New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Amendment
(Summary Proceedings Case
Management) Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209 3
b2011-001-32.d17
New South Wales
Criminal Procedure Amendment
(Summary Proceedings Case
Management) Bill 2011
No , 2011
A Bill for
An Act to amend the Criminal Procedure Act 1986 to make provision for case
management in respect of summary proceedings dealt with by superior courts.
Criminal Procedure Amendment (Summary Proceedings Case
Clause 1 Management) Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Criminal Procedure Amendment (Summary Proceedings 3
Case Management) Act 2011. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
Schedule 1 Amendment of Criminal Procedure 1
Act 1986 No 209 2
[1] Section 170 Application 3
Insert "(except Division 2A)" after "Part 5" in section 170 (3). 4
[2] Section 170 (4) 5
Insert after section 170 (3): 6
(4) Division 2A of Part 5 applies to the following proceedings: 7
(a) proceedings before the Supreme Court, 8
(b) proceedings before the Land and Environment Court. 9
[3] Chapter 4, Part 5, Division 2A 10
Insert after Division 2: 11
Division 2A Case management provisions and other 12
provisions to reduce delays in proceedings 13
247A Application 14
This Division applies to proceedings before the Supreme Court, 15
or the Land and Environment Court, in its summary jurisdiction. 16
247B Purpose 17
(1) The purpose of this Division is to reduce delays in proceedings 18
before the court in its summary jurisdiction by: 19
(a) requiring certain preliminary disclosures to be made by the 20
prosecution and the defence before the proceedings are 21
heard, and 22
(b) enabling the court to undertake case management where 23
suitable in those proceedings, whether on its own motion 24
or on application by a party to the proceedings. 25
(2) Case management measures that are available to the court under 26
this Division include the ordering of preliminary hearings, 27
preliminary conferences and further preliminary disclosure. The 28
court has a discretion in determining which (if any) of those 29
measures are suitable in the proceedings concerned. 30
Page 3
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
247C Definitions 1
(1) In this Division: 2
appearance order means an order for the appearance or 3
apprehension of a person made under section 246. 4
court means the Supreme Court or the Land and Environment 5
Court. 6
preliminary conference means a conference held under 7
section 247H. 8
preliminary hearing means a hearing held under section 247G. 9
presiding Judge means the judge presiding at the hearing of the 10
proceedings. 11
(2) In this Division, a reference to the defendant is to be read as 12
including a reference to the Australian legal practitioner 13
representing the defendant. 14
247D Directions for conduct of proceedings 15
At the first mention of proceedings, the court is to give directions 16
with respect to the future conduct of the proceedings, including a 17
direction as to the time by which notice of the prosecution case is 18
to be given under section 247E and notice of the defence response 19
is to be given under section 247F. 20
247E Notice of prosecution case to be given to defendant 21
(1) The prosecutor is to give to the defendant notice of the 22
prosecution case that includes the following: 23
(a) a copy of the application for any appearance order relating 24
to the defendant, 25
(b) a statement of facts, 26
(c) a copy of the affidavit or statement (whichever is 27
applicable) of each witness whose evidence the prosecutor 28
proposes to adduce at the hearing of the proceedings, 29
(d) a copy of each document, evidence of the contents of 30
which the prosecutor proposes to adduce at the hearing of 31
the proceedings, 32
(e) if the prosecutor proposes to adduce evidence at the 33
hearing of the proceedings in the form of a summary, a 34
copy of the summary or, where the summary has not yet 35
been prepared, an outline of the summary, 36
(f) a copy of any exhibit that the prosecutor proposes to 37
adduce at the hearing of the proceedings, 38
Page 4
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(g) a copy of any chart or explanatory material that the 1
prosecutor proposes to adduce at the hearing of the 2
proceedings, 3
(h) if any expert witness is proposed to be called at the hearing 4
by the prosecutor, a copy of each report by the witness that 5
is relevant to the case, 6
(i) a copy of any information, document or other thing 7
provided by authorised officers to the prosecutor, or 8
otherwise in the possession of the prosecutor, that may 9
reasonably be regarded as relevant to the prosecution case 10
or the defence case, and that has not otherwise been 11
disclosed to the defendant, 12
(j) a list identifying: 13
(i) any information, document or other thing of which 14
the prosecutor is aware and that would reasonably 15
be regarded as relevant to the case but that is not in 16
the prosecutor's possession and is not in the 17
defendant's possession, and 18
