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PARLIAMENT OF VICTORIA
Criminal Procedure Amendment (Consequential
and Transitional Provisions) Bill 2009
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 3
3 Definitions 3
4 Notice to accompany summons or warrant 3
5 Personal service of summons 4
6 When an indictable offence may be heard and determined
summarily 4
7 Division heading substituted 4
8 Admissibility of evidence in absence of accused 4
9 Rules with respect to statements 5
10 Contents of hand-up brief 6
11 Rules with respect to recordings 6
12 Contents of plea brief 6
13 Committal mention hearing 6
14 Recording of evidence 6
15 On committing accused for trial 7
16 Evidence taken after committal 7
17 Special mention hearing 7
18 Transfer of charges to Magistrates' Court 8
19 Powers of court at directions hearing 8
20 Order for legal representation for accused 8
21 Manner of giving evidence 8
22 Determination of appeal 9
23 Abandonment of appeal 9
24 Failure to appear on appeal 10
25 Appeal against conviction 11
26 Determination of application for leave to appeal 11
27 New section 284A inserted 11
284A Determination of application for leave to appeal under
section 283 11
28 Determination of Crown appeal 12
561330B.I-16/9/2009 i BILL LA INTRODUCTION 16/9/2009
Clause Page
29 Crown appeal against sentence 12
30 Interlocutory appeals 12
31 DPP may refer point of law to Court of Appeal 13
32 Stay of certain orders during appeal period 13
33 Extension of time for filing or serving notice of appeal or
notice of application for leave to appeal 13
34 Powers of single Judge of Appeal 13
35 Bail following appeal 14
36 Petition for mercy 14
37 New section 336A inserted 14
336A Victim who is a witness entitled to be present in court 14
38 Court may act on application or on own motion 15
39 Service of documents 15
40 Notice to appear--costs 16
41 Issue of warrant to arrest 16
42 Transfer of charge to court with jurisdiction 16
43 Regulations 17
44 New section 14A in Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 17
45 New section 24AA in Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 17
46 Joint committals--Magistrates' Court Act 1989 18
47 Commencement of proceedings in Children's Court 18
48 Joint committals--Children, Youth and Families Act 2005 19
49 Statute law revision 19
50 New Part 8.2 inserted 20
PART 8.2--WITNESSES 20
Division 1--Guiding principles 20
338 Guiding principles 20
Division 2--Evidence concerning complainant 21
339 Application of Division 21
340 Definition 21
341 Prohibition on questions and evidence concerning
complainant's chastity 22
342 Restriction on questions and evidence concerning
complainant's sexual activities 22
343 Admissibility of sexual history evidence 22
344 Application for leave 22
345 Application for leave out of time 23
346 Contents of application for leave 23
347 Waiver of requirement to apply for leave in writing 24
348 Hearing of application for leave 24
349 Determination of application for leave during summary
hearing, committal proceeding or trial 24
561330B.I-16/9/2009 ii BILL LA INTRODUCTION 16/9/2009
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350 Determination of application for leave during
sentencing hearing 25
351 Court must state reasons if leave granted 26
352 Limitation on sexual history evidence 26
Division 3--Cross-examination of protected witnesses 27
353 Application of Division 27
354 Definitions 27
355 Court may declare witness to be protected witness 28
356 Protected witness not to be cross-examined by
accused in person 28
357 When accused is not legally represented 28
358 Jury warning concerning legal representation for
cross-examination 30
Division 4--Alternative arrangements for giving evidence 30
359 Application of Division 30
360 Alternative arrangements for giving evidence 31
361 Jury warning concerning alternative arrangements 32
362 Evidence given by closed-circuit television or other
facilities 32
363 When court must direct use of closed-circuit television
or other facilities for complainant 33
364 When court must direct use of screens for complainant 33
365 When court must direct presence of support person
for complainant 34
Division 5--Use of recorded evidence-in-chief of children
and cognitively impaired witnesses in sexual offence and
assault matters 34
366 Application of this Division 34
367 Use of recorded evidence-in-chief 35
368 Admissibility of recorded evidence-in-chief 35
Division 6--Procedure and rules for children and
cognitively impaired complainants 36
369 Application of Division 36
370 Special hearing for pre-recording evidence 37
371 Time limits for special hearing 37
372 Conduct of special hearing 38
373 Form in which recording of special hearing is to be
tendered 39
374 Admissibility of evidence from special hearing 40
375 Jury warning as to recording of special hearing 41
376 Cross-examination of complainant 41
377 Exception to hearsay rule--previous representations
made by complainant under 18 years 42
561330B.I-16/9/2009 iii BILL LA INTRODUCTION 16/9/2009
Clause Page
Division 7--Admission of recorded evidence of
complainant in sexual offence matters 43
378 Application of Division 43
379 Admissibility of recording of complainant's evidence 44
380 Prosecution to give notice of intention to tender
recording 45
381 Admission of recording of evidence of complainant 45
382 Jury warning as to recorded evidence of complainant 46
383 Attendance of complainant 46
384 Direct testimony in addition to recording 46
385 Cross-examination of complainant 47
386 Form in which recording of complainant's evidence
is to be tendered 48
387 Exception to hearsay rule 48
Division 8--Miscellaneous 49
388 Evidence of specialised knowledge in certain cases 49
389 Audiovisual link evidence from overseas in certain
proceedings 49
51 Amendment of cross-references consequential on renumbering 52
52 Renumbering of sections 338361 consequential on insertion
of new Part 8.2 55
53 New section 414 inserted 57
414 Acknowledgment of false statement 57
54 Renumbering of sections 362 onwards 57
55 New Chapter 10 inserted 59
CHAPTER 10--SAVINGS AND TRANSITIONAL
PROVISIONS 59
439 Savings and transitional provisions 59
56 Substitution of Schedule 2 59
SCHEDULE 2--Indictable Offences that may be Heard
and Determined Summarily 59
1 Common law 59
2 Aboriginal Heritage Act 2006 59
3 Assisted Reproductive Treatment Act 2008 60
4 Crimes Act 1958 60
5 Dangerous Goods Act 1985 64
6 Drugs, Poisons and Controlled Substances Act 1981 65
7 Electricity Industry Act 2000 65
8 Electricity Safety Act 1998 65
9 Environment Protection Act 1970 66
10 Equipment (Public Safety) Act 1994 66
11 Firearms Act 1996 66
12 Food Act 1984 66
561330B.I-16/9/2009 iv BILL LA INTRODUCTION 16/9/2009
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13 Gas Industry Act 2001 66
14 Gas Safety Act 1997 67
15 Health Records Act 2001 67
16 Heritage Act 1995 67
17 Information Privacy Act 2000 67
18 Juries Act 2000 67
19 Major Sporting Events Act 2009 67
20 Occupational Health and Safety Act 2004 67
21 Police Regulation Act 1958 67
22 Pollution of Waters by Oil and Noxious Substances
Act 1986 68
23 Prohibition of Human Cloning for Reproduction
Act 2008 68
24 Prostitution Control Act 1994 68
25 Rail Safety Act 2006 68
26 Research Involving Human Embryos Act 2008 68
27 Road Management Act 2004 68
28 Tobacco Act 1987 68
29 Transport Act 1983 69
30 Water Act 1989 69
31 Water Industry Act 1994 69
57 Amendment of Schedule 3 69
58 New Schedule 4 inserted 70
SCHEDULE 4--Savings and Transitional Provisions 70
1 Definitions 70
2 General transitional provision 71
3 Renumbering 71
4 References to superseded provisions 72
5 Commencing a criminal proceeding 72
6 Summary procedure 72
7 Committal proceeding 73
8 Trial 73
9 New trial or further hearing 74
10 Appeals 75
11 Petitions for mercy 76
12 Witnesses 76
13 Costs 78
14 Power to amend when there is a defect or error 78
15 Transfer of charge to court with jurisdiction 78
16 Perjury 78
17 Transitional regulations 79
561330B.I-16/9/2009 v BILL LA INTRODUCTION 16/9/2009
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PART 3--AMENDMENT OF CHILDREN, YOUTH AND
FAMILIES ACT 2005 80
59 Definitions 80
60 Procedure on appeals to County Court or Supreme Court 81
61 DPP reference 83
62 Children to be proceeded against by summons 83
63 Child to be brought before Court or bail justice 83
64 Referral to Secretary 83
65 Adjournment of criminal proceeding when therapeutic
treatment order made 84
66 Division heading amended 84
67 Section heading amended 84
68 Part 5.3 amended 84
69 Substitution of Part 5.4 87
PART 5.4--APPEALS 87
Division 1--Appeal by offender to the County Court or
Trial Division of the Supreme Court 87
424 Right of appeal 87
425 How appeal is commenced 87
426 Determination of appeal 89
Division 2--Appeal by DPP against sentence 91
427 DPP's right of appeal against sentence 91
428 How appeal is commenced 91
429 Determination of DPP appeal 92
Division 3--Procedure on appeals from Children's Court 94
430 Late notice of appeal deemed to be application for
leave to appeal 94
430A Stay of order 95
430B Bail pending appeal 95
430C Abandonment of appeal 96
430D Appellant's failure to appear 97
430E Respondent's failure to appear on appeal by DPP 99
430F One notice of appeal for 2 or more sentences 100
430G Appeal to County Court or Trial Division of Supreme
Court authorised by other Acts 100
Division 4--Reports 101
430H Application of Division 101
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Subdivision 1--Pre-sentence reports 101
430I Court may order pre-sentence report 101
430J Notification of requirement to submit pre-sentence
report 103
430K Pre-sentence report to be filed with court 103
430L Attendance at appellate court of author of pre-sentence
report 103
430M Disputed pre-sentence report 105
Subdivision 2--Group conference reports 105
430N Group conference report 105
430O Group conference report to be filed with court 106
Division 5--Appeal to Supreme Court on a question of law 107
430P Appeal to Supreme Court on a question of law 107
430Q Appeal on question of law precludes other appeals 108
Division 6--Appeal to Court of Appeal and referral of
point of law to Court of Appeal 109
430R Right of appeal against sentence of detention imposed
on appeal from Children's Court 109
430S How appeal is commenced 109
430T Determination of appeal 110
430U Orders etc. on successful appeal 110
430V Powers and procedure 112
430W DPP may refer point of law to Court of Appeal 112
Division 7--Status of sentence and orders during appeal
period 113
430X Sentence not stayed during appeal period 113
430Y Bail pending appeal 113
430Z Stay of certain orders during appeal period 114
430ZA Execution of order for forfeiture or destruction of
property 114
Division 8--Miscellaneous 115
430ZB Appeal by child under 15 years 115
430ZC Parent may enter into bail 115
430ZD Appeals to be heard in open court 116
430ZE Legal representation 117
430ZF Interpreters 117
430ZG Explanation of and reasons for orders 117
Division 9--Costs on appeal 118
430ZH No costs on appeal or new hearing 118
561330B.I-16/9/2009 vii BILL LA INTRODUCTION 16/9/2009
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70 Establishment of corrective services 118
71 Power of arrest in youth justice centre 118
72 Assignment of magistrates 118
73 Jurisdiction of Criminal Division 119
74 Koori Court (Criminal Division) 120
75 Neighbourhood Justice Division 120
76 Procedural guidelines 120
77 Explanation of and reasons for orders 120
78 Powers of Children's Court 121
79 Process 121
80 Pre-sentence reports 121
81 Witness or other person who has previously appeared in
Children's Court 122
82 Transfer of proceedings 122
83 Powers of Supreme Court or County Court 122
84 Rules 122
85 Supreme Court--limitation of jurisdiction 123
86 New sections 609 and 610 inserted 123
609 Transitional provision--Criminal Procedure
Act 2009 123
610 Transitional provision--Criminal Procedure
Amendment (Consequential and Transitional
Provisions) Act 2009 124
87 Amendment of Schedules 125
PART 4--AMENDMENT OF PUBLIC PROSECUTIONS
ACT 1994 126
88 Definitions 126
89 Chief Crown Prosecutor is responsible to Director 127
90 Functions of Director 128
91 Power to discontinue criminal proceedings 128
92 Delegation 128
93 Functions of Crown Prosecutors 129
94 Functions of Solicitor for Public Prosecutions 129
95 Outcome of trial cannot be challenged on ground relating to
special decision 129
96 Substitution of section 49 130
49 Supreme Court--limitation of jurisdiction 130
PART 5--CONSEQUENTIAL AND OTHER AMENDMENTS
TO OTHER ACTS 131
97 Consequential and other amendments 131
561330B.I-16/9/2009 viii BILL LA INTRODUCTION 16/9/2009
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PART 6--REPEAL 132
98 Repeal of Act 132
__________________
SCHEDULE--Consequential and Other Amendments 133
1 Aboriginal Heritage Act 2006 133
2 Aboriginal Lands Act 1970 133
3 Accident Compensation Act 1985 133
4 Accident Towing Services Act 2007 133
5 Administrative Law Act 1978 134
6 Agricultural and Veterinary Chemicals (Victoria)
Act 1994 134
7 Alcoholics and Drug-dependent Persons Act 1968 134
8 Appeal Costs Act 1998 135
9 Australian Crime Commission (State Provisions)
Act 2003 135
10 Australian Grands Prix Act 1994 135
11 Bail Act 1977 136
12 Biological Control Act 1986 139
13 Building Act 1993 139
14 Bus Safety Act 2009 139
15 Business Franchise (Tobacco) Act 1974 141
16 Casino Control Act 1991 141
17 Cemeteries and Crematoria Act 2003 141
18 Charter of Human Rights and Responsibilities Act 2006 141
19 Children's Services Act 1996 141
20 Classification (Publications, Films and Computer Games)
(Enforcement) Act 1995 142
21 Collusive Practices Act 1965 144
22 Competition Policy Reform (Victoria) Act 1995 145
23 Confiscation Act 1997 145
24 Conservation, Forests and Lands Act 1987 151
25 Constitution Act 1975 152
26 Construction Industry Long Service Leave Act 1997 152
27 Control of Weapons Act 1990 152
28 Conveyancers Act 2006 152
29 Co-operatives Act 1996 152
30 Coroners Act 2008 152
31 Corporations (Ancillary Provisions) Act 2001 153
32 Corporations (Victoria) Act 1990 153
33 Corrections Act 1986 154
34 Country Fire Authority Act 1958 154
35 County Court Act 1958 154
36 Court Security Act 1980 156
37 Credit (Administration) Act 1984 157
38 Credit Act 1984 157
561330B.I-16/9/2009 ix BILL LA INTRODUCTION 16/9/2009
Clause Page
39 Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 157
40 Crimes Act 1958 172
41 Crown Land (Reserves) Act 1978 176
42 Crown Proceedings Act 1958 176
43 Dairy Act 2000 176
44 Dangerous Goods Act 1985 176
45 Domestic Animals Act 1994 179
46 Domestic Building Contracts Act 1995 179
47 Drugs, Poisons and Controlled Substances Act 1981 179
48 Education and Training Reform Act 2006 180
49 Electricity Industry Act 2000 180
50 Environment Protection Act 1970 180
51 Equal Opportunity Act 1995 182
52 Equipment (Public Safety) Act 1994 182
53 Estate Agents Act 1980 183
54 Evidence Act 1958 183
55 Evidence Act 2008 187
56 Fair Trading Act 1999 193
57 Family Violence Protection Act 2008 194
58 Fisheries Act 1995 195
59 Food Act 1984 195
60 Forests Act 1958 197
61 Fuel Prices Regulation Act 1981 197
62 Gambling Regulation Act 2003 197
63 Gas Industry Act 2001 198
64 Goods Act 1958 199
65 Health Professions Registration Act 2005 199
66 Heritage Act 1995 199
67 Housing Act 1983 199
68 Impounding of Livestock Act 1994 199
69 Imprisonment of Fraudulent Debtors Act 1958 200
70 Infringements Act 2006 200
71 Interpretation of Legislation Act 1984 202
72 Judicial Proceedings Reports Act 1958 202
73 Juries Act 2000 203
74 Land Act 1958 203
75 Landlord and Tenant Act 1958 203
76 Legal Aid Act 1978 203
77 Legal Profession Act 2004 204
78 Liquor Control Reform Act 1998 204
79 Livestock Disease Control Act 1994 204
80 Local Government Act 1989 205
81 Long Service Leave Act 1992 205
82 Magistrates' Court Act 1989 205
83 Major Sporting Events Act 2009 213
84 Marine Act 1988 214
561330B.I-16/9/2009 x BILL LA INTRODUCTION 16/9/2009
Clause Page
85 Marine Safety Legislation (Lakes Hume and Mulwala)
Act 2001 215
86 Mental Health Act 1986 215
87 Mines Act 1958 215
88 Motor Car Traders Act 1986 216
89 New Tax System Price Exploitation Code (Victoria)
Act 1999 216
90 Occupational Health and Safety Act 2004 216
91 Petroleum (Submerged Lands) Act 1982 220
92 Plant Health and Plant Products Act 1995 220
93 Police Regulation Act 1958 220
94 Pollution of Waters by Oil and Noxious Substances
Act 1986 221
95 Prevention of Cruelty to Animals Act 1986 221
96 Prisoners (Interstate Transfer) Act 1983 222
97 Prohibition of Human Cloning for Reproduction
Act 2008 222
98 Prostitution Control Act 1994 222
99 Public Health and Wellbeing Act 2008 222
100 Radiation Act 2005 222
101 Rail Safety Act 2006 223
102 Research Involving Human Embryos Act 2008 225
103 Residential Tenancies Act 1997 225
104 Road Legislation Amendment Act 2009 225
105 Road Management Act 2004 225
106 Road Safety Act 1986 225
107 Sale of Land Act 1962 228
108 Second-Hand Dealers and Pawnbrokers Act 1989 228
109 Securities Industry Act 1975 229
110 Sentencing Act 1991 229
111 Serious Sex Offenders Monitoring Act 2005 240
112 Sex Offenders Registration Act 2004 242
113 Shop Trading Reform Act 1996 242
114 State Electricity Commission Act 1958 242
115 Summary Offences Act 1966 243
116 Supreme Court Act 1986 244
117 Surveillance Devices Act 1999 245
118 Sustainable Forests (Timber) Act 2004 245
119 Terrorism (Community Protection) Act 2003 245
120 Tobacco Act 1987 246
121 Trade Measurement Act 1995 246
122 Trade Unions Act 1958 246
123 Transport Accident Act 1986 247
124 Transport Act 1983 248
125 Travel Agents Act 1986 251
126 Trustee Act 1958 251
127 Trustee Companies Act 1984 251
561330B.I-16/9/2009 xi BILL LA INTRODUCTION 16/9/2009
Clause Page
128 Unclaimed Money Act 2008 252
129 Utility Meters (Metrological Controls) Act 2002 252
130 Victims' Charter Act 2006 252
131 Victorian Civil and Administrative Tribunal Act 1998 252
132 Vital State Projects Act 1976 253
133 Water Act 1989 253
134 Water Industry Act 1994 253
135 Wildlife Act 1975 254
136 Working with Children Act 2005 254
137 Wrongs Act 1958 255
ENDNOTES 256
561330B.I-16/9/2009 xii BILL LA INTRODUCTION 16/9/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Criminal Procedure Amendment
(Consequential and Transitional
Provisions) Bill 2009
A Bill for an Act to make consequential and other amendments in
relation to the Criminal Procedure Act 2009 and to provide
transitional arrangements for the commencement of that Act and for
other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to make consequential amendments as a
5 result of the Criminal Procedure Act 2009;
and
(b) to provide transitional arrangements for the
commencement of that Act; and
561330B.I-16/9/2009 1 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 1--Preliminary
s. 2
(c) to amend that Act to provide for witnesses in
sexual offence or family violence cases; and
(d) to make other miscellaneous amendments
relating to criminal procedure.
