juror's inclusion in

the jury (see section 23DY).

(5) The prosecutor is entitled to:

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(a) 4 requests under subsection (2); and

(b) an additional request under subsection (2) if more than 12

jurors are to be empanelled for the proceedings.

Subdivision E--Other jury matters

23EA Appointing the jury foreperson

The jury must appoint a foreperson:

(a) when directed by the Court; or

(b) in the absence of such a direction--as soon as practicable

after being empanelled.

23EB Confidentiality directions

(1) The Court may give such directions as the Court thinks necessary

in order to protect the security of a juror or potential juror.

(2) Without limiting subsection (1), the Court may direct that a

potential juror:

(a) be called under subsection 23DU(1) by number only; and

(b) be referred to during the proceedings by number only.

(3) A direction under this section may cover more than one juror or

potential juror.

23EC Things to help jury understand issues

(1) The Court may order such things (including copies of documents)

as it thinks appropriate in the circumstances to be given to the jury

to assist the jury to understand issues during the trial.

(2) The Court may specify in an order under subsection (1) when, and

the manner in which, the things are to be given to the jury.

23ED Recalling the jury for further directions or evidence

After the jury retires to consider its verdict on a count in the

indictment, but before the jury reaches its verdict on the count, the

Court may recall the jury in order for the jury:

(a) to be given further directions; or

(b) to hear further evidence.

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23EE When jury can separate

(1) The jury:

(a) may separate at any time before the jury retires to consider its

verdict on a count in the indictment; but

(b) must not separate after the jury retires to consider its verdict

on the count;

unless the Court orders to the contrary.

(2) The Court need not be in the presence of the jury when making an

order under subsection (1).

23EF Directions and potential jurors and jurors

(1) Each juror is subject to the direction of the Sheriff and the Court.

Note:

Failing to comply with a direction is an offence (see section 58AC).

(2) Each potential juror is, after attending for service as a juror in

accordance with the jury summons, subject to the direction of the

Sheriff and the Court.

Note:

Failing to comply with a direction is an offence (see section 58AB).

23EG Sheriff's powe rs

Investigations

(1) The Sheriff must investigate whether the verdict of a jury is being,

or has been, affected because of the improper conduct of a juror or

jurors if:

(a) the Sheriff has reason to suspect that the verdict is being, or

has been, so affected, and the Court has consented to the

investigation; or

(b) the Court requests the investigation.

Note:

During and after the investigation, the Court or the Sheriff can give a

direction to a juror under section 23EF.

(2) The Sheriff must report the outcome of the investigation to the

Court.

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Disclosing information

(3) Subsection (4) applies in relation to a person (the officer) whose

duties include convening juries for trials before a court of a State or

Territory.

(4) The Sheriff may disclose to the officer information identifying a

juror or former juror so that the officer can consider whether to

summons the juror or former juror when convening a trial before

the State or Territory court.

Note:

For specification by class, see subsection 46(3) of the Acts

Interpretation Act 1901.

23EH Jurors' remuneration

The regulations may provide for remuneration and allowances to

be payable to the following persons:

(a) a potential juror who attends for service as a juror in

accordance with a summons issued under section 23DP;

(b) a juror.

23EI Discharge of potential jurors

(1) A potential juror is discharged if the potential juror is excused from

serving on the jury under Subdivision D.

(2) A potential juror is discharged if a challenge to the inclusion of the

potential juror on the jury is upheld.

23EJ Discharge of jurors--by law

(1) A juror is discharged if the juror is not selected in a ballot

conducted under section 23DE in relation to the jury.

(2) A juror is taken to be discharged if the juror dies.

23EK Discharge of jurors--by the Court

The Court, during a trial, must discharge a juror if it appears to the

Court that the juror:

(a) is not impartial; or

(b) is incapable of continuing to act as a juror; or

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23EL Discharge of jury

Discharge if composition of jury unsatisfactory

(1) Immediately following the empanelment of the jury for a trial, the

Court may discharge the entire jury if the Court is satisfied that the

exercise of challenges has resulted in a jury whose composition is

such that the trial might be, or might appear to be, unfair.