(ii) the place at which the prosecutor believes the 19
information, document or other thing is situated, 20
(k) a copy of any information in the possession of the 21
prosecutor that is relevant to the reliability or credibility of 22
a prosecution witness. 23
(2) The regulations may make provision for or with respect to the 24
form and content of a statement of facts for the purposes of 25
subsection (1) (b). 26
(3) In this section, an authorised officer includes the following: 27
(a) a police officer, 28
(b) any person authorised by an Act in respect of which 29
proceedings may be brought before the Supreme Court or 30
the Land and Environment Court in its summary 31
jurisdiction to investigate any contravention, or suspected 32
contravention, of that Act. 33
247F Notice of defence response to be given to prosecutor 34
The defendant is to give the prosecutor notice of the defence 35
response that includes the following: 36
(a) the name of any Australian legal practitioner proposed to 37
appear on behalf of the defendant at the hearing of the 38
proceedings, 39
Page 5
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(b) notice of any consent that the defendant proposes to give 1
at the hearing of the proceedings under section 190 of the 2
Evidence Act 1995 in relation to each of the following: 3
(i) a statement of a witness that the prosecutor proposes 4
to adduce at the hearing of the proceedings, 5
(ii) a summary of evidence that the prosecutor proposes 6
to adduce at the hearing of the proceedings. 7
247G Preliminary hearings 8
(1) At the first mention of proceedings or at any other time, the court 9
may order the prosecutor and the defendant to attend one or more 10
preliminary hearings before the court. 11
(2) During a preliminary hearing, the court may make such orders, 12
determinations or findings, or give such directions or rulings, as 13
it thinks appropriate for the efficient management and conduct of 14
the proceedings. 15
(3) Without limiting subsection (2), the court may take any or all of 16
the following action under that subsection: 17
(a) hear and determine an objection to any application for an 18
appearance order prior to the commencement of a trial, 19
(b) order the holding of a preliminary conference under 20
section 247H, 21
(c) order preliminary disclosure by the prosecutor or the 22
defendant under section 247I, 23
(d) give a direction under section 247M (3), 24
(e) give a ruling or make a finding under section 192A of the 25
Evidence Act 1995 as if the trial or sentencing hearing had 26
commenced, 27
(f) hear and determine a submission that the case should not 28
proceed to trial prior to the commencement of the trial, 29
(g) give a ruling on any question of law that might arise at the 30
trial or sentencing hearing. 31
(4) Despite any other provision of this Act, the court may make any 32
order, determination or finding, or give any ruling, under this 33
section on application by a party to the proceedings or on the 34
court's own initiative. 35
(5) Any order, determination or finding made, or ruling given, by the 36
court under this section is binding on the presiding Judge in the 37
proceedings unless, in the opinion of the presiding Judge, it 38
Page 6
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
would not be in the interests of justice for the order, 1
determination, finding or ruling to be binding. 2
(6) Except with the leave of the court, a party to proceedings may not 3
raise a relevant preliminary hearing matter if a preliminary 4
hearing was held in the proceedings and: 5
(a) the matter was not raised at the preliminary hearing, or 6
(b) the matter was dealt with at the preliminary hearing. 7
(7) A relevant preliminary hearing matter means: 8
(a) an objection to an application for an appearance order, or 9
(b) a question that was the subject of a ruling or finding under 10
subsection (3) (e). 11
(8) Except with the leave of the court, a party to proceedings may not 12
raise a question of law that was the subject of a ruling under 13
subsection (3) (g) if a preliminary hearing was held in the 14
proceedings and the matter was dealt with at the preliminary 15
hearing. 16
(9) Leave is not to be granted under subsection (6) or (8) unless the 17
court is of the opinion that it would be contrary to the interests of 18
justice to refuse leave to raise the matter concerned. 19
247H Preliminary conferences 20
(1) At the first mention of proceedings or at any other time, the court 21
may order that a preliminary conference is to be held so long as 22
the time appointed for any such conference occurs after the 23
proceedings have commenced. 24
(2) The court may order the holding of a preliminary conference 25
under this section on application of any party or on the court's 26
own initiative. 27
(3) The court may make such an order only if the defendant will be 28
represented by an Australian legal practitioner at the preliminary 29
conference. 30
(4) The purpose of the preliminary conference is to determine 31
whether the defendant and the prosecutor are able to reach 32