5 2 Commencement
(1) This Part and Parts 2 and 6 come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) Subject to subsection (3), the remaining
10 provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in subsection (2) does
not come into operation before 1 January 2011, it
comes into operation on that day.
__________________
561330B.I-16/9/2009 2 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 3
PART 2--AMENDMENT OF CRIMINAL PROCEDURE
ACT 2009
3 Definitions
In section 3 of the Criminal Procedure Act See:
Act No.
5 2009-- 7/2009.
LawToday:
(a) in the definition of conviction, for www.
legislation.
"Chapters 6 and 8" substitute "Chapter 6"; vic.gov.au
(b) the definition of prison officer is repealed;
(c) in the note at the foot of the definition of
10 sentence, for "to make any sentencing order
which the Children's Court may make"
substitute "to impose any sentence which
the Children's Court may impose";
(d) insert the following definitions--
15 "evidence in support of alibi means evidence
tending to show that by reason of the
presence of the accused at a particular
place or in a particular area at a
particular time the accused was not, or
20 was unlikely to have been, at the place
where the offence is alleged to have
been committed at the time of its
alleged commission;
notice to appear means a notice served under
25 section 21;
special hearing means a hearing conducted
under section 370;".
4 Notice to accompany summons or warrant
In section 13 of the Criminal Procedure Act
30 2009--
(a) after "summons to answer to a charge" insert
"issued under section 12 or 14";
561330B.I-16/9/2009 3 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 5
(b) for paragraph (b)(i) substitute--
"(i) if the charge is for an indictable offence
that may not be heard and determined
summarily or the charge-sheet contains
5 a request for a committal proceeding, a
summary of Part 4.4; and
(ii) if the charge is for any other indictable
offence or a summary offence, a
summary of Division 2 of Part 3.2;
10 and";
(c) in paragraph (b)(ii), for "(ii)" substitute
"(iii)";
(d) in paragraph (b)(iii), for "(iii)" substitute
"(iv)".
15 5 Personal service of summons
In section 16(b) of the Criminal Procedure Act
2009, for "regulations" substitute "rules of court".
6 When an indictable offence may be heard and
determined summarily
20 In section 29(2)(b) of the Criminal Procedure
Act 2009, for "sentencing orders" substitute
"sentences".
7 Division heading substituted
For the heading to Division 4 of Part 3.2 of
25 Chapter 3 of the Criminal Procedure Act 2009
substitute--
"Division 4--Mention hearing, summary case
conference and contest mention hearing".
8 Admissibility of evidence in absence of accused
30 In sections 83(1)(a), 83(4), 84(1)(a) and 84(6)
of the Criminal Procedure Act 2009, for
"section 80" substitute "section 25(1) or 80".
561330B.I-16/9/2009 4 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 9
9 Rules with respect to statements
In the Criminal Procedure Act 2009--
(a) in section 38(1), omit "(1)";
(b) section 38(2) is repealed;
5 (c) the note at the foot of section 38(2) is
repealed;
(d) at the foot of section 38 insert--
"Note
Section 414 provides for acknowledgment of false
10 statements.";
(e) section 47(4) is repealed;
(f) the note at the foot of section 47(4) is
repealed;
(g) at the foot of section 47 insert--
15 "Note
Section 414 provides for acknowledgment of false
statements.";
(h) the note at the foot of section 49(5) is
repealed;
20 (i) at the foot of section 49 insert--
"Note
Section 414 provides for acknowledgment of false
statements.";
(j) section 112(4) is repealed;
25 (k) at the foot of section 112 insert--
"Note
Section 414 provides for acknowledgment of false
statements.".
561330B.I-16/9/2009 5 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 10
10 Contents of hand-up brief
In section 110 of the Criminal Procedure Act
2009--
(a) omit "(1)";
5 (b) in paragraph (d)(vi), for "video recording of
a kind referred to in section 37B(2) of the
Evidence Act 1958" substitute "audiovisual
recording of a kind referred to in
section 367,".
10 11 Rules with respect to recordings
In section 113(1) of the Criminal Procedure Act
2009--
(a) for "video" substitute "audiovisual";
(b) for "section 37B of the Evidence Act 1958"
15 substitute "Division 5 of Part 8.2".
12 Contents of plea brief
At the foot of section 117 of the Criminal
Procedure Act 2009 insert--
"Note
20 Section 414 provides for acknowledgment of false
statements.".
13 Committal mention hearing
In section 125(1)(a) of the Criminal Procedure
Act 2009, for "section 141 or 142" substitute
25 "section 141, 142 or 143".
14 Recording of evidence
In the Criminal Procedure Act 2009--
(a) in section 130(1), in the definition of
recording, for "video" substitute
30 "audiovisual";
(b) in section 139(3), for "a video" substitute
"an audiovisual".
561330B.I-16/9/2009 6 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 15
15 On committing accused for trial
For section 144(2)(b)(ii) of the Criminal
Procedure Act 2009 substitute--
"(ii) the provisions of sections 342, 344 and 346,
5 if relevant; and".
16 Evidence taken after committal
(1) In section 150(2)(c) of the Criminal Procedure
Act 2009, for "section 37B of the Evidence Act
1958" substitute "Division 5 of Part 8.2".
10 (2) After section 150(4) of the Criminal Procedure
Act 2009 insert--
"(5) The Magistrates' Court must not make an
order under subsection (1) in respect of a
witness referred to in section 123.".
15 (3) For section 152(3) of the Criminal Procedure
Act 2009 substitute--
"(3) Without limiting subsection (2), the
Magistrates' Court may order that the
accused may cross-examine the person
20 giving evidence under this section,
irrespective of who calls the person as a
witness.".
17 Special mention hearing
In section 153(c) of the Criminal Procedure Act
25 2009, for "section 142" substitute "section 141,
142 or 143".
561330B.I-16/9/2009 7 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 18
18 Transfer of charges to Magistrates' Court
After section 168(3) of the Criminal Procedure
Act 2009 insert--
"(4) If an order is made under this section, the
5 transferring court may--
(a) order that the accused appear before the
Magistrates' Court on a specified date;
or
(b) if the accused is a natural person,
10 remand the accused in custody, or grant
bail, to appear before the Magistrates'
Court on a specified date; or
(c) in the case of a corporate accused, order
the accused to appear, by a
15 representative or a legal practitioner,
before the Magistrates' Court on a
specified date.".
19 Powers of court at directions hearing
In section 181(2)(d) of the Criminal Procedure
20 Act 2009, for "section 41G of the Evidence Act
1958" substitute "Division 6 of Part 8.2".
20 Order for legal representation for accused
In section 197(7) of the Criminal Procedure Act
2009, for "section 17A of the Supreme Court
25 Act 1986" substitute "this or any other Act".
21 Manner of giving evidence
In section 232(3) of the Criminal Procedure
Act 2009, for "section 41G and" substitute
"Division 6 of Part 8.2 of this Act,".
561330B.I-16/9/2009 8 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 22
22 Determination of appeal
At the foot of section 256 of the Criminal
Procedure Act 2009 insert--
"Note
5 See the definition of sentence in section 3. This includes
the recording of a conviction.".
23 Abandonment of appeal
(1) For section 266(1) of the Criminal Procedure
Act 2009 substitute--
10 "(1) Subject to subsections (2) and (3), an appeal
to the County Court may be abandoned by
filing a notice of abandonment of appeal, in
the form prescribed by the rules of the
County Court, with the County Court.".
15 (2) For section 266(3) of the Criminal Procedure
Act 2009 substitute--
"(3) An appellant who has been sentenced to a
term of imprisonment or detention but who
is not in custody may abandon the appeal
20 by--
(a) surrendering to the registrar of the
County Court; and
(b) immediately filing a notice of
abandonment of appeal in accordance
25 with subsection (1).
(3A) If a person surrenders to the registrar of the
County Court in accordance with subsection
(3), the registrar may issue, in accordance
with the Magistrates' Court Act 1989, a
30 warrant to imprison the person.".
(3) In section 266(4) of the Criminal Procedure Act
2009 omit "in accordance with subsection (2) or
the rules of the County Court".
561330B.I-16/9/2009 9 BILL LA INTRODUCTION 16/9/2009
Criminal Procedure Amendment (Consequential and Transitional Provisions)
Bill 2009
Part 2--Amendment of Criminal Procedure Act 2009
s. 24
(4) In section 266(5)(a) of the Criminal Procedure
Act 2009, for "the order of the Magistrates' Court"
substitute "the sentence of the Magistrates' Court
is reinstated and".
5 24 Failure to appear on appeal
(1) In section 267(2)(a) of the Criminal Procedure
Act 2009, for "the order of the Magistrates' Court"
substitute "the sentence of the Magistrates' Court
is reinstated and".
10 (2) After section 267(6) of the Criminal Procedure
Act 2009 insert--
"(7) On the reinstatement of an appeal under
subsection (6), the appeal operates as a stay
of the sentence (but not a conviction in
15 respect of the sentence) when--
(a) if required, the appellant signs the
undertaking referred to in subsection
(6)(b); and
(b) if the appellant is in custody because of
20 the sentence appealed against and bail
is granted under section 265, the
appellant enters bail.
(8) Subsection (7) is subject to section 29 of the
Road Safety Act 1986.".
25 (3) In section 268(1) of the Criminal Procedure Act
2009--
(a) for "section 257" substitute "section 257
or 260";
(b) for "section 258" substitute "section 258
30 or 261, as the case may be".
(4) In section 268(2) of the Criminal Procedure Act
2009, for "section 258" substitute "section 258
or 261, as the case may be".
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Part 2--Amendment of Criminal Procedure Act 2009
s. 25
25 Appeal against conviction
(1) In section 277(2) of the Criminal Procedure Act
2009, for "appear" substitute "attend".
(2) At the foot of section 277(2) of the Criminal
5 Procedure Act 2009 insert--
"Note
Section 323 enables the Court of Appeal to remand the
appellant in custody or grant bail pending a new trial.".
26 Determination of application for leave to appeal
10 (1) In the heading to section 280 of the Criminal
Procedure Act 2009, after "appeal" insert
"under section 278".
(2) In section 280(2) of the Criminal Procedure Act
2009, after "refused" insert "in relation to any
15 ground of appeal".
27 New section 284A inserted
After section 284 of the Criminal Procedure Act
2009 insert--
"284A Determination of application for leave to
20 appeal under section 283
(1) This section applies to an application for
leave to appeal under section 283 that is
heard by a single Judge of Appeal under
section 315(1).
25 (2) An application for leave to appeal under
section 283 may be refused in relation to any
ground of appeal if there is no reasonable
prospect that the Court of Appeal would
impose a less severe sentence than the
30 sentence imposed by the County Court.
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Part 2--Amendment of Criminal Procedure Act 2009
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(3) An application may be refused under
subsection (2) even if the Judge of Appeal
considers that there may be a reasonably
arguable ground of appeal.
5 Note
Section 315(2) entitles an unsuccessful applicant to have the
application determined by the Court of Appeal.".
28 Determination of Crown appeal
In section 289(2) of the Criminal Procedure Act
10 2009, for "whether there is an error in the sentence
imposed" substitute "whether an appeal should be
allowed".
29 Crown appeal against sentence
(1) Section 294(3) of the Criminal Procedure Act
15 2009 is repealed.
(2) At the foot of section 294 of the Criminal
Procedure Act 2009 insert--
"Note
Section 321 provides for the effect on sentence of new
20 evidence.".
30 Interlocutory appeals
(1) For section 296(3) of the Criminal Procedure
Act 2009 substitute--
"(3) A copy of the notice of application for
25 review must be served on the respondent in
accordance with section 392 or 394, as the
case requires, within the relevant period
specified in subsection (2) for filing the
notice.".
30 (2) For section 298(2) of the Criminal Procedure
Act 2009 substitute--
"(2) A copy of the notice of application for leave
to appeal must be served on the respondent
in accordance with section 392 or 394, as the
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Part 2--Amendment of Criminal Procedure Act 2009
s. 31
case requires, within the relevant period
specified in subsection (1) for filing the
notice.".
31 DPP may refer point of law to Court of Appeal
5 In section 308(3) of the Criminal Procedure Act
2009, for "Taxing Master of the Supreme Court"
substitute "Costs Court".
32 Stay of certain orders during appeal period
In section 311(3) of the Criminal Procedure Act
10 2009, for "quashed" substitute "set aside".
33 Extension of time for filing or serving notice of
appeal or notice of application for leave to appeal
In section 313(1)(a) of the Criminal Procedure
Act 2009 omit "or under section 14A or 24AA of
15 the Crimes (Mental Impairment and Unfitness
to be Tried) Act 1997".
34 Powers of single Judge of Appeal
(1) In section 315(1) of the Criminal Procedure Act
2009--
20 (a) in paragraphs (c) and (d), for "given"
substitute "filed and served";
(b) in paragraph (f), for "sentence." substitute
"sentence;";
(c) after paragraph (f) insert--
25 "(g) to call on a court and a respondent to
show cause why a question of law
should not be reserved for
determination by the Court of Appeal.".
(2) In section 315(2) of the Criminal Procedure Act
30 2009, after "(1)" insert "in relation to any ground
of appeal".
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35 Bail following appeal
At the foot of section 323 of the Criminal
Procedure Act 2009 insert--
"Note
5 Section 277(2) requires the Court of Appeal to order that the
appellant appear on a specified date for the new trial.".
36 Petition for mercy
For the note at the foot of section 327 of the
Criminal Procedure Act 2009 substitute--
10 "Notes
1 Chapter 8 contains general provisions that apply to all
criminal proceedings.
2 Clause 11 of Schedule 4 contains transitional
provisions.".
15 37 New section 336A inserted
After section 336 of the Criminal Procedure Act
2009 insert--
"336A Victim who is a witness entitled to be
present in court
20 (1) In a criminal proceeding where a victim of
the offence is a witness in the proceeding,
the court may order the victim to leave the
courtroom until required to give evidence
only if the court considers it appropriate to
25 do so.
(2) Nothing in this section prevents the court
from ordering a victim who is a witness to
leave the courtroom at any time after giving
evidence.".
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Part 2--Amendment of Criminal Procedure Act 2009
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38 Court may act on application or on own motion
At the end of section 337 of the Criminal
Procedure Act 2009 insert--
"(2) Unless the context otherwise requires, a
5 power or discretion referred to in subsection
(1) includes a power or discretion to revoke
or vary a decision or order made in the
exercise of that power or discretion.".
39 Service of documents
10 (1) After section 340(3)(d) of the Criminal
Procedure Act 2009 insert--
"(da) if the DPP has facilities for the reception of
documents in a document exchange, by
delivering a copy of the document addressed
15 to the DPP into those facilities; or".
(2) After section 340(3) of the Criminal Procedure
Act 2009 insert--
"(4) If a document is delivered into the facilities
of a document exchange in accordance with
20 subsection (3)(da), the day of service of the
document is taken to be--
(a) the day following the day on which it is
so delivered; or
(b) if the document is delivered on a
25 Friday, the following Monday--
or on any other day that may be proved.".
(3) After section 342(b) of the Criminal Procedure
Act 2009 insert--
"(ba) if the person to be served is represented by a
30 legal practitioner who has facilities for the
reception of documents in a document
exchange, by delivering a copy of the
document addressed to the legal practitioner
into those facilities; or".
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(4) At the end of section 342 of the Criminal
Procedure Act 2009 insert--
"(2) If a document is delivered into the facilities
of a document exchange in accordance with
5 subsection (1)(ba), the day of service of the
document is taken to be--
(a) the day following the day on which it is
so delivered; or
(b) if the document is delivered on a
10 Friday, the following Monday--
or on any other day that may be proved.".
40 Notice to appear--costs
At the end of section 350 of the Criminal
Procedure Act 2009 insert--
15 "(2) If a notice to appear lapses under section
22(1) and notice is not given in accordance
with section 23, the Magistrates' Court may
award costs against the member of the police
force or public official who served the notice
20 as if the notice to appear were a criminal
proceeding in the Magistrates' Court.".
41 Issue of warrant to arrest
In section 359(4) of the Criminal Procedure Act
2009, for "appear" substitute "attend".
25 42 Transfer of charge to court with jurisdiction
At the end of section 361 of the Criminal
Procedure Act 2009 insert--
"(2) If an order is made under this section, the
transferring court may--
30 (a) order that the accused appear before the
court to which the charge is transferred
on a specified date; or
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Part 2--Amendment of Criminal Procedure Act 2009
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(b) if the accused is a natural person,
remand the accused in custody, or grant
bail, to appear before the court to which
the charge is transferred on a specified
5 date; or
(c) in the case of a corporate accused, order
the accused to appear, by a
representative or a legal practitioner,
before the court to which the charge is
10 transferred on a specified date.".
43 Regulations
After section 367(1)(e) of the Criminal
Procedure Act 2009 insert--
"(ea) the making, use, possession, storage, access
15 to and destruction of an audio or audiovisual
recording referred to in Chapter 4 or 5 or
Part 8.2;".
44 New section 14A in Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
20 In section 370 of the Criminal Procedure Act
2009, in proposed new section 14A(2) of the
Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997, for "section 313 of the
Criminal Procedure Act 2009" substitute
25 "section 76C".
45 New section 24AA in Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997
In section 371 of the Criminal Procedure Act
2009--
30 (a) in proposed new section 24AA(1) of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997--
(i) for "an accused" substitute "a person";
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(ii) for "the accused" substitute "the
person";
(b) in proposed new section 24AA(2) of the
Crimes (Mental Impairment and
5 Unfitness to be Tried) Act 1997, for
"section 313 of the Criminal Procedure Act
2009" substitute "section 76C";
(c) in proposed new section 24AA(5) of the
Crimes (Mental Impairment and
10 Unfitness to be Tried) Act 1997, for "the
accused" (wherever occurring) substitute
"the appellant".