Discharge if each count relating to the accused is dealt with

(2) The Court must discharge the jury in relation to an accused if each

count in the indictment that relates to the accused is covered by one

of the following paragraphs:

(a) the Court is satisfied that the jury is not able to reach a

unanimous verdict on the count in relation to the accused;

(b) the jury delivers its verdict on the count in relation to the

accused;

by the accused to the count;

(d) the Court enters, under subsection 23FH(2), a judgment of

acquittal for the count in relation to the accused;

(e) the count is an alternate to a count covered by one of the

above paragraphs.

Discharge in the interests of justice

(3) The Court may, at any time during a trial, discharge a jury if the

Court is satisfied that it is expedient to do so in the interests of

justice.

Discharge if Judge incapable of proceeding

(4) If, during a trial, a Judge becomes incapable of proceeding with the

trial or directing the discharge of the jury, another Judge must

discharge the jury.

Discharge if number of jurors falls below 10

(5) The Court must discharge the jury immediately if the number of

jurors falls below that permitted in subsection 23DD(3).

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23EM Consequences of discharging the jury

General rule

(1) The Court must order a new trial of an accused in relation to a

count in the indictment if:

(a) the jury is discharged without delivering a unanimous verdict

on the count in relation to the accused; and

(b) the count is not covered by paragraph 23EL(2)(c), (d) or (e).

If Court thinks it appropriate to empanel a new jury from the same

jury panel

(2) Subsection (1) does not apply if:

(a) the jury is discharged under subsection 23EL(1); and

(b) the Court thinks it appropriate to give a direction under

subsection (3).

(3) If the jury is discharged under subsection 23EL(1), the Court may

direct an officer of the Court to start the process for empanelling a

new jury under section 23DU from the same jury panel.

(4) For the purposes of empanelling the new jury, this Division (other

than this section) applies as if the first jury had not been

empanelled.

Note 1:

This has the effect of resetting the limits on challenges, and for the

standing aside, of potential jurors.

Note 2:

The Court may direct the Sheriff to supplement the jury panel under

section 23DW.

(5) Despite subsection (4):

(a) the jurors on the first jury, and any potential jurors

discharged before the empanelling of the first jury, cannot be

empanelled on the new jury and remain discharged; and

(b) to avoid doubt, section 23DT is taken to have been satisfied

in relation to the empanelling of the new jury.

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Subdivision F--Matters relating to pleas, the trial and verdicts

23FA Accused to be arraigned before the jury

(1) If the prosecution of the accused is to proceed to trial, the accused

must be arraigned before a jury in accordance with the Rules of

Court.

(2) The trial on indictment of the accused starts when the accused is

arraigned before the jury.

23FB Practice and procedure applicable to the trial

Unless the Court orders otherwise:

(a) the laws of the Commonwealth; and

(b) the laws of the State or Territory applying under subsection

68(1) of the Judiciary Act 1903; and

relating to the practice and procedure to be followed during the

trial, are to be those in force at the time the indictment is filed in

the Court.

23FC Admissibility of evidence given in committal proceedings

(1) If the trial happens as the result of a court committing the accused

for trial before the Court, then this section applies to:

(a) evidence given by witnesses; and

(b) documents tendered in evidence;

(committal evidence) during those committal proceedings (whether

or not the committal evidence was given, or tendered, in relation to

an offence being determined at the trial).

(2) The Court may allow a party to admit committal evidence, in

whole or in part, as evidence at the trial if the Court is satisfied:

(a) that the individual who gave the evidence, or tendered the

document, in the committal proceedings:

(i) is dead, or is so ill as not to be able to travel or to give

evidence without a risk of endangering the individual's

life; or

(ii) is absent from Australia; or

(b) that there are other valid reasons for doing so.

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23FD Entering pleas

(1) The accused may enter a plea of guilty, or not guilty, to a count in

the indictment.

Note:

The Court may reject a plea of guilty in the interests of justice (see

subsection 23FJ(1)).

(2) The accused is taken to have entered a plea of not guilty to a count

in the indictment if the accused fails to enter a plea to the count

when directed by the Court.

Note:

A failure to enter a plea includes a failure to say anything and a failure

to give a direct answer.

(3) The accused may both:

(a) enter a plea to a count in the indictment; and

(b) object to the count.