agreement regarding the evidence to be admitted at the trial or 33
sentencing hearing. 34
Page 7
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(5) The following persons must be present during the preliminary 1
conference: 2
(a) the prosecutor, 3
(b) the Australian legal practitioner representing the 4
defendant. 5
(6) A joint preliminary conference may be held in respect of 2 or 6
more co-defendants, but only if: 7
(a) in the case of a preliminary conference held before trial-- 8
the prosecution and each of the co-defendants concerned 9
consent to the joint preliminary conference, or 10
(b) in the case of a preliminary conference held before 11
sentencing: 12
(i) the defendant and each co-defendant have pleaded 13
guilty to the offence or have been found guilty of the 14
offence by the court, and 15
(ii) the prosecution and each of the co-defendants 16
concerned consent to the joint preliminary 17
conference. 18
(7) A requirement under this section that a person be present for the 19
purposes of a preliminary conference is taken to be satisfied if the 20
person is present or available by way of an audio visual link or 21
audio link. 22
(8) Within 7 days after the holding of a preliminary conference: 23
(a) the prosecutor and the Australian legal practitioner who 24
represented the defendant at the preliminary conference 25
must complete a preliminary conference form, and 26
(b) the prosecutor must file the preliminary conference form 27
with the court. 28
(9) The preliminary conference form: 29
(a) is to indicate the areas of agreement and disagreement 30
between the defendant and the prosecutor regarding the 31
evidence to be admitted at the trial or sentencing hearing, 32
and 33
(b) is to be signed by the prosecutor and the Australian legal 34
practitioner representing the defendant. 35
(10) Except with the leave of the court, a party to proceedings may not 36
object to the admission of any evidence at the hearing of the 37
proceedings if the preliminary conference form indicates that the 38
parties have agreed that the evidence is not in dispute. 39
Page 8
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(11) Leave is not to be granted under subsection (10) unless the court 1
is of the opinion that it would be contrary to the interests of 2
justice to refuse leave. 3
247I Court may order preliminary disclosure in particular case 4
(1) After proceedings have been commenced, the court may make 5
any or all of the following orders, but only if the court is of the 6
opinion that it would be in the interests of justice to do so: 7
(a) order that the prosecutor is to give to the defendant notice 8
in accordance with section 247J, 9
(b) order that the defendant is to give to the prosecutor notice 10
of the defence response to the prosecution's notice in 11
accordance with section 247K, 12
(c) order that the prosecution is to give to the defendant notice 13
of the prosecution response to the defence response in 14
accordance with section 247L. 15
(2) The court may order preliminary disclosure under this section on 16
the application of any party or on the court's own initiative. 17
(3) The court may order preliminary disclosure by the defendant only 18
if the court is satisfied that the defendant will be represented by 19
an Australian legal practitioner. 20
(4) The court may limit preliminary disclosure to any specified 21
aspect of the proceedings. 22
(5) Preliminary disclosure required by an order under this section is 23
to be made in accordance with a timetable determined by the 24
court. 25
247J Prosecution notice--court-ordered preliminary disclosure 26
For the purposes of section 247I (1) (a), the prosecution's notice 27
is to contain the following: 28
(a) the matters required to be included in the notice of the 29
prosecution case under section 247E, 30
(b) a copy of any information, document or other thing in the 31
possession of the prosecutor that would reasonably be 32
regarded as adverse to the credit or credibility of the 33
defendant, 34
(c) a list identifying the affidavits or statements of those 35
witnesses who are proposed to be called at the hearing of 36
the proceedings by the prosecutor. 37
Note. The prosecutor is not required to include in a notice anything that 38
has already been included in a brief of evidence in relation to the matter 39
Page 9
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
served on the defendant or that has otherwise been provided or 1
disclosed to the defendant (see section 247U (1)). 2
247K Defence response--court-ordered preliminary disclosure 3
For the purposes of section 247I (1) (b), the notice of the defence 4
response is to contain the following: 5
(a) the matters required to be included in a notice under 6
section 247F, 7
(b) a statement, in relation to each fact set out in the statement 8
of facts provided by the prosecutor, as to whether the 9
defendant considers the fact is an agreed fact (within the 10
meaning of section 191 of the Evidence Act 1995) or the 11
defendant disputes the fact, 12