46 Joint committals--Magistrates' Court Act 1989
In section 373 of the Criminal Procedure Act
15 2009--
(a) in proposed new section 25(3) of the
Magistrates' Court Act 1989, for
"defendant" (wherever occurring) substitute
"accused";
20 (b) in proposed new section 25(4) of the
Magistrates' Court Act 1989--
(i) for "defendant" substitute "accused";
(ii) for "defendants" substitute "accused";
(c) in proposed new section 25(8)(b) of the
25 Magistrates' Court Act 1989, for
"defendant" substitute "accused".
47 Commencement of proceedings in Children's Court
In section 376 of the Criminal Procedure Act
2009, in the heading to proposed new section
30 344A of the Children, Youth and Families Act
2005, for "charge" substitute "charge-sheet".
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Part 2--Amendment of Criminal Procedure Act 2009
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48 Joint committals--Children, Youth and Families
Act 2005
In section 377 of the Criminal Procedure Act
2009--
5 (a) in proposed new section 516A of the
Children, Youth and Families Act 2005,
for "defendant" (wherever occurring)
substitute "accused";
(b) in proposed new section 516A(1)(b)(ii) of
10 the Children, Youth and Families Act
2005, after "manslaughter," insert "child
homicide, defensive homicide,";
(c) in proposed new section 516A(2)(e) of the
Children, Youth and Families Act 2005,
15 for "defendants" substitute "accused".
49 Statute law revision
In the Criminal Procedure Act 2009--
(a) in section 41(1)(d)(iii), for "charge."
substitute "charge; and";
20 (b) in the heading to section 69, for "no case"
substitute "no-case";
(c) in section 69(2), for "no case" substitute
"no-case";
(d) in section 72(3), for "to do so" substitute
25 "to do so,";
(e) in section 118(1), for "informant," substitute
"informant";
(f) in section 118(3)(a), for "informant,"
substitute "informant";
30 (g) in section 120(2), for "informant," substitute
"informant";
(h) in section 150(4), for "section" substitute
"sections";
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Part 2--Amendment of Criminal Procedure Act 2009
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(i) in note 1 at the foot of section 185, for
"Sections" substitute "Section";
(j) in section 212(d), for "(c)," substitute "(c)";
(k) in section 229(3), for "no case" substitute
5 "no-case";
(l) in section 242(6), for "made" substitute
"imposed";
(m) in the heading to section 264, for "order"
substitute "sentence";
10 (n) in section 272(5), after "copy" insert
"of the";
(o) in section 339(2)(b) omit "by";
(p) in section 374(1)(i), for "proceeding,"
substitute "proceeding";
15 (q) in section 378, in proposed new section
15B(2) of the Appeal Costs Act 1998, for
"accused" (wherever occurring) substitute
"respondent".
50 New Part 8.2 inserted
20 After Part 8.1 of Chapter 8 of the Criminal
Procedure Act 2009 insert--
"PART 8.2--WITNESSES
Division 1--Guiding principles
338 Guiding principles
25 It is the intention of Parliament that in
interpreting and applying this Part in any
criminal proceeding that relates (wholly or
partly) to a charge for a sexual offence,
courts are to have regard to the fact that--
30 (a) there is a high incidence of sexual
violence within society; and
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Part 2--Amendment of Criminal Procedure Act 2009
s. 50
(b) sexual offences are significantly under-
reported; and
(c) a significant number of sexual offences
are committed against women, children
5 and other vulnerable persons including
persons with a cognitive impairment;
and
(d) offenders are commonly known to their
victims; and
10 (e) sexual offences often occur in
circumstances where there is unlikely
to be any physical sign of an offence
having occurred.
Division 2--Evidence concerning complainant
15 339 Application of Division
(1) This Division applies to a criminal
proceeding that relates (wholly or partly) to a
charge for a sexual offence.
(2) This Division applies to all complainants in a
20 criminal proceeding referred to in
subsection (1).
(3) This Division applies despite anything in this
or any other Act or any rule of law to the
contrary.
25 340 Definition
In this Division--
sexual history evidence means evidence that
relates to or tends to establish the fact
that the complainant--
30 (a) was accustomed to engaging in
sexual activities; or
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Part 2--Amendment of Criminal Procedure Act 2009
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(b) had freely agreed to engage in
sexual activity (other than that to
which the charge relates) with the
accused person or another person.
5 341 Prohibition on questions and evidence
concerning complainant's chastity
The court must not allow any questions as to,
or admit any evidence of, the general
reputation of the complainant with respect to
10 chastity.
342 Restriction on questions and evidence
concerning complainant's sexual activities
The complainant must not be cross-
examined, and the court must not admit any
15 evidence, as to the sexual activities (whether
consensual or non-consensual) of the
complainant (other than those to which the
charge relates), without the leave of the
court.
20 343 Admissibility of sexual history evidence
Sexual history evidence is not admissible to
support an inference that the complainant is
the type of person who is more likely to have
consented to the sexual activity to which the
25 charge relates.
344 Application for leave
An application for leave under section 342--
(a) in the case of a summary proceeding,
must be filed with the Magistrates'
30 Court and served on the informant in
accordance with section 392 at least
7 days before the summary hearing;
(b) in the case of a committal proceeding,
must be filed with the Magistrates'
35 Court and served on the informant and
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Part 2--Amendment of Criminal Procedure Act 2009
s. 50
the DPP in accordance with section 392
at least 7 days before the committal
hearing;
(c) in the case of a trial, must be filed with
5 the County Court or the Supreme Court
(as the case requires) and served on the
DPP in accordance with section 392--
(i) at least 14 days before the day on
which the trial is listed to
10 commence; or
(ii) if a special hearing is to be held,
at least 14 days before that
hearing;
(d) in the case of a sentencing hearing,
15 must be filed with the relevant court
and served on the informant or the DPP
(as the case requires) in accordance
with section 392 at least 7 days before
the sentencing hearing is listed to
20 commence.
345 Application for leave out of time
If it is in the interests of justice to do so, the
court may hear and determine an application
for leave under section 342 after the expiry
25 of the relevant time limit specified in
section 344.
346 Contents of application for leave
(1) An application for leave under section 342
must be in writing and set out the matters
30 required by subsection (2) or (3), as the case
requires.
(2) An application for leave to cross-examine
the complainant as to the sexual activities of
the complainant must set out--
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Part 2--Amendment of Criminal Procedure Act 2009
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(a) the initial questions sought to be asked
of the complainant; and
(b) the scope of the questioning sought to
flow from the initial questioning; and
5 (c) how the evidence sought to be elicited
from the questioning has substantial
relevance to facts in issue or why it is
proper matter for cross-examination as
to credit.
10 (3) An application for leave to admit evidence as
to the sexual activities of the complainant
must--
(a) identify the evidence that is sought to
be admitted; and
15 (b) set out how the evidence has substantial
relevance to facts in issue.
347 Waiver of requirement to apply for leave
in writing
If it is in the interests of justice to do so, the
20 court may waive the requirement that an
application for leave under section 342 be
made in writing.
348 Hearing of application for leave
An application for leave under section 342
25 must be heard in the absence of the jury
(if any) and, if the accused so requests, in the
absence of the complainant.
349 Determination of application for leave
during summary hearing, committal
30 proceeding or trial
In the course of a summary hearing,
committal proceeding or trial, the court must
not grant leave under section 342 unless it is
satisfied that the evidence has substantial
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Part 2--Amendment of Criminal Procedure Act 2009
s. 50
relevance to a fact in issue and that it is in
the interests of justice to allow the cross-
examination or to admit the evidence, having
regard to--
5 (a) whether the probative value of the
evidence outweighs the distress,
humiliation and embarrassment that the
complainant may experience as a result
of the cross-examination or the
10 admission of the evidence, in view of
the age of the complainant and the
number and nature of the questions that
the complainant is likely to be asked;
and
15 (b) the risk that the evidence may arouse in
the jury discriminatory belief or bias,
prejudice, sympathy or hostility; and
(c) the need to respect the complainant's
personal dignity and privacy; and
20 (d) the right of the accused to fully answer
and defend the charge.
Note
Section 352 limits the relevance of sexual history
evidence.
25 350 Determination of application for leave
during sentencing hearing
In the course of a sentencing hearing, the
court must not grant leave under section 342
unless it is satisfied that the evidence has
30 substantial relevance to the issue of
appropriate sentence and the offender--
(a) has pleaded guilty to all sexual offences
charged against the offender; or
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Part 2--Amendment of Criminal Procedure Act 2009
s. 50
(b) has been found guilty of all sexual
offences charged against the offender.
Note
Section 352 limits the relevance of sexual history
5 evidence.
351 Court must state reasons if leave granted
(1) If the court grants leave under section 342
it--
(a) must state in writing the reasons for
10 granting leave; and
(b) cause those reasons to be entered in the
records of the court.
(2) The failure of a court to comply with
subsection (1) does not invalidate any order
15 made by it.
352 Limitation on sexual history evidence
Sexual history evidence is not to be
regarded--
(a) as having a substantial relevance to the
20 facts in issue by virtue of any
inferences it may raise as to general
disposition; or
(b) as being proper matter for cross-
examination as to credit unless, because
25 of special circumstances, it would be
likely materially to impair confidence
in the reliability of the evidence of the
complainant.
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Division 3--Cross-examination of protected
witnesses
353 Application of Division
(1) This Division applies to a criminal
5 proceeding that relates (wholly or partly) to a
charge for--
(a) a sexual offence; or
(b) an offence where the conduct
constituting the offence consists of
10 family violence within the meaning of
the Family Violence Protection Act
2008.
(2) This Division applies to a protected witness
in a criminal proceeding referred to in
15 subsection (1).
354 Definitions
In this Division--
family member, in relation to the
complainant or the accused, includes--
20 (a) a person who is or has been
married to the complainant or the
accused; and
(b) a person who has or has had an
intimate personal relationship with
25 the complainant or the accused;
and
(c) a person who is or has been the
parent or step-parent of the
complainant or the accused; and
30 (d) a child who normally or regularly
resides with the complainant or
the accused; and
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(e) a guardian of the complainant or
the accused; and
(f) another person who is or has been
ordinarily a member of the
5 household of the complainant or
the accused;
protected witness means--
(a) the complainant; or
(b) a family member of the
10 complainant; or
(c) a family member of the accused;
or
(d) any other witness whom the court
declares under section 355 to be a
15 protected witness.
355 Court may declare witness to be protected
witness
The court may at any time declare a witness
to be a protected witness.
20 356 Protected witness not to be cross-
examined by accused in person
A protected witness must not be cross-
examined by the accused in person.
357 When accused is not legally represented
25 (1) If the accused is not legally represented, the
court must--
(a) inform the accused and the jury (if any)
that the accused is not permitted
personally to cross-examine a protected
30 witness; and
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(b) ask the accused whether the accused
has sought legal representation for the
cross-examination of a protected
witness; and
5 (c) if satisfied that the accused has not had
a reasonable opportunity to obtain legal
representation, grant an adjournment if
so requested by the accused.
(2) If the accused does not obtain legal
10 representation for the cross-examination of a
protected witness (after being given a
reasonable opportunity to do so), the court
must order Victoria Legal Aid to provide
legal representation for the accused for that
15 purpose.
(3) Despite anything in the Legal Aid Act 1978,
Victoria Legal Aid must provide legal
representation in accordance with an order
under subsection (2).
20 (4) A legal practitioner provided by Victoria
Legal Aid must act in the best interests of the
accused if the accused does not give any
instructions to that legal practitioner.
(5) If the accused refuses the legal
25 representation provided under subsection (3),
or otherwise refuses to co-operate, the court
must warn the accused that the accused will
not be permitted to adduce evidence in
relation to a fact in issue in order to
30 contradict the evidence of a protected
witness unless the evidence on which the
accused intends to rely has been put to the
protected witness during cross-examination.
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358 Jury warning concerning legal
representation for cross-examination
If the accused is only legally represented for
the cross-examination of a protected witness,
5 the trial judge must warn the jury--
(a) that it is routine practice for an
unrepresented accused to obtain or be
provided with legal representation for
the cross-examination of a protected
10 witness; and
(b) that no adverse inference may be drawn
against the accused as a result of the
cross-examination not being conducted
by the accused in person; and
15 (c) that the evidence given under cross-
examination is not to be given any
greater or lesser weight as a result of
the cross-examination not being
conducted by the accused in person.
20 Division 4--Alternative arrangements for
giving evidence
359 Application of Division
(1) This Division applies to a criminal
proceeding that relates (wholly or partly) to a
25 charge for--
(a) a sexual offence; or
(b) an offence where the conduct
constituting the offence consists of
family violence within the meaning of
30 the Family Violence Protection Act
2008.
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(2) This Division applies to all witnesses
(including complainants) in a criminal
proceeding referred to in subsection (1).
(3) This Division applies at any stage of the
5 criminal proceeding, including an appeal or
rehearing.
360 Alternative arrangements for giving
evidence
The court may direct that alternative
10 arrangements be made for the giving of
evidence by a witness, including
arrangements--
(a) permitting the evidence to be given
from a place other than the courtroom
15 by means of closed-circuit television or
other facilities that enable
communication between that place and
the courtroom;
(b) using screens to remove the accused
20 from the direct line of vision of the
witness;
(c) permitting a person, chosen by the
witness and approved by the court for
this purpose, to be beside the witness
25 while the witness is giving evidence,
for the purpose of providing emotional
support to the witness;
(d) permitting only persons specified by
the court to be present while the
30 witness is giving evidence;
(e) requiring legal practitioners not to robe;
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(f) requiring legal practitioners to be
seated while examining or cross-
examining the witness.
Notes
5 1 Section 337(1) enables this direction to be made
by the court on the application of a party or on
its own motion.
2 Section 337(2) provides that this direction may
be varied or revoked.
10 361 Jury warning concerning alternative
arrangements
If the court directs that alternative
arrangements be made for the giving of
evidence by a witness, the trial judge must
15 warn the jury not to draw any inference
adverse to the accused or give the evidence
any greater or lesser weight because of the
making of those arrangements.
362 Evidence given by closed-circuit television
20 or other facilities
(1) This section applies to arrangements referred
to in section 360(a) that are directed to be
made under that section.
(2) Any place outside the courtroom where the
25 witness is permitted to give evidence is taken
to be part of the courtroom while the witness
is there for the purpose of giving evidence.
(3) The court must direct that any evidence
given by the witness is recorded.
30 (4) The court may make any order it considers
appropriate to enable the witness to view any
place or thing, or identify any person or
thing, for the purposes of the proceeding or
the evidence of the witness.
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363 When court must direct use of closed-
circuit television or other facilities for
complainant
If the witness is a complainant, the court
5 must direct that an arrangement referred to in
section 360(a) be made unless--
(a) the prosecution applies for the
complainant to give evidence in the
courtroom; and
10 (b) the court is satisfied that the
complainant--
(i) is aware of the right of the
complainant to give evidence in
another place by closed-circuit
15 television or other facilities; and
(ii) is able and wishes to give
evidence in the courtroom.
364 When court must direct use of screens for
complainant
20 If the witness is a complainant and is to give
evidence in the courtroom, the court must
direct that an arrangement referred to in
section 360(b) be made unless the court is
satisfied that the complainant--
25 (a) is aware of the right of the complainant
to give evidence while screens are used
to remove the accused from the direct
line of vision of the complainant; and
(b) does not wish a screen to be so used.
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365 When court must direct presence of
support person for complainant
(1) If the witness is a complainant, the court
must direct that an arrangement referred to in
5 section 360(c) be made unless the court is
satisfied that the complainant--
(a) is aware of the right of the complainant
to have a support person when giving
evidence; and
10 (b) does not wish to have a support person.
(2) Subsection (1) applies whether the witness is
to give evidence in the courtroom or in
another place.
Division 5--Use of recorded evidence-in-chief
15 of children and cognitively impaired witnesses
in sexual offence and assault matters
366 Application of this Division
(1) This Division applies to a criminal
proceeding (other than a committal
20 proceeding) that relates (wholly or partly) to
a charge for--
(a) a sexual offence; or
(b) an indictable offence which involves an
assault on, or injury or a threat of injury
25 to, a person.
Note
For committal proceedings see Chapter 4.
(2) This Division applies to a witness in a
criminal proceeding referred to in subsection
30 (1) if the witness is--
(a) a person under the age of 18 years; or
(b) a person with a cognitive impairment.
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(3) In this Division, witness means a witness
referred to in subsection (2).
367 Use of recorded evidence-in-chief
A witness may give evidence-in-chief
5 (wholly or partly) in the form of an audio or
audiovisual recording of the witness
answering questions put to him or her by a
person prescribed by the regulations for the
purposes of this section.
10 368 Admissibility of recorded evidence-in-
chief
(1) Subject to subsection (3), a recording
referred to in section 367 is admissible as
evidence in a summary hearing, special
15 hearing or trial in the proceeding as if its
contents were the direct testimony of the
witness if--
(a) a transcript of it was served personally
on the accused in accordance with
20 section 391, or on the legal practitioner
representing the accused in accordance
with section 394--
(i) in the case of a summary
proceeding, at least 14 days before
25 the contest mention hearing or, if
a contest mention hearing is not
held, the summary hearing;
(ii) in the case of a trial, at least
14 days before the day on which
30 the trial is listed to commence or,
if a special hearing is to be held, at
least 14 days before that hearing;
and
(b) the court is satisfied that the accused
35 and the legal practitioner of the accused
were given, in accordance with the
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regulations, a reasonable opportunity to
listen to and, in the case of an
audiovisual recording, view the
recording; and
5 (c) at the summary hearing, special hearing
or trial, the witness--
(i) identifies himself or herself and
attests to the truthfulness of the
contents of the recording; and
10 (ii) is available for cross-examination
and re-examination.
(2) The admissibility of a recording of the
evidence of a person under the age of 18
years is not affected only because the person
15 attains the age of 18 years before the
evidence is presented in a proceeding.
(3) The court may rule as inadmissible the whole
or any part of the contents of a recording.
Division 6--Procedure and rules for children
20 and cognitively impaired complainants
369 Application of Division
(1) This Division applies to a trial in a criminal
proceeding that relates (wholly or partly) to a
charge for a sexual offence.
25 (2) This Division applies to a complainant in a
criminal proceeding referred to in subsection
(1) if, at the time at which the proceeding
commenced, the complainant--
(a) was under the age of 18 years; or
30 (b) had a cognitive impairment.
(3) In the Division, complainant means a
complainant referred to in subsection (2).
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370 Special hearing for pre-recording
evidence
(1) Subject to subsection (2), the whole of the
evidence (including cross-examination and
5 re-examination) of a complainant must be--
(a) given at a special hearing under this
Division and recorded as an audiovisual
recording; and
(b) presented to the court in the form of
10 that recording.