23FE Pleading to some counts in satisfaction of other counts

If:

(a) the accused enters a plea of guilty to one or more counts in

the indictment; and

(b) the prosecutor advises the Court that the prosecutor accepts

the plea or pleas of guilty in satisfaction of the indictment;

the indictment is taken to be amended so that no other count in the

indictment covers the accused.

23FF Pleading to different offences capable of being supported by

indictment

(1) The accused may enter a plea of guilty to an offence not specified

in the indictment if:

(a) the Court has jurisdiction to try a person for the offence; and

(b) the prosecutor consents; and

allegation that the accused committed the offence.

(2) For the purposes of this Act, if the accused pleads guilty to an

offence in accordance with subsection (1), the indictment is taken

to have always included a count against the accused for the

offence.

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Note:

If the accused proposes to enter a plea of guilty to an offence that

cannot be supported by the matters alleged in the indictment, the

prosecutor will need to amend the indictment under section 23BH to

include a count for the offence before the accused can enter the plea to

that offence.

23FG Changing pleas

Accused may change plea

(1) The accused may change his or her plea in accordance with this

section.

Changing plea to guilty

(2) If the accused has entered a plea of not guilty in relation to a count

in the indictment, the accused may change the plea to guilty.

Note:

The Court may reject the change of plea in the interests of justice (see

subsection 23FJ(1)).

Changing plea to not guilty

(3) If the accused has entered a plea of guilty in relation to a count in

the indictment, the accused may change the plea to not guilty only

with the leave of the Court. The Court may grant leave at any time

before the Court imposes a sentence on the accused in relation to

an offence specified in the count.

(4) If the accused changes the plea in accordance with subsection (3):

(a) the Court must direct that the accused be put on trial in

relation to the count; and

(b) the Court may make such orders as to matters preliminary to

the trial as the Court thinks appropriate.

Note:

The Court could, for example, make orders under Subdivision C.

23FH Court's verdict if no case to answer

(1) This section applies if:

(a) after the close of the prosecutor's case for a count in the

indictment in relation to the accused; and

(b) before the jury delivers its verdict for the count in relation to

the accused;

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the Court finds the accused has no case to answer in relation to the

count.

(2) The Court must:

(a) enter a judgment of acquittal for the count in relation to the

accused; and

(b) discharge the accused in relation to the count.

(3) The Court must not direct the jury to deliver a verdict for the count

in relation to the accused.

23FI Jury's verdict

Verdict must be unanimous

(1) The jury's verdict on each count in the indictment must be

unanimous. If the indictment includes alternate counts, the jury

need only reach a verdict on one of those counts.

(2) Before the jury retires to consider its verdict on a count in the

indictment, the Court must inform the jury that its verdict must be

unanimous.

Jury may deliver alternative verdicts

(3) If an offence specified in a count in the indictment is an offence for

which an Act allows the jury to find the accused:

(a) not guilty of the offence; but

(b) guilty of another offence;

the Court may inform the jury of this.

(4) If, in accordance with an Act referred to in subsection (3), the jury

unanimously finds the accused:

(a) not guilty of an offence specified in a count in the indictment;

but

(b) guilty of another offence;

the indictment is taken to have always included a count against the

accused for the other offence.

Foreperson is to deliver the verdict

(5) The jury's verdict is to be delivered by the jury foreperson.

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23FJ Consequences of guilty pleas and guilty verdicts

Guilty pleas

(1) If the accused:

(a) enters a plea of guilty; or

(b) changes, in accordance with subsection 23FG(2), a plea of

not guilty to a plea of guilty;

to a count in the indictment, the Court must accept the plea of

guilty unless:

accused to change the plea of guilty to a plea of not guilty; or

(d) it would be contrary to the interests of justice to accept the

plea of guilty.

(2) If a plea of guilty is not accepted under subsection (1):

(a) the plea has no further effect; and

(b) the accused is taken to have entered a plea of not guilty to the

count.

Guilty verdicts

(3) If the jury delivers a unanimous verdict of guilty for a count in the

indictment in relation to an accused, the Court must accept the

verdict unless it would be contrary to the interests of justice to do

so.