(c) a statement, in relation to each matter and circumstance set 13
out in the statement of facts provided by the prosecutor, as 14
to whether the defendant takes issue with the matter or 15
circumstance as set out, 16
(d) notice as to whether the defendant proposes to dispute the 17
admissibility of any proposed evidence disclosed by the 18
prosecutor and the basis for the objection, 19
(e) if the prosecutor disclosed an intention to adduce expert 20
evidence at the hearing of the proceedings, notice as to 21
whether the defendant disputes any of the expert evidence 22
and which evidence is disputed, 23
(f) a copy of any report, relevant to the proceedings, that has 24
been prepared by a person whom the defendant intends to 25
call as an expert witness at the hearing of the proceedings, 26
(g) if the prosecutor disclosed an intention to adduce evidence 27
at the hearing of the proceedings that has been obtained by 28
means of surveillance, notice as to whether the defendant 29
proposes to require the prosecutor to call any witnesses to 30
corroborate that evidence and, if so, which witnesses will 31
be required, 32
(h) notice as to whether the defendant proposes to raise any 33
issue with respect to the continuity of custody of any 34
proposed exhibit disclosed by the prosecutor, 35
(i) if the prosecutor disclosed an intention to tender at the 36
hearing of the proceedings any transcript, notice as to 37
whether the defendant accepts the transcript as accurate 38
and, if not, in what respect the transcript is disputed, 39
Page 10
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(j) notice as to whether the defendant proposes to dispute the 1
authenticity or accuracy of any proposed documentary 2
evidence or other exhibit disclosed by the prosecutor, 3
(k) notice of any significant issue the defendant proposes to 4
raise regarding an application for an appearance order, 5
severability of the charges or separate trials or sentencing 6
proceedings for the charges, 7
(l) notice of any consent the defendant proposes to give under 8
section 184 of the Evidence Act 1995. 9
Note. The defendant is not required to include in a notice anything that 10
has already been provided or disclosed to the prosecutor (see 11
section 247U (2)). 12
247L Prosecution response to defence response--court-ordered 13
preliminary disclosure 14
For the purposes of section 247I (1) (c), the notice of the 15
prosecution response to the defence response is to contain the 16
following: 17
(a) if the defendant has disclosed an intention to adduce expert 18
evidence at the hearing of the proceedings, notice as to 19
whether the prosecutor disputes any of the expert evidence 20
and, if so, in what respect, 21
(b) if the defendant has disclosed an intention to tender any 22
exhibit at the hearing of the proceedings, notice as to 23
whether the prosecutor proposes to raise any issue with 24
respect to the continuity of custody of the exhibit, 25
(c) if the defendant has disclosed an intention to tender any 26
documentary evidence or other exhibit at the hearing of the 27
proceedings, notice as to whether the prosecutor proposes 28
to dispute the accuracy or admissibility of the documentary 29
evidence or other exhibit, 30
(d) notice as to whether the prosecutor proposes to dispute the 31
admissibility of any other proposed evidence disclosed by 32
the defendant, and the basis for the objection, 33
(e) a copy of any information, document or other thing in the 34
possession of the prosecutor, not already disclosed to the 35
defendant, that might reasonably be expected to assist the 36
case for the defence, 37
(f) a copy of any information, document or other thing that 38
has not already been disclosed to the defendant and that is 39
required to be contained in the notice of the case for the 40
prosecution. 41
Page 11
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
247M Dispensing with formal proof 1
(1) If a fact, matter or circumstance was alleged in a notice required 2
to be given to the defendant by the prosecutor in accordance with 3
this Division and the defendant was required to give a defence 4
response under section 247K but did not disclose in the response 5
an intention to dispute or require proof of the fact, matter or 6
circumstance, the court may order that: 7
(a) a document asserting the alleged fact, matter or 8
circumstance may be admitted at the hearing of the 9
proceedings as evidence of the fact, matter or 10
circumstance, and 11
(b) evidence may not, without the leave of the court, be 12
adduced to contradict or qualify the alleged fact, matter or 13
circumstance. 14
(2) If evidence was disclosed by the prosecution to the defendant in 15
accordance with this Division and the defendant was required to 16
give a defence response under section 247K but did not disclose 17
in the response an intention to dispute the admissibility of the 18
evidence and the basis for the objection, the court may, by order, 19
dispense with the application of any one or more of the following 20