(2) On the application of the prosecution, the
court may direct that subsection (1) is not to
apply and that the complainant is to give
direct testimony in the proceeding if the
15 court is satisfied that the complainant--
(a) is aware of the right of the complainant
to have his or her evidence taken at a
special hearing under this Division and
audiovisually recorded; and
20 (b) is able and wishes to give direct
testimony in the proceeding.
Note
Division 4 provides that the court may make
alternative arrangements for the giving of direct
25 testimony.
371 Time limits for special hearing
(1) If a special hearing is to be held, it must be
held--
(a) within 3 months after the day on which
30 the accused is committed for trial; and
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(b) before the court at which the indictment
is filed.
Note
Section 212 imposes time limits for commencing
5 trials for sexual offences.
(2) The court may extend the time for holding a
special hearing if, because of the existence of
exceptional circumstances, the court
considers that it is in the interests of justice
10 to do so.
(3) The court may extend time under subsection
(2) before or after the time expires.
(4) More than one extension of time may be
granted under subsection (2).
15 372 Conduct of special hearing
(1) At a special hearing--
(a) the accused and his or her legal
practitioner are to be present in the
courtroom;
20 (b) the accused--
(i) is not to be in the same room as
the complainant when the
complainant's evidence is being
taken;
25 (ii) is entitled to see and hear the
complainant while the
complainant is giving evidence
and to have at all times the means
of communicating with his or her
30 legal practitioner;
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(c) no person, other than a person
authorised by the court, is to be present
in the courtroom or the same room as
the complainant when the complainant's
5 evidence is being taken;
(d) the evidence of the complainant is to be
given by means of closed-circuit
television or other facilities that enable
communication between the room in
10 which the complainant is present and
the courtroom;
(e) except as provided by this Division, the
usual rules of evidence apply.
(2) The room in which the complainant gives
15 evidence is taken to be part of the courtroom
while the complainant is there for the
purpose of giving evidence.
373 Form in which recording of special
hearing is to be tendered
20 (1) A recording referred to in section 370(1) that
is tendered as evidence by the prosecution
must be the best available record, or be
comprised of the best available records, of
the evidence of the complainant.
25 (2) In subsection (1)--
the best available record of the evidence, or
any part of the evidence, means an
audiovisual recording of the evidence.
(3) In exceptional circumstances and having
30 regard to whether the accused would be
unfairly prejudiced, the court may admit as
evidence an audio recording of the evidence,
or any part of the evidence, if an audiovisual
recording of the evidence is not available.
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374 Admissibility of evidence from special
hearing
(1) In this section--
recording means a recording referred to in
5 section 370(1).
(2) Subject to subsection (3), a recording is
admissible in evidence as if its contents were
the direct testimony of the complainant--
(a) in the proceeding; and
10 (b) unless the relevant court otherwise
orders, in--
(i) any new trial of, or appeal from,
the proceeding; or
(ii) another proceeding in the same
15 court for the charge for a sexual
offence or a charge for a related
offence; or
(iii) a civil proceeding arising from the
same facts as those on which the
20 charge for a sexual offence is
founded.
(3) The court may rule as inadmissible the whole
or any part of the contents of a recording
and, if so, the court may direct that the
25 recording be edited or altered to delete any
part of it that is inadmissible.
Note
A party may apply for a ruling under subsection (3):
section 337.
30 (4) Subject to subsection (3), the whole of a
recording must be heard by the court.
(5) The admissibility of a recording of the
evidence of a person under the age of
18 years is not affected only because the
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person attains the age of 18 years before the
evidence is presented in a proceeding.
(6) Subject to section 376(3), if under this
section a recording is admitted into evidence
5 in a proceeding, the complainant is not
required to attend the proceeding unless
required to do so for cross-examination or
re-examination.
375 Jury warning as to recording of special
10 hearing
If a recording of a special hearing is admitted
into evidence under section 374, the trial
judge must warn the jury--
(a) that it is routine practice for the
15 evidence of a complainant who is under
the age of 18 years or has a cognitive
impairment to be recorded at a special
hearing before the trial; and
(b) that no adverse inference may be drawn
20 against the accused as a result of the
evidence being recorded; and
(c) that the evidence of the complainant is
not to be given any greater or lesser
weight as a result of the evidence being
25 recorded.
376 Cross-examination of complainant
(1) A complainant whose evidence is recorded
under section 370 cannot be cross-examined
or re-examined without leave.
30 (2) A court must not grant leave to cross-
examine a complainant referred to in
subsection (1) unless the court is satisfied
that--
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(a) the accused is seeking leave because of
becoming aware of a matter of which
the accused could not reasonably have
been aware at the time of the recording;
5 or
(b) if the complainant were giving direct
testimony in the proceeding, the
complainant could be recalled, in the
interests of justice, to give further
10 evidence; or
(c) it is otherwise in the interests of justice
to permit the complainant to be cross-
examined or re-examined.
(3) If leave is granted under subsection (2), the
15 complainant must attend the proceeding to
be cross-examined or re-examined.
377 Exception to hearsay rule--previous
representations made by complainant
under 18 years
20 (1) In this section--
asserted fact has the same meaning as in the
Evidence Act 2008;
hearsay rule has the same meaning as in the
Evidence Act 2008;
25 previous representation has the same
meaning as in the Evidence Act 2008.
(2) This section applies in a criminal proceeding
that relates (wholly or partly) to a charge for
a sexual offence if a complainant under the
30 age of 18 years who made a previous
representation is available to give evidence
about an asserted fact or the complainant's
credibility is relevant.
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(3) Subject to subsection (4), if a complainant
has been or is to be called to give evidence,
the hearsay rule does not apply to evidence
to support an asserted fact or the
5 complainant's credibility that is given by--
(a) the complainant; or
(b) a person who saw, heard or otherwise
perceived the representation being
made.
10 (4) Subsection (3) does not apply unless the
court is satisfied that the evidence is relevant
to a fact in issue and is sufficiently probative,
having regard to the nature and content of
the representation and the circumstances in
15 which it was made.
(5) A witness has personal knowledge of the
asserted fact if his or her knowledge of that
fact was, or might reasonably be supposed to
have been, based on something that the
20 person saw, heard or otherwise perceived,
other than a previous representation made by
another person about the fact.
(6) Evidence of the kind referred to in
subsection (3) is admissible to support the
25 credibility of the complainant as a witness.
(7) Nothing in this section takes away from or
limits any discretion a court has to exclude
evidence.
Division 7--Admission of recorded evidence of
30 complainant in sexual offence matters
378 Application of Division
(1) This Division applies to a criminal
proceeding that relates (wholly or partly) to a
charge for a sexual offence.
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(2) This Division applies to a complainant in a
criminal proceeding referred to in subsection
(1), other than a complainant whose evidence
has been taken at a special hearing under
5 Division 6.
(3) This Division applies to a recording of the
evidence (including cross-examination and
re-examination) of a complainant given
during a trial in a criminal proceeding
10 referred to in subsection (1).
(4) If the jury is discharged without verdict
before a complainant completes his or her
evidence, this Division applies to a recording
of the partial evidence of the complainant.
15 (5) In this Division--
complainant means a complainant referred
to in subsection (2);
recording means a recording referred to in
subsection (3) or (4).
20 379 Admissibility of recording of
complainant's evidence
Subject to section 381, a recording is
admissible in evidence as if its contents were
the direct testimony of the complainant--
25 (a) in the proceeding; and
(b) unless the relevant court otherwise
orders, in--
(i) any new trial of, or appeal from,
the proceeding; or
30 (ii) another proceeding in the same
court for the charge for a sexual
offence or a charge for a related
offence; or
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(iii) a civil proceeding arising from the
same facts as those on which the
charge for a sexual offence is
founded.
5 380 Prosecution to give notice of intention to
tender recording
(1) If the prosecution intends to apply to tender a
recording as evidence in a proceeding
referred to in section 379, the prosecution
10 must serve on the accused and file in court
written notice of that intention at least
21 days before the day on which the trial or
hearing is listed to commence.
(2) The court may dispense with or vary a
15 requirement imposed by subsection (1).
381 Admission of recording of evidence of
complainant
(1) The court may admit a recording of the
evidence of the complainant if it is in the
20 interests of justice to do so, having regard
to--
(a) whether the complainant's recorded
evidence is complete, including cross-
examination and re-examination;
25 (b) the effect of editing any inadmissible
evidence from the recording;
(c) the availability or willingness of the
complainant to give further evidence;
(d) whether the accused would be unfairly
30 disadvantaged by the admission of the
recording;
(e) any other matter that the court
considers relevant.
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(2) The court may admit the whole or any part of
the contents of a recording and may direct
that the recording be edited or altered to
delete any part of it that is inadmissible.
5 382 Jury warning as to recorded evidence of
complainant
If a recording is admitted into evidence
under section 381, the trial judge must warn
the jury--
10 (a) that no adverse inference may be drawn
against the accused as a result of the
evidence being recorded; and
(b) that the evidence of the complainant is
not to be given any greater or lesser
15 weight as a result of the evidence being
recorded.
383 Attendance of complainant
Subject to sections 384 and 385, if a
recording is admitted into evidence in a
20 proceeding, the complainant is not required
to attend the proceeding unless required to
do so to give further evidence.
384 Direct testimony in addition to recording
(1) On the application of the prosecution, the
25 court may direct that the complainant is to
give direct testimony additional to a
recording admitted into evidence if the court
is satisfied that--
(a) the complainant is able and wishes to
30 give direct testimony; and
(b) it is in the interests of justice to do so.
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(2) A complainant may be cross-examined and
re-examined in relation to any direct
testimony given by the complainant in
response to a direction under subsection (1).
5 Note
Any other cross-examination requires leave under
section 385.
385 Cross-examination of complainant
(1) Subject to section 384(2), if a recording of
10 the evidence of the complainant is admitted
into evidence in a proceeding, the
complainant cannot be cross-examined or
re-examined without leave.
(2) A court must not grant leave to cross-
15 examine a complainant unless the court is
satisfied that--
(a) the accused is seeking leave because of
becoming aware of a matter of which
the accused could not reasonably have
20 been aware at the time of the recording;
or
(b) if the complainant were giving direct
testimony in the proceeding, the
complainant could be recalled, in the
25 interests of justice, to give further
evidence; or
(c) it is otherwise in the interests of justice
to permit the complainant to be cross-
examined or re-examined.
30 (3) If leave is granted under subsection (2), the
complainant must attend the proceeding to
be cross-examined or re-examined.
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386 Form in which recording of complainant's
evidence is to be tendered
(1) A recording that is tendered as evidence by
the prosecution under this Division must be
5 the best available record, or be comprised of
the best available records, of the evidence of
the complainant.
(2) In subsection (1)--
the best available record of the evidence, or
10 any part of the evidence, means an
audiovisual recording of the evidence.
(3) In exceptional circumstances and having
regard to whether the accused would be
unfairly prejudiced, the court may admit as
15 evidence an audio recording of the evidence,
or any part of the evidence, if an audiovisual
recording of the evidence is not available.
387 Exception to hearsay rule
(1) In this section--
20 hearsay rule has the same meaning as in the
Evidence Act 2008.
(2) The hearsay rule does not prevent--
(a) the admission of a recording in
accordance with this Division; or
25 (b) the use of the recording to prove the
existence of a fact that the complainant
intended to assert by a representation
made in the recorded evidence.
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Division 8--Miscellaneous
388 Evidence of specialised knowledge in
certain cases
Despite any rule of law to the contrary, in a
5 criminal proceeding that relates (wholly or
partly) to a charge for a sexual offence, the
court may receive evidence of a person's
opinion that is based on that person's
specialised knowledge (acquired through
10 training, study or experience) of--
(a) the nature of sexual offences; and
(b) the social, psychological and cultural
factors that may affect the behaviour of
a person who has been the victim, or
15 who alleges that he or she has been the
victim, of a sexual offence, including
the reasons that may contribute to a
delay on the part of the victim to report
the offence.
20 389 Audiovisual link evidence from overseas
in certain proceedings
(1) This section applies to a criminal proceeding
that relates (wholly or partly) to a charge for
an offence against section 49A(1) of the
25 Crimes Act 1958.
(2) The court may, on the application of a party
to the criminal proceeding, direct that a
witness give evidence by audiovisual link
if--
30 (a) the witness will give the evidence from
outside Australia; and
(b) the witness is not an accused in the
proceeding; and
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(c) the facilities required by subsection (3)
are available or can reasonably be made
available; and
(d) the court is satisfied that attendance of
5 the witness at the court to give the
evidence would--
(i) cause unreasonable expense or
inconvenience; or
(ii) cause the witness psychological
10 harm or unreasonable distress; or
(iii) cause the witness to become so
intimidated or distressed that his
or her reliability as a witness
would be significantly reduced;
15 and
(e) the court is satisfied that it is consistent
with the interests of justice that the
evidence be taken by audiovisual link.
(3) A witness can give evidence under a
20 direction under this section only if the
courtroom or other place in Victoria where
the court is sitting (the Victorian point) and
the place where the evidence is given
(the overseas point) are equipped with
25 audiovisual facilities that--
(a) enable all persons at the Victorian point
that the court considers appropriate, to
see and hear the witness give the
evidence; and
30 (b) enable all persons at the overseas point
that the court considers appropriate, to
see and hear appropriate persons at the
Victorian point.
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(4) The place where a witness gives evidence
under a direction under this section is taken
to be part of the courtroom or other place in
Victoria where the court is sitting while the
5 witness is there for the purpose of giving
evidence.
(5) An oath or affirmation to be sworn or made
by a witness who is to give evidence under a
direction under this section may be
10 administered either--
(a) by means of the audiovisual link, in as
nearly as practicable the same way as if
the witness were to give the evidence at
the courtroom or other place in Victoria
15 where the court is sitting; or
(b) at the direction of, and on behalf of, the
court at the place where the witness is
to give the evidence by a person
authorised by the court.
20 (6) A court may make any orders that are just for
the payment of expenses incurred in
connection with the giving of evidence under
a direction by the court under this section.
(7) This section does not prevent any other law,
25 or any rule or regulation made under any
other law, about taking evidence of a witness
outside Australia from applying for the
purposes of a proceeding to which this
section applies.
30 (8) Nothing in this section limits the application
of this Part to a charge for an offence against
section 49A(1) of the Crimes Act 1958.
__________________".
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51 Amendment of cross-references consequential on
renumbering
In the Criminal Procedure Act 2009--
(a) in section 2(2), for "384" substitute "437";
5 (b) in section 3--
(i) in the definition of accused, for "362"
substitute "415";
(ii) in the definition of ordinary service, for
"342" substitute "394";
10 (iii) in the definition of personal service, for
"339" substitute "391";
(c) in section 5(c), for "362" substitute "415";
(d) in the note at the foot of section 14(3), for
"349(3)" substitute "401(3)";
15 (e) in section 16, for "339" substitute "391";
(f) in the note at the foot of section 16, for
"347(4)" substitute "399(4)";
(g) in section 17(1), for "339" substitute "391";
(h) in the note at the foot of section 17(1), for
20 "342" substitute "394";
(i) in section 17(3), for "342(a)" substitute
"394(a)";
(j) in section 36(1), for "339" substitute "391";
(k) in the note at the foot of section 36(1), for
25 "342" substitute "394";
(l) in section 40(1), for "339" substitute "391";
(m) in the note at the foot of section 40(1), for
"342" substitute "394";
(n) in note 1 at the foot of section 41, for "363"
30 substitute "416";
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(o) in the note at the foot of section 42, for "363"
substitute "416";
(p) in note 2 at the foot of section 45, for "363"
substitute "416";
5 (q) in section 50(1), for "340" substitute "392";
(r) in section 51(4), for "340" substitute "392";
(s) in section 80(1)(a), for "342" substitute
"394";
(t) in section 90(1), for "340" substitute "392";
10 (u) in section 90(2), for "339" substitute "391";
(v) in section 91(3), for "340" substitute "392";
(w) in section 94(1)(a), for "342" substitute
"394";
(x) in section 105(2)(b), for "339" substitute
15 "391";
(y) in section 108(2), for "339" substitute
"391";
(z) in the note at the foot of section 108(2), for
"342" substitute "394";
20 (za) in the note at the foot of section 110, for
"363" substitute "416";
(zb) in the note at the foot of section 111, for
"363" substitute "416";
(zc) in section 116(3), for "342" substitute
25 "394";
(zd) in section 143(2)(b), for "340" substitute
"392";
(ze) in section 148, for "341" substitute "393";
(zf) in note 2 at the foot of section 161, for "362"
30 substitute "415";
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(zg) in section 171(2), for "339" substitute
"391";
(zh) in the note at the foot of section 174, for
"359" substitute "411";
5 (zi) in section 175(1), for "339" substitute
"391";
(zj) in section 183(1), for "340" substitute
"392";
(zk) in note 2 at the foot of section 185, for "363"
10 substitute "416";
(zl) in section 189(1), for "340" substitute
"392";
(zm) in section 190(3), for "340" substitute
"392";
15 (zn) in section 250(b), for "352 or 358"
substitute "404 or 410";
(zo) in section 255(2), for "340" substitute
"392";
(zp) in section 258(2), for "339" substitute
20 "391";
(zq) in section 261(2), for "339" substitute
"391";
(zr) in section 272(5)--
(i) for "339" substitute "391";
25 (ii) for "340" substitute "392";
(zs) in section 288(3), for "339" substitute
"391";
(zt) in section 292(3), for "339" substitute
"391";
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(zu) in section 296(3), for "340 or 342"
substitute "392 or 394";
(zv) in section 298(2), for "340 or 342"
substitute "392 or 394";
5 (zw) in section 338--
(i) for "339" substitute "391";
(ii) for "340" substitute "392";
(iii) for "341" substitute "393";
(iv) for "342" substitute "394";
10 (zx) in section 343--
(i) for "342" substitute "394";
(ii) for "339" substitute "391";
(zy) in section 349(4), for "358" substitute
"410";
15 (zz) in section 353, for "352 or 358" substitute
"404 or 410";
(zza) in the note at the foot of section 355(2), for
"342" substitute "394";
(zzb) in section 384(2), for "365" substitute
20 "418".