Consequences of accepting a guilty plea or guilty verdict

(4) If a plea of guilty, or a verdict of guilty, is accepted for a count in

the indictment in relation to an accused, then:

(a) the Court is taken to have found the count proven in relation

to the accused; and

(b) the accused is taken to be convicted of the offence covered

by the count; and

the offence (whether or not the Court first adjourns the

proceedings); and

(d) if there is an alternate count included in the indictment for the

accused and the first-mentioned count--the Court must

discharge the accused in relation to the alternate count.

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(5) However, if the accused changes, in accordance with subsection

23FG(3), a plea of guilty to the count to a plea of not guilty, then:

(a) paragraphs (4)(a) and (b) are taken never to have applied in

relation to the plea of guilty; and

(b) the Court must cease any sentencing proceedings to the

extent that those proceedings relate to the plea of guilty; and

paragraph (4)(d) in relation to an alternate count--the

accused is taken never to have been so discharged.

(6) Paragraph (4)(b) does not apply if, when sentencing the accused in

relation to the offence, the Court makes an order under section 19B

of the Crimes Act 1914.

23FK Consequences of not guilty verdicts

If the jury delivers a unanimous verdict of not guilty for a count in

the indictment in relation to the accused, the Court must acquit and

discharge the accused in relation to the count.

Subdivision G--Procedure on committal for sentencing

23GA When Subdivision applies

This Subdivision applies if, as a result of the accused entering a

plea of guilty to an indictable offence, a court (the committal

court) makes an order (the committal order) committing the

accused for sentencing before the Court for the offence.

23GB Accused taken to have been committed for trial etc.

(1) For the purposes of this Act and the Judiciary Act 1903, the

committal court is taken to have made an order:

(a) on the day it made the committal order; and

(b) to the effect of committing the accused for trial before the

Court for the indictable offence.

(2) If an indictment including a count covering the indictable offence

is filed in accordance with this Division, then this Division applies

as if:

(a) the accused entered before the Court, immediately after that

filing, a plea of guilty to the count; and

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(b) paragraph 23CA(1)(b) were omitted.

Note:

The Court must accept the plea unless either the Court gives leave to

the accused to change the plea to a plea of not guilty, or if it would be

contrary to the interests of justice to accept the plea (see subsection

23FJ(1)).

Subdivision H--Custodial and other matters

23HA Remanding in custody when proceedings adjourned

(1) If, during indictable primary proceedings:

(a) there is no bail order having effect for the accused for the

offence; or

(b) if a bail order is so having effect, the accused cannot be

released on bail for the offence (see subsection 58DE(1));

the Court may, by warrant of commitment, remand the accused in

custody during an adjournment in the proceedings.

Note 1:

Before the accused's first appearance before the Court, the person may

be being remanded in custody or granted bail under the law of a State

or Territory applied by subsection 68(1) of the Judiciary Act 1903.

Note 2:

Subject to this subsection, State or Territory law will apply in relation

to custody matters before the Court during the proceedings (see

sections 68 and 68B of the Judiciary Act 1903).

(2) A warrant of commitment under subsection (1) may be signed by

any Judge, the Registrar or any Deputy Registrar, District Registrar

or Deputy District Registrar of the Court.

23HB Oaths and affirmations

(1) A person required to make an oath or affirmation under this

Division must make the oath or affirmation in the form provided

for in the Rules of Court.

(2) The Court may require a person to make an oath or affirmation for

the purposes of this Division if the Court thinks this is reasonably

necessary.

23HC Protecting witnesses etc.

(1) The Court may make such orders as it thinks appropriate in the

circumstances to protect:

(a) witnesses called or proposed to be called; or

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(b) information, documents and other things admitted or

proposed to be admitted;

in indictable primary proceedings.

Note:

The Court may also restrict or prohibit the publication of information

about witnesses and evidence (see section 50).

(2) Without limiting subsection (1), the Court may do either or both of

the following under that subsection:

(a) order the exclusion of the public, or of persons specified by

the Court, from a sitting of the Court;

(b) direct how a witness may give evidence.

23HD Accused cannot make unsworn statements

An accused cannot make an unsworn statement in indictable

primary proceedings.

23HE Costs

Nothing in this Act gives the Court power to award costs in

indictable primary proceedings.

3 After Division 2 of Part III

Insert:

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FEDERAL COURT OF AUSTRALIA AMENDMENT (CRIMINAL JURISDICTION) BILL 2008