provisions of the Evidence Act 1995 in relation to the adducing of 21
the evidence at the hearing of the proceedings: 22
(a) Division 3, 4 or 5 of Part 2.1, 23
(b) Part 2.2 or 2.3, 24
(c) Parts 3.23.8. 25
(3) The court may, on the application of a party, direct that the party 26
may adduce evidence of 2 or more witnesses in the form of a 27
summary if the court is satisfied that: 28
(a) the summary is not misleading or confusing, and 29
(b) admission of the summary instead of evidence from the 30
witnesses will not result in unfair prejudice to any party to 31
the proceedings. 32
(4) The court may, in a direction under subsection (3), require that 33
one or more of the witnesses whose evidence is to be adduced in 34
the form of a summary are to be available for cross-examination. 35
(5) The opinion rule (within the meaning of the Evidence Act 1995) 36
does not apply to evidence adduced in accordance with a 37
direction under subsection (3). 38
(6) The provisions of this section are in addition to the provisions of 39
the Evidence Act 1995, in particular, section 190. 40
Page 12
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(7) This section does not affect section 4 (2) of the Evidence 1
Act 1995. 2
Note. Section 4 (2) of the Evidence Act 1995 provides that the Act 3
applies in proceedings relating to sentencing only if the court directs that 4
the law of evidence apply in the proceedings. 5
247N Sanctions for non-compliance with preliminary disclosure 6
requirements 7
(1) Exclusion of evidence not disclosed 8
The court may refuse to admit evidence in proceedings that is 9
sought to be adduced by a party who failed to disclose the 10
evidence to the other party in accordance with requirements for 11
preliminary disclosure imposed by or under this Division. 12
Note. The only evidence required from a defendant in the context of a 13
preliminary disclosure is expert evidence (see section 247K (f)). 14
Accordingly, such evidence may also be dealt with by the court under 15
subsection (2). 16
(2) Exclusion of expert evidence where report not provided 17
The court may refuse to admit evidence from an expert witness in 18
proceedings that is sought to be adduced by a party if the party 19
failed to give the other party a copy of a report by the expert 20
witness in accordance with requirements for preliminary 21
disclosure imposed by or under this Division. 22
(3) Adjournment 23
The court may grant an adjournment to a party if the other party 24
seeks to adduce evidence in the proceedings that the other party 25
failed to disclose in accordance with requirements for 26
preliminary disclosure imposed by or under this Division and that 27
would prejudice the case of the party seeking the adjournment. 28
(4) Application of sanctions 29
Without limiting the regulations that may be made under 30
subsection (5), the powers of the court may not be exercised 31
under this section to prevent a defendant adducing evidence 32
unless the prosecutor has complied with the requirements for 33
preliminary disclosure imposed on the prosecution by or under 34
this Division. 35
(5) Regulations 36
The regulations may make provision for or with respect to the 37
exercise of the powers of a court under this section (including the 38
circumstances in which the powers may not be exercised). 39
Page 13
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
247O Disclosure requirements are ongoing 1
(1) The obligation to comply with the requirements for preliminary 2
disclosure imposed by or under this Division continues until any 3
of the following happens: 4
(a) the defendant is acquitted of the charges to which the 5
proceedings relate, 6
(b) the prosecution is terminated, 7
(c) the defendant is sentenced for the offence to which the 8
proceedings relate. 9
(2) Accordingly, if any information, document or other thing is 10
obtained or anything else occurs after preliminary disclosure is 11
made by a party to the proceedings that would have affected that 12
preliminary disclosure had the information, document or thing 13
been obtained or the thing occurred before preliminary disclosure 14
was made, the information, document, thing or occurrence is to 15
be disclosed to the other party to the proceedings as soon as 16
practicable. 17
247P Court may waive requirements 18
(1) A court may, by order, waive any of the requirements that apply 19
under this Division. 20
(2) The court may make such an order on its own initiative or on the 21
application of the prosecutor or the defendant. 22
(3) An order may be made subject to such conditions (if any) as the 23
court thinks fit. 24
247Q Requirements as to notices 25
(1) A notice under this Division is to be in writing. 26
(2) Any notice purporting to be given under this Division on behalf 27
of the defendant by his or her Australian legal practitioner is, 28
unless the contrary is proved, taken to have been given with the 29
authority of the defendant. 30
(3) A notice under this Division that is required to be given to a 31
prosecutor may be given to the prosecutor in the following 32