52 Renumbering of sections 338361 consequential on
insertion of new Part 8.2
In the Criminal Procedure Act 2009--
(a) in the heading to Part 8.2, for "8.2"
25 substitute "8.3";
(b) in section 338, for "338" substitute "390";
(c) in section 339, for "339" substitute "391";
(d) in section 340, for "340" substitute "392";
(e) in section 341, for "341" substitute "393";
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(f) in section 342, for "342" substitute "394";
(g) in section 343, for "343" substitute "395";
(h) in section 344, for "344" substitute "396";
(i) in section 345, for "345" substitute "397";
5 (j) in section 346, for "346" substitute "398";
(k) in section 347, for "347" substitute "399";
(l) in the heading to Part 8.3, for "8.3"
substitute "8.4";
(m) in section 348, for "348" substitute "400";
10 (n) in section 349, for "349" substitute "401";
(o) in section 350, for "350" substitute "402";
(p) in section 351, for "351" substitute "403";
(q) in section 352, for "352" substitute "404";
(r) in section 353, for "353" substitute "405";
15 (s) in section 354, for "354" substitute "406";
(t) in section 355, for "355" substitute "407";
(u) in section 356, for "356" substitute "408";
(v) in section 357, for "357" substitute "409";
(w) in section 358, for "358" substitute "410";
20 (x) in the heading to Part 8.4, for "8.4"
substitute "8.5";
(y) in section 359, for "359" substitute "411";
(z) in section 360, for "360" substitute "412";
(za) in section 361, for "361" substitute "413".
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53 New section 414 inserted
After section 413 of the Criminal Procedure Act
2009 insert--
"414 Acknowledgment of false statement
5 A person is liable to the penalties of perjury
if--
(a) the person makes a written statement
for the purposes of a criminal
proceeding or potential criminal
10 proceeding or the investigation of an
offence; and
(b) the statement contains an
acknowledgment signed in the presence
of a person referred to in Schedule 3
15 that the statement is true and correct
and is made in the belief that a person
making a false statement in the
circumstances is liable to the penalties
of perjury; and
20 (c) the person knows at the time of signing
the acknowledgment that the statement
is false.
Notes
1 Section 314 of the Crimes Act 1958 provides for the
25 offence of perjury.
2 Sections 38, 47 and 112 of this Act set out rules with
respect to statements in summary hearings and
committal proceedings.".
54 Renumbering of sections 362 onwards
30 In the Criminal Procedure Act 2009--
(a) in section 362, for "362" substitute "415";
(b) in section 363, for "363" substitute "416";
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(c) in section 364, for "364" substitute "417";
(d) in section 365, for "365" substitute "418";
(e) in section 366, for "366" substitute "419";
(f) in section 367, for "367" substitute "420";
5 (g) in section 368, for "368" substitute "421";
(h) in section 369, for "369" substitute "422";
(i) in section 370, for "370" substitute "423";
(j) in section 371, for "371" substitute "424";
(k) in section 372, for "372" substitute "425";
10 (l) in section 373, for "373" substitute "426";
(m) in section 374, for "374" substitute "427";
(n) in section 375, for "375" substitute "428";
(o) in section 376, for "376" substitute "429";
(p) in section 377, for "377" substitute "430";
15 (q) in section 378, for "378" substitute "431";
(r) in section 379, for "379" substitute "432";
(s) in section 380, for "380" substitute "433";
(t) in section 381, for "381" substitute "434";
(u) in section 382, for "382" substitute "435";
20 (v) in section 383, for "383" substitute "436";
(w) in section 384, for "384" substitute "437";
(x) in section 385, for "385" substitute "438".
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55 New Chapter 10 inserted
After Chapter 9 of the Criminal Procedure Act
2009 insert--
"CHAPTER 10--SAVINGS AND
5 TRANSITIONAL PROVISIONS
439 Savings and transitional provisions
Schedule 4 has effect.
__________________".
56 Substitution of Schedule 2
10 For Schedule 2 to the Criminal Procedure Act
2009 substitute--
"SCHEDULE 2
Section 28(1)
INDICTABLE OFFENCES THAT MAY BE
15 HEARD AND DETERMINED SUMMARILY
1 Common law
1.1 Offences at common law of conspiracy to
cheat and defraud, if the amount or value of
the property or the financial advantage
20 alleged to be involved does not in the
judgment of the court exceed $100 000.
1.2 Offences at common law of conspiracy to
defraud, if the amount or value of the
property or the financial advantage alleged to
25 be involved does not in the judgment of the
court exceed $100 000.
2 Aboriginal Heritage Act 2006
2.1 Indictable offences under the Aboriginal
Heritage Act 2006.
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3 Assisted Reproductive Treatment Act
2008
3.1 Indictable offences under the Assisted
Reproductive Treatment Act 2008.
5 4 Crimes Act 1958
4.1 Offences under section 17 of the Crimes
Act 1958 (causing serious injury recklessly).
4.2 Offences under section 27 of the Crimes
Act 1958 (extortion with threat to kill).
10 4.3 Offences under section 54 of the Crimes
Act 1958 (occupier, etc. permitting unlawful
sexual penetration).
4.4 Offences under section 74 of the Crimes
Act 1958 (theft), if--
15 (a) the amount or value of the property
alleged to have been stolen does not in
the judgment of the court exceed
$100 000; or
(b) the property alleged to have been stolen
20 is a motor vehicle.
4.5 Offences under section 75 of the Crimes
Act 1958 (robbery), if the amount or value of
the property alleged to have been stolen does
not in the judgment of the court exceed
25 $100 000.
4.6 Offences under section 76 of the Crimes
Act 1958 (burglary), if the offence involves
an intent to steal property the amount or
value of which does not in the judgment of
30 the court exceed $100 000.
4.7 Offences under section 77 of the Crimes
Act 1958 (aggravated burglary), if the
offence involves an intent to steal property
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the amount or value of which does not in the
judgment of the court exceed $100 000.
4.8 Offences under section 78 of the Crimes
Act 1958 (removal of articles from places
5 open to the public), if the amount or value of
the article alleged to have been removed
does not in the judgment of the court exceed
$100 000.
4.9 Offences under section 81 of the Crimes
10 Act 1958 (obtaining property by deception),
if the amount or value of the property alleged
to have been obtained does not in the
judgment of the court exceed $100 000.
4.10 Offences under section 82 of the Crimes
15 Act 1958 (obtaining financial advantage by
deception), if the amount or value of the
financial advantage alleged to have been
obtained does not in the judgment of the
court exceed $100 000.
20 4.11 Offences under section 83 of the Crimes Act
1958 (false accounting), if the amount or
value of the alleged gain or loss does not in
the judgment of the court exceed $100 000.
4.12 Offences under section 86 of the Crimes
25 Act 1958 (suppression, etc. of documents), if
the amount or value of the alleged gain or
loss does not in the judgment of the court
exceed $100 000.
4.13 Offences under section 88 of the Crimes
30 Act 1958 (handling stolen goods), if--
(a) the stolen goods alleged to have been
handled are a motor vehicle; or
(b) in any other case, the amount or value
of the stolen goods alleged to have been
35 handled does not in the judgment of the
court exceed $100 000.
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4.14 Offences under section 176 of the Crimes
Act 1958 (receipt or solicitation of secret
commission by agent), if the amount or value
of the valuable consideration received,
5 solicited, given or offered does not in the
judgment of the court exceed $100 000.
4.15 Offences under section 178 of the Crimes
Act 1958 (giving or receiving false or
misleading receipt or account), if the amount
10 or value of the valuable consideration
received or given does not in the judgment of
the court exceed $100 000.
4.16 Offences under section 179 of the Crimes
Act 1958 (gift or receipt of secret
15 commission in return for advice given), if the
amount or value of the valuable
consideration received or given does not in
the judgment of the court exceed $100 000.
4.17 Offences under section 180 of the Crimes
20 Act 1958 (secret commission to trustee in
return for substituted appointment), if the
amount or value of the valuable
consideration received or given does not in
the judgment of the court exceed $100 000.
25 4.18 Offences under section 181 of the Crimes
Act 1958 (aiding and abetting offences
within or outside Victoria), if the amount or
value of the valuable consideration received
or given does not in the judgment of the
30 court exceed $100 000.
4.19 Offences under section 191 of the Crimes
Act 1958 (fraudulently inducing persons to
invest money).
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4.20 Offences under section 194(1) or (2) of the
Crimes Act 1958 (dealing with proceeds of
crime), if--
(a) the property alleged to have been dealt
5 with is a motor vehicle; or
(b) in any other case, the amount or value
of the proceeds of crime alleged to have
been dealt with does not in the
judgment of the court exceed $100 000.
10 4.21 Offences under section 195A(1) of the
Crimes Act 1958 (dealing with property
which subsequently becomes an instrument
of crime), if the amount or value of the
property alleged to have been dealt with does
15 not in the judgment of the court exceed
$100 000.
4.22 Offences under section 197(1) or (3) of the
Crimes Act 1958 (destroying or damaging
property) (including offences charged as
20 arson), if the amount or value of the property
alleged to be destroyed or damaged does not
in the judgment of the court exceed
$100 000.
4.23 Offences under section 198 of the Crimes
25 Act 1958 (threats to destroy or damage
property), if the amount or value of the
property alleged to be threatened to be
destroyed or damaged does not in the
judgment of the court exceed $100 000.
30 4.24 Offences under section 199 of the Crimes
Act 1958 (possessing anything with intent to
destroy or damage property), if the amount
or value of the property alleged to be
intended to be destroyed or damaged does
35 not in the judgment of the court exceed
$100 000.
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4.25 Offences under section 247B of the Crimes
Act 1958 (computer offences), if the
maximum penalty does not exceed level 5
imprisonment.
5 4.26 Offences under section 314 of the Crimes
Act 1958 (perjury).
4.27 Offences under section 321G of the Crimes
Act 1958 (incitement) which are alleged to
have been committed in relation to an
10 indictable offence to which section 28(1) of
this Act applies.
4.28 Offences under section 321M of the Crimes
Act 1958 (attempt) which are alleged to have
been committed in relation to an indictable
15 offence to which section 28(1) of this Act
applies.
4.29 Offences under section 325 of the Crimes
Act 1958 (accessories) which are alleged to
have been committed in relation to a serious
20 indictable offence (within the meaning of
that section) to which section 28(1) of this
Act applies.
4.30 Offences under section 326(1) of the Crimes
Act 1958 (concealing offences for benefit)
25 which are alleged to have been committed in
relation to a serious indictable offence
(within the meaning of that section) to which
section 28(1) of this Act applies.
5 Dangerous Goods Act 1985
30 5.1 Indictable offences under the Dangerous
Goods Act 1985.
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6 Drugs, Poisons and Controlled Substances
Act 1981
6.1 Indictable offences under the Drugs,
Poisons and Controlled Substances Act
5 1981, except for offences against
sections 71, 71AA, 72 and 72A and offences
against the following provisions as in force
before the commencement of the Drugs,
Poisons and Controlled Substances
10 (Amendment) Act 2001--
(a) section 71(1) where the alleged offence
is committed in relation to a quantity of
a drug of dependence that is not less
than the commercial quantity applicable
15 to that drug of dependence;
(b) section 72(1) where the alleged offence
is committed in relation to a quantity of
a drug of dependence, being a narcotic
plant, that is not less than the
20 commercial quantity applicable to that
narcotic plant.
7 Electricity Industry Act 2000
7.1 Offences under section 93A(1) or (2) of the
Electricity Industry Act 2000.
25 7.2 Offences by a body corporate under section
97(7) of the Electricity Industry Act 2000.
7.3 Offences under section 97(11) of the
Electricity Industry Act 2000.
8 Electricity Safety Act 1998
30 8.1 Offences under section 141A of the
Electricity Safety Act 1998, but the
maximum penalty that the court may impose
on a body corporate is 10 000 penalty units.
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9 Environment Protection Act 1970
9.1 Indictable offences under the Environment
Protection Act 1970, but if there are 2 or
more accused, one of whom is a natural
5 person charged under section 66B of that Act
and one of whom is a body corporate, and
the charges must be heard together, the
maximum fine that the court may impose on
the natural person in respect of a single
10 offence is 2500 penalty units.
Note
See section 56 as to when charges must be heard
together.
10 Equipment (Public Safety) Act 1994
15 10.1 Indictable offences under the Equipment
(Public Safety) Act 1994.
11 Firearms Act 1996
11.1 Offences under section 5(1A) of the
Firearms Act 1996 (offence for prohibited
20 person to possess, carry or use unregistered
firearm).
11.2 Offences under section 7B(2) of the
Firearms Act 1996 (offence to possess,
carry or use an unregistered category E
25 handgun).
12 Food Act 1984
12.1 Indictable offences under the Food Act
1984.
13 Gas Industry Act 2001
30 13.1 Offences under section 149A(1) or (2) of the
Gas Industry Act 2001.
13.2 Offences by a body corporate under section
208(5) of the Gas Industry Act 2001.
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13.3 Offences under section 210(1) of the Gas
Industry Act 2001.
14 Gas Safety Act 1997
14.1 Offences under section 107 of the Gas
5 Safety Act 1997, but the maximum penalty
that the court may impose on a body
corporate is 10 000 penalty units.
15 Health Records Act 2001
15.1 Indictable offences under the Health
10 Records Act 2001.
16 Heritage Act 1995
16.1 Indictable offences under the Heritage Act
1995.
17 Information Privacy Act 2000
15 17.1 Indictable offences under the Information
Privacy Act 2000.
18 Juries Act 2000
18.1 Indictable offences under the Juries Act
2000.
20 19 Major Sporting Events Act 2009
19.1 Indictable offences under the Major
Sporting Events Act 2009.
20 Occupational Health and Safety Act 2004
20.1 Indictable offences under the Occupational
25 Health and Safety Act 2004.
21 Police Regulation Act 1958
21.1 Offences under section 127A(1AB) of the
Police Regulation Act 1958.
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22 Pollution of Waters by Oil and Noxious
Substances Act 1986
22.1 Indictable offences under the Pollution of
Waters by Oil and Noxious Substances
5 Act 1986, but subject to section 24C of that
Act.
23 Prohibition of Human Cloning for
Reproduction Act 2008
23.1 Indictable offences under the Prohibition of
10 Human Cloning for Reproduction Act
2008.
24 Prostitution Control Act 1994
24.1 Offences under section 6(1) of the
Prostitution Control Act 1994 (obtaining
15 payment for sexual services provided by a
child).
24.2 Offences under section 7(1) of the
Prostitution Control Act 1994 (agreement
for provision of sexual services by a child).
20 25 Rail Safety Act 2006
25.1 Indictable offences under the Rail Safety
Act 2006.
26 Research Involving Human Embryos Act
2008
25 26.1 Indictable offences under the Research
Involving Human Embryos Act 2008.
27 Road Management Act 2004
27.1 Indictable offences under the Road
Management Act 2004.
30 28 Tobacco Act 1987
28.1 Indictable offences under the Tobacco Act
1987.
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29 Transport Act 1983
29.1 Indictable offences under the Transport Act
1983.
30 Water Act 1989
5 30.1 Indictable offences under the Water Act
1989.
31 Water Industry Act 1994
31.1 Indictable offences under the Water
Industry Act 1994.
10 __________________".
57 Amendment of Schedule 3
In Schedule 3 to the Criminal Procedure Act
2009--
(a) in item 6--
15 (i) after "Investigator in" insert ", or a
member of,";
(ii) after "Workplace Relations" insert
"of the Commonwealth";
(b) in item 7--
20 (i) for "Inspector General Group"
substitute "Inspector General
Division";
(ii) after "Defence" insert "of the
Commonwealth";
25 (c) in item 12, after "Forestry" insert "of the
Commonwealth";
(d) in item 13, after "Ageing" insert "of the
Commonwealth";
(e) in item 14--
30 (i) for "section 390" substitute "Part 6.9";
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(ii) for "Petroleum Act" substitute
"Petroleum and Greenhouse Gas
Storage Act";
(f) in item 16--
5 (i) for "Officer, or" substitute "Officer
or";
(ii) for "the Health Insurance Commission"
substitute "Medicare Australia";
(g) in item 18, after "Trade" insert "of the
10 Commonwealth";
(h) for item 21 substitute--
"21 A person authorised by or under
section 241 of the Building Act 1993.";
(i) for item 26 substitute--
15 "26 An officer at Australian Public Service
level 5 or higher who is an investigator
in the Department of Immigration and
Citizenship of the Commonwealth.".
58 New Schedule 4 inserted
20 After Schedule 3 to the Criminal Procedure Act
2009 insert--
"__________________
SCHEDULE 4
Section 439
25 SAVINGS AND TRANSITIONAL PROVISIONS
1 Definitions
In this Schedule--
commencement day means the day on which
this Act (other than Chapter 1 and
30 section 437) comes into operation;
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superseded provision means a provision of
an Act that has been amended or
repealed by this Act or the Criminal
Procedure Amendment
5 (Consequential and Transitional
Provisions) Act 2009.
2 General transitional provision
(1) Except where the contrary intention appears,
this Schedule does not affect or take away
10 from the Interpretation of Legislation Act
1984.
(2) If a superseded provision of an Act continues
to apply by force of this Schedule, the
following provisions also continue to apply
15 in relation to that provision--
(a) any other provisions of that Act
necessary to give effect to that
continued provision; and
(b) any regulations or rules of court made
20 under that Act for the purposes of that
continued provision.
(3) This Schedule applies despite anything to the
contrary in any other provision of this Act.
3 Renumbering
25 On and from the commencement day, unless
the context otherwise requires, in an Act or
in an instrument made under an Act or in any
other document of any kind, a reference to a
provision of this Act that has been
30 renumbered or relocated must be construed
as a reference to the provision as renumbered
or relocated and in force for the time being.
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4 References to superseded provisions
A reference to a superseded provision in any
Act (other than this Act or the Criminal
Procedure Amendment (Consequential
5 and Transitional Provisions) Act 2009) or
in any rule, regulation, order, agreement,
instrument, deed or other document of any
kind must, so far as it relates to any period
on or after the commencement day and if not
10 inconsistent with the context or subject
matter, be construed as a reference to the
relevant provision of this Act.
5 Commencing a criminal proceeding
(1) Chapter 2 applies to a criminal proceeding
15 commenced on or after the commencement
day, irrespective of when the offence is
alleged to have been committed.
Note
Section 5 sets out how a criminal proceeding is
20 commenced.
(2) Subject to this Schedule, Part 4 of the
Magistrates' Court Act 1989 as in force
immediately before the commencement day
continues to apply to a criminal proceeding
25 commenced in the Magistrates' Court before
the commencement day as if that Part had
not been amended.
6 Summary procedure
(1) Chapter 3 applies to a criminal proceeding
30 commenced on or after the commencement
day, irrespective of when the offence is
alleged to have been committed.
Note
Section 5 sets out how a criminal proceeding is
35 commenced.
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(2) Subject to this Schedule, Part 4 of the
Magistrates' Court Act 1989 as in force
immediately before the commencement day
continues to apply to a criminal proceeding
5 commenced in the Magistrates' Court before
the commencement day as if that Part had
not been amended.
7 Committal proceeding
(1) Chapter 4 applies to a criminal proceeding
10 commenced on or after the commencement
day, irrespective of when the offence is
alleged to have been committed.
Note
Section 5 sets out how a criminal proceeding is
15 commenced.
(2) Subject to this Schedule, Part 4 of the
Magistrates' Court Act 1989 as in force
immediately before the commencement day
continues to apply to a criminal proceeding
20 commenced in the Magistrates' Court before
the commencement day as if that Part had
not been amended.
(3) Section 145 applies to an accused committed
for trial on or after the commencement day.
25 8 Trial
(1) On and from the commencement day,
Chapter 5 applies to a criminal proceeding in
which--
(a) the accused is committed for trial; or
30 (b) a direct indictment is filed against the
accused--
on or after the commencement day.
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(2) If an accused is committed for trial on or
after the commencement day in a criminal
proceeding that was commenced before the
commencement day, the criminal proceeding
5 is taken to be a criminal proceeding
commenced under Chapter 2.
(3) On and from the commencement day--
(a) section 168 applies to a criminal
proceeding in which the accused was
10 committed for trial before the
commencement day;
(b) sections 216 and 241 apply to an
accused committed for trial or against
whom a presentment was filed before
15 the commencement day, as if the
presentment were an indictment filed
under this Act;
(4) Subject to this clause--
(a) the Crimes Act 1958; and
20 (b) the Crimes (Criminal Trials) Act
1999; and
(c) the Public Prosecutions Act 1994--
as in force immediately before the
commencement day continue to apply to an
25 accused who, before the commencement
day--
(d) was committed for trial; or
(e) was given a notice of trial or a notice of
intention to prefer a presentment.
30 9 New trial or further hearing
(1) Subject to subclause (2), on and from the
commencement day, if on appeal or a case
stated a new trial or further hearing is
ordered, this Act applies to the new trial or
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further hearing, irrespective of when the first
trial or hearing was conducted.
(2) Subclause (1) does not apply to a new trial or
further hearing that is ordered under
5 Division 4 or 5 of Part 6.3 in a proceeding
that commenced before the commencement
day.
10 Appeals
(1) Part 6.1 applies to an appeal in relation to a
10 sentence imposed by the Magistrates' Court
on or after the commencement day.
(2) Section 567A(1A) of the Crimes Act 1958
as in force immediately before the
commencement day continues to apply to a
15 sentence passed before the commencement
day.
(3) Part 6.2 applies to an appeal from a final
order of the Magistrates' Court made on or
after the commencement day.
20 (4) Divisions 1, 2 and 3 of Part 6.3 apply to an
appeal where the sentence is imposed on or
after the commencement day.
(5) Division 4 of Part 6.3 applies to an
interlocutory decision made in a proceeding
25 on or after the commencement day,
irrespective of when the proceeding
commenced.
(6) Division 5 of Part 6.3 (other than section
308) applies to a question of law that arises
30 in a proceeding on or after the
commencement day, irrespective of when the
proceeding commenced.
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(7) Section 308 applies to an acquittal recorded
on or after the commencement day,
irrespective of when the proceeding
commenced.
5 (8) On and from the commencement day, a
finding of guilt or a conviction, decision or
determination in a criminal proceeding that
has been quashed before the commencement
day is taken to have been set aside.
10 11 Petitions for mercy
(1) Chapter 7 applies to a petition for mercy
made on or after the commencement day,
irrespective of when the proceeding
commenced in relation to which the petition
15 is made.
(2) If a petition for mercy relates to a criminal
proceeding in which presentment was made
under section 353 of the Crimes Act 1958 as
in force before its repeal, Chapter 7 applies
20 as if a reference to indictment were a
reference to presentment.
12 Witnesses
(1) Part 8.2 applies to a hearing in a criminal
proceeding if the hearing commences on or
25 after the commencement day.
(2) Sections 37A, 37B, 37C, 37CAA, 37CA,
37D and 37E and Division 3AA of Part II of
the Evidence Act 1958 as in force
immediately before the commencement day
30 continue to apply to a hearing in a criminal
proceeding if the hearing commenced before
the commencement day and--
(a) continued on or after that day; or
(b) was adjourned until that day or a day
35 after that day.
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(3) If an application for leave under Rule (2) in
section 37A(1) of the Evidence Act 1958
has been given to the DPP but not
determined before the commencement day,
5 on and from the commencement day the
application is taken to have been filed and
served under section 344 of this Act.
(4) If a transcript of a recording of the evidence-
in-chief of a witness for the prosecution has
10 been served under section 37B(3)(a) of the
Evidence Act 1958 before the
commencement day, on and from the
commencement day the transcript is taken to
have been served under section 368 of this
15 Act.
(5) If a special hearing is held under section 41G
of the Evidence Act 1958 before the
commencement day and the evidence is
presented at trial on or after that day, on and
20 from the commencement day the special
hearing is taken to have been conducted
under Division 6 of Part 8.2 of this Act.
(6) If, before the commencement day--
(a) an accused has been committed for trial
25 in respect of a charge for an offence
under Subdivision (8EAA) of
Division 1 of Part I of the Crimes Act
1958; or
(b) an accused has been presented for trial
30 on such a charge without the holding of
a committal proceeding--
section 371 of this Act does not apply to the
holding of a special hearing in relation to the
charge on or after the commencement day.
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13 Costs
(1) On and from the commencement day,
Part 8.4 applies to a proceeding to which this
Act applies.
5 (2) For the purposes of subclause (1), if a
proceeding was commenced but not
determined before the commencement day,
the whole of the proceeding is taken to be a
proceeding to which this Act applies.
10 14 Power to amend when there is a defect or
error
On and from the commencement day,
section 412 applies to any summons,
warrant, plea, judgment or order, irrespective
15 of when the summons, warrant, plea,
judgment or order was issued or made.
15 Transfer of charge to court with
jurisdiction
On and from the commencement day,
20 section 413 applies to a charge before a
court, irrespective of when the charge was
filed.
16 Perjury
(1) Section 414 applies to an offence alleged to
25 have been committed on or after the
commencement day.
(2) On and from the commencement day,
section 415 applies to a direction that a
person be tried for perjury, irrespective of
30 when the alleged perjury was committed.
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17 Transitional regulations
The Governor in Council may make
regulations containing provisions of a
savings or transitional nature consequent on
5 the enactment of this Act.".
__________________
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PART 3--AMENDMENT OF CHILDREN, YOUTH AND
FAMILIES ACT 2005
59 Definitions
See: In section 3(1) of the Children, Youth and
Act No.
5 96/2005. Families Act 2005--
Reprint No. 2
as at (a) in the definition of accountable
19 August
2009
undertaking, for "a sentencing order"
and substitute "an order";
amending
Act Nos (b) in the definition of child, in paragraph (ab),
51/2006,
10 77/2008, after "18" insert "years";
4/2009, 7/2009,
22/2009, (c) for the definition of sentencing order
26/2009,
46/2009 and
substitute--
50/2009.
LawToday:
"sentence includes--
www.
legislation. (a) the recording of a conviction; and
vic.gov.au
15 (b) an order made under Part 5.3,
other than--
(i) an order incidental to or
preparatory to the making of
the order; or
20 (ii) an order granting bail made
under section 420; and
(c) an order made under section 11 of
the Sex Offenders Registration
Act 2004; and
25 (d) an order made under section 84S
or 84T of the Road Safety Act
1986;";
(d) insert the following definitions--
"appeal, in Part 5.4, includes application for
30 leave to appeal;
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appeal period, in Part 5.4, means the period
permitted by or under this Act or any
other Act for commencing an appeal
under Part 5.4 or, if a notice of appeal
5 or notice of application for leave to
appeal under Part 5.4 is filed within that
period, the determination of the appeal;
appellant, in Part 5.4, includes an applicant
for leave to appeal;
10 appellate court, in Part 5.4, means the
County Court or the Trial Division of
the Supreme Court, as the case
requires;
conviction, in Part 5.4, includes a finding of
15 guilt by the Court, whether or not a
conviction is recorded;
President means the President appointed
under section 508 and includes the
Acting President appointed under
20 section 509;".
60 Procedure on appeals to County Court or Supreme
Court
(1) For section 328(6) and (7) of the Children, Youth
and Families Act 2005 substitute--
25 "(6) The following sections--
(a) section 425 (except subsection (3)(a))
(How appeal is commenced);
(b) section 426 (1), (2), (4) and (5)
(Determination of appeal);
30 (c) section 430 (Late notice of appeal
deemed to be application for leave to
appeal);
(d) section 430C (except subsections (3)
and (4)) (Abandonment of appeal);
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(e) section 430D (Appellant's failure to
appear);
(f) section 430E (Respondent's failure to
appear on appeal by DPP);
5 (g) section 430F (One notice of appeal for
2 or more sentences);
(h) section 430G (Appeal to County Court
or Trial Division of Supreme Court
authorised by other Acts);
10 (i) section 430ZD (Appeals to be heard in
open court);
(j) section 430ZE (Legal representation);
(k) section 430ZF (Interpreters);
(l) section 430ZG (Explanation of and
15 reasons for orders);
(m) section 430ZH (No costs on appeal or
new hearing)--
apply, with any necessary modifications, to
an appeal under this section as if--
20 (n) a reference to an appeal under
section 424 were a reference to an
appeal under this section;
(o) a reference to the sentence were a
reference to the order or dismissal that
25 is the subject of the appeal;
(p) a reference to the DPP were a reference
to the Secretary or the Attorney-
General (as the case requires);
(q) a reference to the Criminal Division
30 were a reference to the Family
Division.".
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(2) In section 328(9) of the Children, Youth
and Families Act 2005, for "clause 2(1) of
Schedule 6 to the Magistrates' Court Act
1989" substitute "section 425(4)".
5 (3) In section 328(10) of the Children, Youth
and Families Act 2005--
(a) omit "524, 526, 527,"; and
(b) omit paragraph (c).
61 DPP reference
10 For section 340(c) of the Children, Youth and
Families Act 2005 substitute--
"(c) the DPP; and".
62 Children to be proceeded against by summons
(1) In section 345(1) of the Children, Youth and
15 Families Act 2005, for "charge" substitute
"charge-sheet".
(2) In section 345(2) of the Children, Youth and
Families Act 2005, for "section 28 of the
Magistrates' Court Act 1989" substitute
20 "section 12 of the Criminal Procedure Act
2009".
63 Child to be brought before Court or bail justice
In section 346(10) of the Children, Youth and
Families Act 2005, for "charge" substitute
25 "hearing of the charge".
64 Referral to Secretary
In section 349(1)(a) and (2)(a) of the Children,
Youth and Families Act 2005, for "a defendant"
substitute "an accused".
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65 Adjournment of criminal proceeding when
therapeutic treatment order made
In section 352 of the Children, Youth and
Families Act 2005, for "a defendant" substitute
5 "an accused".
66 Division heading amended
In the heading to Division 3 of Part 5.2 of
Chapter 5 of the Children, Youth and Families
Act 2005, for "triable summarily" substitute
10 "that may be heard and determined
summarily".
67 Section heading amended
In the heading to section 356 of the Children,
Youth and Families Act 2005, for "triable
15 summarily" substitute "that may be heard and
determined summarily".
68 Part 5.3 amended
(1) In the Children, Youth and Families Act 2005--
(a) for the heading to Part 5.3 of Chapter 5
20 substitute--
"PART 5.3--SENTENCES";
(b) for the heading to section 360 substitute--
"Sentences";
(c) in section 360(3) and (4), for "sentencing
25 order" substitute "sentence";
(d) for section 381(4)(g) substitute--
"(g) if a pre-sentence report includes a
statement from the Secretary that the
person has an intellectual disability
30 within the meaning of the Disability
Act 2006, that the person participate in
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disability services available under that
Act as directed by the Secretary; or";
(e) in section 384(5)(f) and (g), for "sentencing
order" substitute "sentence";
5 (f) in section 385(1)(c) and (2)(b), for
"sentencing order" substitute "sentence";
(g) in section 393(f) and (g), for "sentencing
order" substitute "sentence";
(h) in section 394(2)(c) and (3)(b), for
10 "sentencing order" substitute "sentence";
(i) in section 408(2)(c) and (d), for "sentencing
order" substitute "sentence";
(j) in section 409(5)(f), for "sentencing order"
substitute "sentence";
15 (k) in section 409(8), for "accused person"
substitute "accused";
(l) in section 419, for "sentencing orders"
substitute "sentences";
(m) in section 420(1)--
20 (i) for "sentencing order" (wherever
occurring) substitute "sentence";
(ii) for "accused person" substitute
"accused";
(n) in section 421(8), for "accused person"
25 substitute "accused";
(o) in the heading to section 423, for
"sentencing order" substitute "sentence";
(p) in section 423(1), for "sentencing order"
substitute "sentence";
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(q) in section 423(2)--
(i) for "a sentencing order" substitute
"a sentence";
(ii) for "the sentencing order was made"
5 substitute "the sentence was imposed";
(r) in section 423(3)--
(i) for "a sentencing order" substitute
"a sentence";
(ii) for "the sentencing order was made"
10 substitute "the sentence was imposed";
(iii) for "made the sentencing order"
substitute "imposed the sentence";
(s) in section 423(4)--
(i) for "a sentencing order" substitute
15 "a sentence";
(ii) for "made the sentencing order"
substitute "imposed the sentence";
(t) in section 423(5)(e), for "sentencing orders"
substitute "sentences";
20 (u) in section 423(6), for "sentencing order was
made" substitute "sentence was imposed";
(v) in section 423(7)--
(i) for "made the sentencing order"
substitute "imposed the sentence";
25 (ii) in paragraph (c), for "or in accordance
with section 49 of the Magistrates'
Court Act 1989" substitute "or deal
with the person in accordance with
section 333 of the Criminal Procedure
30 Act 2009";
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(w) in section 423(8)(a), for "sentencing order
was made" substitute "sentence was
imposed".
(2) For section 423(9) of the Children, Youth and
5 Families Act 2005 substitute--
"(9) This section applies despite section 426(5).".
69 Substitution of Part 5.4
For Part 5.4 of Chapter 5 of the Children, Youth
and Families Act 2005 substitute--
10 "PART 5.4--APPEALS
Division 1--Appeal by offender to the County
Court or Trial Division of the Supreme Court
424 Right of appeal
A person convicted of an offence by the
15 Children's Court in a summary proceeding in
the Criminal Division may appeal to the
County Court or, if the Children's Court was
constituted by the President, to the Trial
Division of the Supreme Court against--
20 (a) the conviction and sentence imposed by
the Children's Court; or
(b) sentence alone.
Note
See the definitions of conviction and sentence in
25 section 3.
425 How appeal is commenced
(1) An appeal under section 424 is commenced
by filing a notice of appeal with a registrar of
the Children's Court at any venue of the
30 Children's Court within 28 days after the day
on which the sentence of the Children's
Court is imposed.
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(2) A copy of the notice of appeal must be
served on the respondent in accordance with
section 392 of the Criminal Procedure Act
2009 within 7 days after the day on which
5 the notice is filed.
(3) A notice of appeal must--
(a) state whether the appeal is against
conviction and sentence, or sentence
alone; and
10 (b) be in the form prescribed by the rules of
the appellate court.
(4) A notice of appeal must include an
undertaking signed by the appellant in the
manner prescribed by the rules of the
15 appellate court--
(a) to appear at the appellate court to
proceed with the appeal at a place and
on a day fixed or to be fixed by the
registrar of the County Court or the
20 prothonotary of the Supreme Court
(as the case requires) and to appear at
the appellate court for the duration of
the appeal; and
(b) to give written notice without delay to
25 the registrar of the County Court or the
prothonotary of the Supreme Court
(as the case requires) of any change of
address of the appellant from that
appearing in the notice of appeal.
30 (5) A notice of appeal filed under this section
must be transmitted to the appellate court.
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426 Determination of appeal
(1) An appeal under section 424 must be
conducted as a rehearing and the appellant is
not bound by the plea entered in the
5 Children's Court.
(2) On the hearing of an appeal under
section 424, the appellate court--
(a) must set aside the sentence of the
Children's Court; and
10 (b) subject to this section, may impose any
sentence which the appellate court
considers appropriate and which the
Children's Court imposed or could have
imposed; and
15 (c) may exercise any power which the
Children's Court exercised or could
have exercised.
(3) On the hearing of an appeal under 424 (other
than an appeal referred to in subsection (6)
20 of this section), the appellate court must
warn the appellant, as early as possible
during the hearing, that the appellant faces
the possibility that a more severe sentence
may be imposed than that imposed by the
25 Children's Court.
(4) The appellate court may backdate a sentence
imposed under subsection (2) to a date not
earlier than the date of the sentence of the
Children's Court that was set aside on the
30 appeal.
(5) A sentence imposed under subsection (2) is
for all purposes to be regarded as a sentence
of the appellate court.
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(6) If an appellant appeals against an order made
under section 363, 365 or 367, the appellate
court may--
(a) dismiss the charge against the
5 appellant; or
(b) make an order in the same terms as the
order of the Children's Court--
but must not impose any other sentence.
Note
10 Orders under sections 363, 365 and 367 are orders for
non-accountable undertakings, accountable
undertakings and good behaviour bonds respectively.
(7) On the hearing of an appeal referred to in
subsection (8), if the appellate court finds the
15 appellant guilty of 2 or more of the offences
in respect of which the appellant was
sentenced, the appellate court may order--
(a) that the appellant be detained in a youth
residential centre or a youth justice
20 centre, as the case may be, for a period
not exceeding the aggregate period
specified in the original sentence; or
(b) that the appellant be detained in a youth
residential centre or a youth justice
25 centre, as the case may be, for a
separate period of detention in respect
of each offence but so that the separate
periods do not in the aggregate exceed
the aggregate period specified in the
30 original sentence.
(8) Subsection (7) applies to an appeal under
section 424 against--
(a) a sentence which orders the appellant to
be detained in a youth residential centre
35 or a youth justice centre in respect of
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2 or more offences for a specified
aggregate period; or
(b) a conviction in respect of which a
sentence referred to in paragraph (a)
5 was imposed.
(9) On an appeal under this section, the appellate
court may, despite anything to the contrary
in this Act, make a probation order, youth
supervision order or youth attendance order
10 in respect of a person even though at the time
of making that order the person is of or
above the age of 19 years but under 21 years.
Division 2--Appeal by DPP against sentence
427 DPP's right of appeal against sentence
15 (1) The DPP may appeal to the County Court or,
if the Children's Court was constituted by the
President, to the Trial Division of the
Supreme Court against a sentence imposed
by the Children's Court in a summary
20 proceeding in the Criminal Division if
satisfied that an appeal should be brought in
the public interest.