manner, or as otherwise directed by the court: 33
(a) by delivering it to the prosecutor, 34
(b) by leaving it at the office of the prosecutor, 35
(c) by sending it by post or facsimile to the prosecutor at the 36
office of the prosecutor, 37
Page 14
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(d) by sending it by electronic mail to the prosecutor, but only 1
if the prosecutor has agreed to notice being given in that 2
manner. 3
(4) A notice under this Division that is required to be given to a 4
defendant may be given to the defendant in the following manner, 5
or as otherwise directed by the court: 6
(a) by delivering it to the defendant, 7
(b) by leaving it at the office of the Australian legal 8
practitioner representing the defendant, 9
(c) by sending it by post or facsimile to the Australian legal 10
practitioner representing the defendant at the office of the 11
Australian legal practitioner, 12
(d) by sending it by electronic mail to the Australian legal 13
practitioner, but only if the Australian legal practitioner 14
has agreed to notice being given in that manner. 15
(5) A party required to give a notice under this Division must file a 16
copy of the notice with the court as soon as practicable after 17
giving it, or as otherwise required by the court. 18
247R Copies of exhibits and other things not to be provided if 19
impracticable 20
(1) A copy of a proposed exhibit, document or thing is not required 21
to be included in a notice under this Division if it is impossible or 22
impractical to provide a copy. 23
(2) However, the party required to give the notice: 24
(a) is to specify in the notice a reasonable time and place at 25
which the proposed exhibit, document or thing may be 26
inspected, and 27
(b) is to allow the other party to the proceedings a reasonable 28
opportunity to inspect the proposed exhibit, document or 29
thing referred to in the notice. 30
247S Personal details not to be provided 31
(1) The prosecutor is not to disclose in any notice under this Division 32
the address or telephone number of any witness proposed to be 33
called by the prosecutor, or of any other living person, unless: 34
(a) the address or telephone number is a materially relevant 35
part of the evidence, or 36
(b) the court makes an order permitting the disclosure. 37
Page 15
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(2) An application for such an order may be made by the defendant 1
or the prosecutor. 2
(3) The court must not make such an order unless satisfied that the 3
disclosure is not likely to present a reasonably ascertainable risk 4
to the welfare or protection of any person or that the interests of 5
justice (including the defendant's right to prepare properly for the 6
hearing of the evidence for the prosecution) outweigh any such 7
risk. 8
(4) This section does not prevent the disclosure of an address if the 9
disclosure does not identify it as a particular person's address, or 10
it could not reasonably be inferred from the matters disclosed that 11
it is a particular person's address. 12
(5) An address or telephone number that must not be disclosed may, 13
without reference to the person who made the affidavit or 14
statement being disclosed, be deleted from that affidavit or 15
statement, or rendered illegible, before the affidavit or statement 16
is given to the defendant. 17
247T Requirements as to statements of witnesses 18
(1) A statement of a witness that is included in a notice under this 19
Division may be in the form of questions and answers. 20
(2) If a notice includes a statement that is, wholly or in part, in a 21
language other than English, there must be annexed to it a 22
document purporting to contain a translation of the statement, or 23
so much of it as is not in the English language, into the English 24
language. 25
247U Exemption for matters previously disclosed 26
(1) The prosecutor is not required to include in a notice under this 27
Division anything that has already been included in a brief of 28
evidence in relation to the matter served on the defendant in 29
accordance with this or any other Act or that has otherwise been 30
provided or disclosed to the defendant. 31
(2) The defendant is not required to include in a notice under this 32
Division anything that has already been provided or disclosed to 33
the prosecutor. 34
247V Court powers to ensure efficient management and conduct of trial 35
or sentencing hearing 36
(1) On or after the commencement of the trial or sentencing hearing, 37
the court may make such orders, determinations or findings, or 38
give such directions or rulings, as it thinks appropriate for the 39
Page 16
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
efficient management and conduct of the trial or sentencing 1
hearing. 2
(2) Without limiting subsection (1), the court may order that any of 3
the parties to the proceedings disclose any matter that was, or 4
could have been, required to be disclosed under this Division 5
before the commencement of the trial or sentencing hearing. 6