(2) The DPP must not bring a further appeal
against a sentence imposed by the appellate
25 court.
428 How appeal is commenced
(1) An appeal under section 427 is commenced
by filing a notice of appeal with a registrar of
the Children's Court at any venue of the
30 Children's Court within 28 days after the day
on which the sentence of the Children's
Court is imposed.
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(2) A copy of the notice of appeal must be
served on the respondent in accordance with
section 593(1) within 7 days after the day on
which the notice is filed.
5 (3) A notice of appeal must--
(a) state the general grounds of appeal; and
(b) be in the form prescribed by the rules of
the appellate court.
(4) The DPP must provide a copy of the notice
10 of appeal to the legal practitioner who last
represented the respondent in the criminal
proceeding to which the appeal relates, if
that legal practitioner can reasonably be
identified.
15 (5) A notice of appeal filed under this section
must be transmitted to the appellate court.
429 Determination of DPP appeal
(1) An appeal under section 427 must be
conducted as a rehearing and the respondent
20 is not bound by the plea entered in the
Children's Court.
(2) On the hearing of an appeal under
section 427, the appellate court--
(a) must set aside the sentence of the
25 Children's Court; and
(b) subject to this section, may impose any
sentence which the appellate court
considers appropriate and which the
Children's Court imposed or could have
30 imposed; and
(c) may exercise any power which the
Children's Court exercised or could
have exercised.
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(3) If the DPP appeals against an order made
under section 363, 365 or 367, the appellate
court may--
(a) dismiss the charge against the
5 appellant; or
(b) make an order in the same terms as the
order of the Children's Court--
but must not impose any other sentence.
Note
10 Orders under sections 363, 365 and 367 are orders for
non-accountable undertakings, accountable
undertakings and good behaviour bonds respectively.
(4) On the hearing of an appeal referred to in
subsection (5), if the appellate court finds the
15 respondent guilty of 2 or more of the
offences in respect of which the respondent
was sentenced, the appellate court may
order--
(a) that the respondent be detained in a
20 youth residential centre or a youth
justice centre, as the case may be, for a
period not exceeding the aggregate
period specified in the original
sentence; or
25 (b) that the respondent be detained in a
youth residential centre or a youth
justice centre, as the case may be, for a
separate period of detention in respect
of each offence but so that the separate
30 periods do not in the aggregate exceed
the aggregate period specified in the
original sentence.
(5) Subsection (4) applies to an appeal under
section 427 against a sentence which orders
35 the respondent to be detained in a youth
residential centre or a youth justice centre in
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respect of 2 or more offences for a specified
aggregate period.
(6) In imposing a sentence under subsection (2),
(3) or (4), the appellate court must not take
5 into account the element of double jeopardy
involved in the respondent being sentenced
again, in order to impose a less severe
sentence than the court would otherwise
consider appropriate.
10 (7) The appellate court may backdate a sentence
imposed under subsection (2), (3) or (4) to a
date not earlier than the date of the sentence
of the Children's Court that was set aside on
the appeal.
15 (8) A sentence imposed under subsection (2), (3)
or (4) is for all purposes to be regarded as a
sentence of the appellate court.
(9) Despite anything to the contrary in this Act,
on an appeal under section 427, the appellate
20 court may make a probation order, youth
supervision order or youth attendance order
in respect of a person even though at the time
of making that order the person is of or over
the age of 19 years but under 21 years.
25 Division 3--Procedure on appeals from
Children's Court
430 Late notice of appeal deemed to be
application for leave to appeal
(1) A notice of appeal filed after the end of the
30 period referred to in section 425(1) or 428 is
deemed to be an application for leave to
appeal on the grounds stated in the notice.
(2) The appellate court may grant leave to
appeal under subsection (1) and the appellant
35 may proceed with the appeal if--
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(a) the court considers that the failure to
file a notice of appeal within the period
referred to in section 425(1) or 428 was
due to exceptional circumstances; and
5 (b) the court is satisfied that the
respondent's case would not be
materially prejudiced because of the
delay.
430A Stay of order
10 (1) If an appellant appeals against sentence and
is not in custody because of that sentence,
the appeal operates as a stay of the sentence
(but not a conviction in respect of the
sentence) when the appellant files the notice
15 of appeal and signs the undertaking referred
to in section 425(4).
(2) If an appellant appeals against sentence and
is in custody because of that sentence, the
appeal operates as a stay of the sentence
20 (but not a conviction in respect of the
sentence) when--
(a) the appellant files the notice of appeal
and signs the undertaking referred to in
section 425(4); and
25 (b) the appellant enters bail, if bail is
granted under section 430B.
(3) This section is subject to section 29 of the
Road Safety Act 1986.
430B Bail pending appeal
30 (1) If an appellant is in custody because of the
sentence appealed against and wishes to be
released pending the appeal, the appellant--
(a) may apply to the Children's Court to be
released on bail; and
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(b) if he or she makes an application under
paragraph (a), must give reasonable
notice of the application to the
respondent to the appeal.
5 (2) If an application is made under subsection
(1), Division 1 of Part 5.2 applies as if the
appellant were a child taken into custody.
430C Abandonment of appeal
(1) Subject to subsections (3) and (4), an appeal
10 to the County Court or the Trial Division of
the Supreme Court may be abandoned by
filing a notice of abandonment of appeal
with the registrar of the County Court or the
prothonotary of the Supreme Court, as the
15 case requires.
(2) A notice of abandonment of appeal must be
in the form prescribed by the rules of the
appellate court.
(3) If an appellant appeals against both
20 conviction and sentence but does not pursue
the appeal against conviction, the appellant
must give written notice to the appellate
court and the respondent that the appeal
against conviction is abandoned.
25 (4) An appellant who has been sentenced to a
term of detention in a youth residential
centre or a youth justice centre but is not in
custody may abandon the appeal by--
(a) surrendering to the registrar of the
30 County Court or the prothonotary of the
Supreme Court (as the case requires);
and
(b) immediately filing a notice of
abandonment of appeal in accordance
35 with subsections (1) and (2).
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(5) If a person surrenders to the registrar of the
County Court or the prothonotary of the
Supreme Court in accordance with
subsection (4), the registrar or the
5 prothonotary (as the case requires) may issue
a warrant to detain the person in a youth
residential centre or a youth justice centre
(as the case requires).
(6) If an appellant abandons an appeal, the
10 appellate court must strike out the appeal.
(7) If an appeal is struck out under
subsection (6)--
(a) the sentence of the Children's Court is
reinstated and may be enforced as if an
15 appeal had not been made but, for the
purposes of the enforcement of any
penalty, time is deemed not to have run
during the period of any stay; and
(b) the registrar of the County Court or the
20 prothonotary of the Supreme Court
(as the case requires) must give to the
respondent or to the respondent's legal
practitioner a copy of the order striking
out the appeal; and
25 (c) the making of an order striking out an
appeal discharges the undertaking of
the appellant to proceed with the
appeal.
430D Appellant's failure to appear
30 (1) If an appellant (other than the DPP) fails to
appear at the time listed for the hearing of
the appeal, the appellate court may--
(a) strike out the appeal; or
(b) adjourn the proceeding on any terms
35 that it considers appropriate.
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(2) If an appeal is struck out under
subsection (1)(a)--
(a) the sentence of the Children's Court is
reinstated and may be enforced as if an
5 appeal had not been commenced but,
for the purposes of the enforcement of
any penalty, time is deemed not to have
run during the period of any stay; and
(b) the registrar of the County Court or the
10 prothonotary of the Supreme Court
(as the case requires) must give to the
respondent or to the respondent's legal
practitioner a copy of the order striking
out the appeal; and
15 (c) the making of an order striking out an
appeal discharges the undertaking of
the appellant to proceed with the
appeal.
(3) The appellate court, at any time, may set
20 aside an order striking out an appeal because
of the failure of the appellant to appear, if the
appellant satisfies the court that the failure to
appear was not due to fault or neglect on the
part of the appellant.
25 (4) An application under subsection (3) to set
aside an order may be made at any time on
notice in writing to the respondent served a
reasonable time before the making of the
application.
30 (5) Notice under subsection (4) must be served
in the same way as a notice of appeal.
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(6) If the appellate court grants an application
under subsection (3), the court--
(a) must order the reinstatement of the
appeal subject to the payment of any
5 costs that the court considers
appropriate; and
(b) may require the appellant to give a
further undertaking to proceed with the
appeal.
10 (7) On the reinstatement of an appeal under
subsection (6), the appeal operates as a stay
of the sentence (but not a conviction in
respect of the sentence) when--
(a) if required, the appellant signs the
15 undertaking referred to in
section 425(4); and
(b) if the appellant is in custody because of
the sentence appealed against and bail
is granted under section 430B, the
20 appellant enters bail.
(8) Subsection (7) is subject to section 29 of the
Road Safety Act 1986.
430E Respondent's failure to appear on appeal
by DPP
25 (1) If a respondent to an appeal under
section 427 by the DPP fails to appear at the
time listed for the hearing of the appeal, the
appellate court--
(a) may adjourn the proceeding on any
30 terms that it considers appropriate; or
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(b) if satisfied that notice of the appeal has
been given in accordance with
section 428, may hear and determine
the appeal in the absence of the
5 respondent.
Note
The appellate court cannot impose a sentence
that requires the consent of the respondent, for
example a youth supervision order, in the
10 absence of the respondent.
(2) If the appellate court adjourns the proceeding
and is satisfied that notice of the appeal has
been given in accordance with section 428,
the court may issue a warrant to arrest the
15 respondent and to bring the respondent
before the judge who issued the warrant or
any other judge of the court.
430F One notice of appeal for 2 or more
sentences
20 If 2 or more sentences are imposed in respect
of charges that have been heard together, the
appellant may give one notice of appeal for
all or any of those sentences.
430G Appeal to County Court or Trial Division
25 of Supreme Court authorised by other
Acts
If a person is authorised by or under any
other Act to appeal from an order of the
Children's Court to the County Court or the
30 Trial Division of the Supreme Court, subject
to that Act, the provisions of this Act with
respect to appeals to those courts apply.
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Division 4--Reports
430H Application of Division
This Division applies to an appeal under
Division 1 or 2.
5 Subdivision 1--Pre-sentence reports
430I Court may order pre-sentence report
(1) If the appellate court finds a person guilty of
an offence it may, before passing sentence,
order the Secretary or the Secretary to the
10 Department of Justice to submit a pre-
sentence report in respect of the person and
adjourn the proceeding to enable the report
to be prepared.
(2) The appellate court must order a pre-
15 sentence report if it is considering making a
youth residential centre order or a youth
justice centre order.
(3) If it appears to the appellate court that a
person found guilty of an offence is
20 intellectually disabled, the appellate court
must, before passing sentence, order a pre-
sentence report in respect of the person and
adjourn the proceeding to enable the report
to be prepared.
25 (4) If the Secretary has issued a statement in
respect of the person that the person has an
intellectual disability within the meaning of
the Disability Act 2006, a pre-sentence
report prepared in accordance with an order
30 under subsection (3) must--
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(a) include a copy of the statement; and
(b) specify disability services which are--
(i) available under that Act and
appropriate for the person; and
5 (ii) designed to reduce the likelihood
of the person committing further
offences.
(5) Sections 549 and 552 apply to pre-sentence
reports under this Subdivision as if--
10 (a) a reference to a report to which Part 7.8
applies were a reference to a pre-
sentence report under this Subdivision;
and
(b) a reference to the child were a reference
15 to the person; and
(c) a reference to the consent of the child's
parent were omitted if the person is no
longer a child at the time of the appeal.
Note
20 Section 549 requires a warning to be given to persons
being interviewed in the course of the preparation of
the report. Section 552 concerns the confidentiality of
reports.
(6) Sections 573 and 575 apply to pre-sentence
25 reports under this Division as if--
(a) a reference to the Court were a
reference to the appellate court; and
(b) a reference to the child were a reference
to the person; and
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(c) the reference in section 575(1) to
section 574 were a reference to
section 430K.
Note
5 Section 573 specifies the contents of a pre-sentence
report. Section 575 concerns access to a pre-sentence
report.
430J Notification of requirement to submit
pre-sentence report
10 If the appellate court orders the Secretary or
the Secretary to the Department of Justice to
submit a pre-sentence report under
section 430I, the registrar of the County
Court or the prothonotary of the Supreme
15 Court (as the case requires) must, within one
working day after the making of the order--
(a) orally notify him or her of the making
of the order; and
(b) forward a copy of the order to him or
20 her.
430K Pre-sentence report to be filed with court
A pre-sentence report ordered under
section 430I must be filed with the registrar
of the County Court or the prothonotary of
25 the Supreme Court (as the case requires) at
least 4 working days before the return date
and in any event not later than 21 days after
the report was ordered by the appellate court.
430L Attendance at appellate court of author of
30 pre-sentence report
(1) The author of a pre-sentence report under
this Subdivision may be required to attend to
give evidence at the hearing of the appeal to
which the report is relevant by a notice given
35 in accordance with subsection (2) by--
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(a) the person in respect of whom the
report has been prepared; or
(b) if the person is a child, a parent of that
child; or
5 (c) the Secretary; or
(d) the appellate court.
(2) A notice under subsection (1) must be--
(a) in writing; and
(b) filed with the registrar of the County
10 Court or the prothonotary of the
Supreme Court (as the case requires) as
soon as possible and, if practicable, not
later than 2 working days before the
hearing.
15 (3) On the filing of a notice under subsection
(1), the registrar of the County Court or the
prothonotary of the Supreme Court (as the
case requires) must immediately notify the
author of the report that his or her attendance
20 is required on the return date.
(4) A person is guilty of contempt of court if,
being the author of a report who has been
required to attend the appellate court under
subsection (1), he or she fails, without
25 sufficient excuse, to attend as required.
(5) The author of a report who has been required
under subsection (1) by the person or, if the
person is a child, a parent of the child or the
Secretary to attend at the hearing of an
30 appeal must, if required by the person or the
parent or the Secretary (as the case requires),
be called as a witness and may be cross-
examined on the contents of the report.
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430M Disputed pre-sentence report
(1) If any matter in a pre-sentence report under
this Subdivision is disputed by the person
who is the subject of the report, the appellate
5 court must not take the disputed matter into
consideration when determining the appeal
unless satisfied that the matter is true beyond
reasonable doubt.
(2) If--
10 (a) a pre-sentence report under this
Subdivision, or any part of a report, is
disputed by the person who is the
subject of the report; and
(b) the author of the report does not attend
15 the hearing of the appeal despite having
been required to attend under
section 430L(1)--
the appellate court must not take the report
or the part in dispute into consideration when
20 determining the proceeding unless the person
consents to the report or the part in dispute
being admitted into evidence.
Subdivision 2--Group conference reports
430N Group conference report
25 (1) If the appellate court finds a person guilty of
an offence and defers sentencing the person
for the purposes of a group conference, it
must order a group conference report.
(2) A group conference report must be prepared
30 by the convenor of the group conference.
(3) Sections 549 and 552 apply to group
conference reports under this Subdivision as
if--
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(a) a reference to a report to which Part 7.8
applies were a reference to a group
conference report under this
Subdivision; and
5 (b) a reference to the child were a reference
to the person; and
(c) a reference to the consent of the child's
parent were omitted if the person is no
longer a child at the time of the appeal.
10 Note
Section 549 requires a warning to be given to persons
being interviewed in the course of the preparation of
the report. Section 552 concerns the confidentiality of
reports.
15 (4) Sections 578 and 580 apply to group
conference reports under this Subdivision as
if--
(a) a reference to the child were a reference
to the person; and
20 (b) a reference to the Court were a
reference to the appellate court; and
(c) a reference to section 579 were a
reference to section 430O.
Note
25 Section 578 specifies the content of a group
conference report. Section 580 concerns access to a
group conference report.
430O Group conference report to be filed with
court
30 A group conference report must be filed with
the registrar of the County Court or the
prothonotary of the Supreme Court (as the
case requires) at least 4 working days before
the return date and in any event not later than
35 the date fixed by the appellate court.
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Division 5--Appeal to Supreme Court on a
question of law
430P Appeal to Supreme Court on a question of
law
5 (1) A party to a proceeding (other than a
committal proceeding) in the Criminal
Division of the Children's Court may appeal
to the Supreme Court on a question of law,
from a final order of the Children's Court in
10 that proceeding.
(2) If an informant who is a member of the
police force wishes to appeal under
subsection (1), the appeal may be brought
only by the DPP on behalf of the informant.
15 (3) An appeal under subsection (1) is
commenced by filing a notice of appeal in
accordance with the rules of the Supreme
Court within 28 days after the day on which
the order complained of was made.
20 (4) A copy of the notice of appeal must be
served on the respondent in accordance with
subsection (5) within 7 days after the day on
which the notice of appeal was filed.
(5) A copy of the notice of appeal must be
25 served--
(a) personally on a respondent who was the
accused; or
(b) on a respondent who was the informant
in accordance with section 392 of the
30 Criminal Procedure Act 2009.
(6) An appeal under subsection (1) does not
operate as a stay of any order made by the
Children's Court unless the Supreme Court
otherwise orders.
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(7) An appeal commenced after the end of the
period referred to in subsection (3) is deemed
to be an application for leave to appeal under
subsection (1).
5 (8) The Supreme Court may grant leave under
subsection (7) and the appellant may proceed
with the appeal if the Supreme Court--
(a) is of the opinion that the failure to
commence the appeal within the period
10 referred to in subsection (3) was due to
exceptional circumstances; and
(b) is satisfied that the case of any other
party to the appeal would not be
materially prejudiced because of the
15 delay.
(9) After hearing and determining the appeal, the
Supreme Court may make any order that it
thinks appropriate, including an order
remitting the case for rehearing to the
20 Children's Court with or without any
direction in law.
(10) An order made by the Supreme Court on an
appeal under subsection (1), other than an
order remitting the case for rehearing to the
25 Children's Court, may be enforced as an
order of the Supreme Court.
(11) The Supreme Court may provide for a stay
of the order or for admitting any person to
bail as it considers appropriate.
30 430Q Appeal on question of law precludes other
appeals
If a person appeals under this Division to the
Supreme Court on a question of law, that
person abandons finally and conclusively
35 any right under this or any other Act to
appeal to the County Court or the Trial
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Division of the Supreme Court in relation to
that proceeding.
Division 6--Appeal to Court of Appeal and
referral of point of law to Court of Appeal
5 430R Right of appeal against sentence of
detention imposed on appeal from
Children's Court
(1) In this section--
detention means detention in a youth justice
10 centre or youth residential centre.
(2) A person sentenced to a term of detention by
an appellate court under section 426 or 429
may appeal to the Court of Appeal against
the sentence if--
15 (a) in the proceeding that is the subject of
the appeal, the Children's Court had not
ordered that the person be detained; and
(b) the Court of Appeal gives the person
leave to appeal.