247W Preliminary orders and other orders bind presiding Judge 7
(1) A preliminary order made in proceedings is binding on the 8
presiding Judge in those proceedings unless, in the opinion of the 9
presiding Judge, it would not be in the interests of justice for the 10
order to be binding. 11
(2) If, on an appeal against conviction or sentence, a new trial or 12
sentencing hearing is ordered, a preliminary order, or an order 13
made by the presiding Judge, in relation to the proceedings from 14
which the conviction or sentence arose, is binding on the 15
presiding Judge who is presiding at the fresh hearing unless: 16
(a) in the opinion of the presiding Judge who is presiding at 17
the fresh hearing, it would not be in the interests of justice 18
for that order to be binding, or 19
(b) that order is inconsistent with an order made on appeal. 20
(3) If proceedings before a presiding Judge are discontinued for any 21
reason, a preliminary order, or an order made by the presiding 22
Judge, in relation to those proceedings is binding on a presiding 23
Judge presiding at any subsequent hearing relating to the same 24
offence as the discontinued proceedings unless, in the opinion of 25
the presiding Judge presiding at the subsequent hearing, it would 26
not be in the interests of justice for the order to be binding. 27
(4) In this section: 28
preliminary order means any order made by a Judge, before the 29
commencement of a trial or sentencing hearing, in proceedings to 30
which this Division applies. 31
247X Miscellaneous provisions 32
(1) A statement about any matter that is made by or on behalf of the 33
defendant for the purposes of complying with requirements for 34
preliminary disclosure imposed by or under this Division does 35
not constitute an admission of that matter by the defendant. 36
Page 17
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(2) The court may make orders to resolve any dispute between the 1
parties to criminal proceedings about: 2
(a) the requirements for preliminary disclosure imposed by or 3
under this Division, or 4
(b) the use of anything disclosed under this Division 5
(including restrictions on publication or further 6
disclosure). 7
(3) Nothing in this Division prevents any voluntary preliminary 8
disclosure by the defendant to the prosecutor of any information, 9
document or other thing that the defendant proposes to adduce in 10
evidence in the proceedings. 11
(4) This Division does not limit any obligation (arising otherwise 12
than under this Division) for preliminary or pre-trial disclosure 13
that is capable of being complied with concurrently with 14
requirements imposed by or under this Division, but this Division 15
prevails to the extent of any inconsistency with any such 16
obligation. Any such obligation extends to obligations imposed 17
by the common law, the rules of court, the legal profession rules 18
made under Part 7.5 of the Legal Profession Act 2004 and 19
prosecution guidelines issued by the Director of Public 20
Prosecutions or any other prosecuting authority. 21
(5) However, this Division does not affect any immunity that applies 22
by law to the disclosure of any information, document or other 23
thing, including, for example, legal professional or client legal 24
privilege, public interest immunity and sexual assault 25
communications privilege under Division 2 of Part 5 of 26
Chapter 6. 27
(6) Nothing in this Division limits any powers that a court has apart 28
from this Division in relation to proceedings. 29
(7) The provisions of this Division prevail over the provisions of the 30
Evidence Act 1995 to the extent of any inconsistency with those 31
provisions. 32
247Y Review of Division 33
(1) The Minister is to review this Division to determine whether the 34
policy objectives of the Division remain valid and whether the 35
terms of the Division remain appropriate for securing those 36
objectives. 37
(2) The review is to be undertaken as soon as possible after the period 38
of 2 years from the commencement of section 247A. 39
Page 18
Criminal Procedure Amendment (Summary Proceedings Case
Management) Bill 2011
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(3) A report on the outcome of the review is to be tabled in each 1
House of Parliament within 12 months after the end of the period 2
of 2 years. 3
[4] Section 248 Pre-trial procedure 4
Insert "Division 2A or by" after "required by". 5
[5] Schedule 2 Savings, transitional and other provisions 6
Insert at the end of clause 1 (1): 7
Criminal Procedure Amendment (Summary Proceedings Case 8
Management) Act 2011 9
[6] Schedule 2 10
Insert at the end of the Schedule with appropriate Part and clause numbers: 11
Part Provision consequent on enactment of 12
Criminal Procedure Amendment (Summary 13
Proceedings Case Management) Act 2011 14
Case management provisions 15
A provision of Division 2A of Part 5 of Chapter 4 applies only in 16
respect of proceedings that commence on or after the 17
commencement of that provision. 18
Page 19
[Index] [Search] [Download] [Related Items] [Help]