20 430S How appeal is commenced
(1) An application for leave to appeal under
section 430R is commenced by filing a
notice of application for leave to appeal in
accordance with the rules of court within
25 28 days after the day on which the person is
sentenced by the appellate court or any
extension of that period granted under
section 313 of the Criminal Procedure Act
2009.
30 (2) The Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of
application for leave to appeal within 7 days
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after the day on which the notice of
application is filed.
430T Determination of appeal
(1) On an appeal under section 430R, the Court
5 of Appeal must allow the appeal if the
appellant satisfies the court that--
(a) there is an error in the sentence
imposed; and
(b) a different sentence should be imposed.
10 (2) In any other case, the Court of Appeal must
dismiss an appeal under section 430R.
(3) If the Court of Appeal is considering
imposing a more severe sentence than the
sentence imposed by the appellate court, the
15 Court of Appeal must warn the appellant, as
early as possible during the hearing of the
appeal, that the appellant faces the possibility
that a more severe sentence may be imposed
than that imposed by the appellate court.
20 430U Orders etc. on successful appeal
(1) If the Court of Appeal allows an appeal
under section 430R, it must set aside the
sentence imposed by the appellate court and
either--
25 (a) impose the sentence, whether more or
less severe, that it considers
appropriate; or
(b) remit the matter to the appellate court.
(2) If the Court of Appeal remits a matter to the
30 appellate court under subsection (1)(b)--
(a) it may give directions concerning the
manner and scope of the further hearing
by the appellate court, including a
direction as to whether the hearing is to
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be conducted by the same judge or a
different judge; and
(b) the appellate court, whether constituted
by the same or a different judge, must
5 hear and determine the matter in
accordance with the directions, if any.
(3) On the hearing of an appeal referred to in
subsection (4), if the Court of Appeal finds
the appellant guilty of 2 or more of the
10 offences in respect of which the appellant
was sentenced, the Court of Appeal may
order--
(a) that the appellant be detained in a youth
residential centre or a youth justice
15 centre, as the case may be, for a period
not exceeding the aggregate period
specified in the original sentence; or
(b) that the appellant be detained in a youth
residential centre or a youth justice
20 centre, as the case may be, for a
separate period of detention in respect
of each offence but so that the separate
periods do not in the aggregate exceed
the aggregate period specified in the
25 original sentence.
(4) Subsection (3) applies to an appeal under
section 430R against--
(a) a sentence which orders the appellant to
be detained in a youth residential centre
30 or a youth justice centre in respect of
2 or more offences for a specified
aggregate period; or
(b) a conviction in respect of which a
sentence referred to in paragraph (a)
35 was imposed.
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(5) Despite anything to the contrary in this Act,
on an appeal under section 430R, the Court
of Appeal may make a probation order,
youth supervision order or youth attendance
5 order in respect of a person even though at
the time of making that order the person is of
or over the age of 19 years but under
21 years.
Note
10 Section 586 provides that the Supreme Court may exercise
the sentencing powers of the Children's Court.
430V Powers and procedure
Division 7 of Part 6.3 of Chapter 6 of the
Criminal Procedure Act 2009 applies as if
15 a reference to that Part were a reference to
this Division.
430W DPP may refer point of law to Court of
Appeal
(1) If a person is acquitted in respect of all or
20 any charges on an appeal to the County
Court or the Trial Division of the Supreme
Court from the Children's Court, the DPP
may refer to the Court of Appeal any point of
law that has arisen in the proceeding.
25 (2) The Court of Appeal is to consider a point of
law referred to it under subsection (1) and
give its opinion on it.
(3) An acquitted person who appears in court in
person or by a legal practitioner is entitled to
30 reasonable costs as settled by the Costs
Court.
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(4) A reference under this section does not affect
the hearing in relation to which the reference
is made or an acquittal in that hearing.
Division 7--Status of sentence and orders
5 during appeal period
430X Sentence not stayed during appeal period
(1) A sentence is not stayed during the appeal
period unless--
(a) this Act or any other Act otherwise
10 provides; or
(b) an order is made under subsection (2).
(2) If a notice of application for leave to appeal
is filed under section 430S, the Court of
Appeal may stay a sentence if satisfied that it
15 is in the interests of justice to do so.
Note
See the definitions of appeal period and sentence in
section 3.
430Y Bail pending appeal
20 (1) A person detained in a youth residential
centre or youth justice centre who appeals, or
applies for leave to appeal, to the Court of
Appeal may apply to the Court of Appeal to
be granted bail.
25 (2) On an application under subsection (1), the
Court of Appeal may grant the detained
person bail pending the appeal.
Note
See section 323 of the Criminal Procedure Act 2009
30 for bail following appeal.
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430Z Stay of certain orders during appeal
period
(1) This section applies to an order under
section 84, 85B or 86 of the Sentencing Act
5 1991 made by the Trial Division of the
Supreme Court or the County Court.
Note
See section 83G(1) of the Sentencing Act 1991 in
relation to superannuation orders.
10 (2) Unless the Trial Division of the Supreme
Court or the County Court otherwise directs,
an order referred to in subsection (1) is
stayed during the appeal period.
(3) If an order is stayed under subsection (2) and
15 the conviction is set aside on appeal, the
order does not take effect unless the Court of
appeal otherwise orders.
(4) The Court of Appeal may set aside or vary
an order made by the Trial Division of the
20 Supreme Court or the County Court under
subsection (2).
(5) Rules of court may provide for securing the
safe custody during the appeal period of any
property the subject of an order referred to in
25 subsection (1).
430ZA Execution of order for forfeiture or
destruction of property
(1) If a court orders the forfeiture or destruction
of any property in relation to an offence, the
30 property must not be forfeited or destroyed
during the appeal period unless earlier
forfeiture or destruction is permitted by any
other law.
(2) This section does not apply to orders made
35 under the Confiscation Act 1997.
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(3) Rules of court may provide for securing the
safe custody during the appeal period of any
property the subject of an order referred to in
subsection (1).
5 Division 8--Miscellaneous
430ZB Appeal by child under 15 years
If an appellant is a child under the age of
15 years, the appeal may be made on the
child's behalf and in the name of the child
10 by--
(a) the child's parent; or
(b) in the absence of the parent, the
Secretary.
430ZC Parent may enter into bail
15 (1) If the child is granted bail with or without a
surety pending an appeal under this Part but
it appears to the court granting bail that the
child does not have the capacity or
understanding to enter into bail, the child's
20 parent or any other person may enter into
bail as principal.
(2) The bail entered into under subsection (1)
must be--
(a) in an amount determined by the court
25 granting bail; and
(b) on condition that the person produce
the child at the court to which the
appeal is made at a place and on a day
to be fixed by the registrar of the
30 County Court or as directed by the
court to which the appeal is made
(as the case requires).
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430ZD Appeals to be heard in open court
(1) Proceedings on an appeal under this Part are,
subject to subsection (2), to be conducted in
open court.
5 (2) The court hearing the appeal may order
that--
(a) the whole or any part of a proceeding
be heard in closed court; or
(b) only persons or classes of persons
10 specified by it may be present during
the whole or any part of a proceeding.
(3) A court may make an order under subsection
(2) on the application of a party or any other
person who has a direct interest in the
15 proceeding or on its own motion.
(4) Any party to the proceeding and any other
interested person has standing to support or
oppose an application under subsection (3).
(5) If an order has been made under this section,
20 the court hearing the appeal must cause a
copy of the order to be posted on a door of,
or in another conspicuous place at, the place
at which the court is sitting.
(6) An order posted under this section must not
25 contain any particulars likely to lead to the
identification of a child who is a party to the
proceeding.
(7) A person must not contravene an order made
and posted under this section.
30 Penalty:
(a) In the case of a person of or above the
age of 18 years, 25 penalty units or
6 months imprisonment; or
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Part 3--Amendment of Children, Youth and Families Act 2005
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(b) In the case of a child of or above the
age of 15 years, 25 penalty units or
detention in a youth justice centre for
6 months; or
5 (c) In the case of a child under the age of
15 years, 12 penalty units or detention
in a youth residential centre for
3 months.
430ZE Legal representation
10 Section 524 applies, with any necessary
modifications, to appeals under this Part as
if--
(a) a reference to the Court or the Criminal
Division were a reference to the court
15 hearing an appeal under this Part; and
(b) a reference to a proceeding referred to
in section 525(2) were a reference to an
appeal under this Part.
430ZF Interpreters
20 If the court hearing an appeal under this Part
is satisfied that a party to the appeal has a
difficulty in communicating in the English
language that is sufficient to prevent him or
her from understanding, or participating in,
25 the appeal, the court must not hear and
determine the appeal without an interpreter
interpreting it.
430ZG Explanation of and reasons for orders
(1) If the court hearing an appeal makes an order
30 in relation to bail or makes a final order in
relation to the appeal, the court must explain
the meaning and effect of the order as plainly
and simply as possible and in a way which it
considers the parties to the appeal will
35 understand.
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(2) An explanation under subsection (1) must be
given through an interpreter to a party to the
appeal who the court considers has a
difficulty in communicating in the English
5 language that is sufficient to prevent him or
her from understanding the explanation
given by the court.
Division 9--Costs on appeal
430ZH No costs on appeal or new hearing
10 No costs are to be allowed to a party to--
(a) an appeal under this Part; or
(b) a new hearing; or
(c) a proceeding preliminary or incidental
to an appeal or new hearing.
15 __________________".
70 Establishment of corrective services
In section 478(a) of the Children, Youth and
Families Act 2005, after "trial or" insert
"the hearing of a charge or awaiting".
20 71 Power of arrest in youth justice centre
In section 491(2) of the Children, Youth and
Families Act 2005--
(a) for "Section 49 of the Magistrates' Court
Act 1989" substitute "Section 333 of the
25 Criminal Procedure Act 2009"; and
(b) for "a defendant" substitute "an accused";
and
(c) for "the defendant" substitute "the accused".
72 Assignment of magistrates
30 Section 507(5) of the Children, Youth and
Families Act 2005 is repealed.
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 73
73 Jurisdiction of Criminal Division
(1) In section 516(1) of the Children, Youth and
Families Act 2005--
(a) in paragraph (c), for "defendant" (wherever
5 occurring) substitute "child";
(b) in paragraph (e), for "sentencing order"
(wherever occurring) substitute "sentence".
(2) In section 516(4) of the Children, Youth and
Families Act 2005--
10 (a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "or in accordance with section 49 of the
Magistrates' Court Act 1989" substitute
"or deal with the accused in accordance with
15 section 333 of the Criminal Procedure Act
2009".
(3) In section 516(5) of the Children, Youth and
Families Act 2005--
(a) for "defendant" (wherever occurring)
20 substitute "accused";
(b) in paragraph (f), for "sentencing orders"
substitute "sentences".
(4) In section 516(6) of the Children, Youth and
Families Act 2005--
25 (a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "or in accordance with section 49 of the
Magistrates' Court Act 1989" substitute
"or deal with the accused in accordance with
30 section 333 of the Criminal Procedure Act
2009".
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Part 3--Amendment of Children, Youth and Families Act 2005
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74 Koori Court (Criminal Division)
In the Children, Youth and Families Act 2005--
(a) in section 518(b)--
(i) for "sentencing order made" substitute
5 "sentence imposed";
(ii) for "sentencing order" (where secondly
occurring) substitute "sentence";
(b) in section 519(1), for "sentencing order
made" substitute "sentence imposed";
10 (c) in section 520(1), for "sentencing order to
make" substitute "sentence to impose".
75 Neighbourhood Justice Division
In the Children, Youth and Families Act 2005--
(a) in section 520C(4)(c)--
15 (i) for "sentencing order made" substitute
"sentence imposed";
(ii) for "sentencing order" (where secondly
occurring) substitute "sentence";
(b) in section 520E(1), for "sentencing order to
20 make" substitute "sentence to impose".
76 Procedural guidelines
In section 522(4) of the Children, Youth and
Families Act 2005, after "reviewed," insert
"set aside,".
25 77 Explanation of and reasons for orders
In the Children, Youth and Families Act 2005--
(a) in section 527(4)(l) and (m), for "sentencing
order" substitute "sentence";
(b) in section 527(12), after "reviewed," insert
30 "set aside,".
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 78
78 Powers of Children's Court
For section 528(2) of the Children, Youth and
Families Act 2005 substitute--
"(2) Unless the contrary intention appears in this
5 Act or any other Act--
(a) the Magistrates' Court Act 1989
(except section 58 and Part 5); and
(b) the Criminal Procedure Act 2009 in
relation to proceedings in the
10 Magistrates' Court (other than notice to
appear and appeals); and
(c) subject to any rules of court made
under this Act, the regulations and rules
of court made under those Acts--
15 apply with any necessary modifications to
the Children's Court and proceedings in the
Court and, without limiting the application
of section 419, to the issue of process in the
same manner and to the same extent as they
20 apply to the Magistrates' Court, the
proceedings of that Court and the issue of
process.".
79 Process
In section 538(4) of the Children, Youth and
25 Families Act 2005, for "section 35 of the
Magistrates' Court Act 1989" substitute
"section 399 of the Criminal Procedure Act
2009".
80 Pre-sentence reports
30 In the Children, Youth and Families Act 2005--
(a) in section 573(1)(c), for "sentencing orders"
substitute "sentences";
(b) in section 573(2)(b) and (3), for "sentencing
order" substitute "sentence".
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 81
81 Witness or other person who has previously
appeared in Children's Court
In the Children, Youth and Families Act 2005--
(a) in section 583(1), for "date of the charge,"
5 substitute "date of the charge-sheet charging
the offence or the";
(b) in the heading to section 584, for
"Defendant" substitute "Accused";
(c) in section 584(1), for "date of the charge,"
10 substitute "date of the charge-sheet charging
the offence or the".
82 Transfer of proceedings
In section 585 of the Children, Youth and
Families Act 2005, for "defendant" (wherever
15 occurring) substitute "accused".
83 Powers of Supreme Court or County Court
In section 586 of the Children, Youth and
Families Act 2005, for "make any sentencing
order which the Children's Court may make"
20 substitute "impose any sentence which the
Children's Court may impose".
84 Rules
(1) After section 588(1) of the Children, Youth and
Families Act 2005 insert--
25 "(1A) The President together with 2 or more
magistrates for the Court may jointly make
Rules for or with respect to--
(a) prescribing forms for the purposes of
the Criminal Division of the Court;
30 (b) generally any matter relating to the
practice and procedure of the Criminal
Division of the Court.".
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 85
(2) In section 588(2) of the Children, Youth and
Families Act 2005, for "under subsection (1)"
substitute "made under this section".
85 Supreme Court--limitation of jurisdiction
5 At the end of section 599 of the Children, Youth
and Families Act 2005 insert--
"(2) It is the intention of section 430Q to alter or
vary section 85 of the Constitution Act
1975.".
10 86 New sections 609 and 610 inserted
After section 608 of the Children, Youth and
Families Act 2005 insert--
"609 Transitional provision--Criminal
Procedure Act 2009
15 (1) Part 5.1A as inserted by section 429 of the
Criminal Procedure Act 2009 applies to a
proceeding for a summary offence if the
offence is alleged to have been committed on
or after the commencement of section 429 of
20 that Act.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between two dates, one before and one on or
after the commencement of section 429 of
25 the Criminal Procedure Act 2009, the
offence is alleged to have been committed
after that commencement.
(3) Section 516A as inserted by section 430 of
the Criminal Procedure Act 2009 applies to
30 a committal proceeding if the criminal
proceeding commenced on or after the
commencement of section 430 of that Act.
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 86
610 Transitional provision--Criminal
Procedure Amendment (Consequential
and Transitional Provisions) Act 2009
(1) Section 328 as amended by section 60 of the
5 Criminal Procedure Amendment
(Consequential and Transitional
Provisions) Act 2009 applies to an appeal in
relation to--
(a) an order referred to in section 328(1)
10 made on or after the commencement of
section 60 of that Act; or
(b) the dismissal of an application referred
to in section 328(1) on or after the
commencement of section 60 of that
15 Act.
(2) Divisions 1, 2 and 3 of Part 5.4, as inserted
by section 69 of the Criminal Procedure
Amendment (Consequential and
Transitional Provisions) Act 2009, apply to
20 an appeal in relation to a sentence imposed
by the Children's Court on or after the
commencement of section 69 of that Act.
(3) Division 6 of Part 5.4 (other than section
430W), as inserted by section 69 of the
25 Criminal Procedure Amendment
(Consequential and Transitional
Provisions) Act 2009, applies to an appeal
from a final order of the Children's Court
made on or after the commencement of
30 section 69 of that Act.
(4) Section 430W, as inserted by section 69 of
the Criminal Procedure Amendment
(Consequential and Transitional
Provisions) Act 2009, applies to an acquittal
35 recorded on or after the commencement of
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Part 3--Amendment of Children, Youth and Families Act 2005
s. 87
section 69 of that Act, irrespective of when
the proceeding commenced.
(5) Division 7 of Part 5.4, as inserted by
section 69 of the Criminal Procedure
5 Amendment (Consequential and
Transitional Provisions) Act 2009, applies
to an appeal where the sentence is imposed
on or after the commencement of section 69
of that Act.".
10 87 Amendment of Schedules
(1) In Schedule 1 to the Children, Youth and
Families Act 2005--
(a) in clause 5(d), for "sentencing order"
substitute "sentence";
15 (b) in clause 12, for "sentencing order"
(wherever occurring) substitute "sentence";
(c) in clause 16(2), for "sentencing order"
(wherever occurring) substitute "sentence".
(2) In Schedule 2 to the Children, Youth and
20 Families Act 2005, in clause 15(d), for "charge"
substitute "charge-sheet".
(3) In Schedule 3 to the Children, Youth and
Families Act 2005--
(a) in clauses 3(2)(h) and 3(2)(i), for "charge"
25 substitute "charge-sheet"; and
(b) in clause 6(6), for "charge" substitute
"charge-sheet".
__________________
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Bill 2009
Part 4--Amendment of Public Prosecutions Act 1994
s. 88
PART 4--AMENDMENT OF PUBLIC PROSECUTIONS
ACT 1994
88 Definitions
See: (1) In section 3 of the Public Prosecutions Act 1994
Act No.
5 43/1994. insert the following definitions--
Reprint No. 3
as at "direct indictment has the same meaning as in the
21 March
2007
Criminal Procedure Act 2009;
and
amending discontinue a prosecution has the meaning given
Act Nos by Part 5.4 of Chapter 5 of the Criminal
23/2008,
10 77/2008, Procedure Act 2009;
83/2008 and
4/2009. related offences has the same meaning as in the
LawToday:
www.
Criminal Procedure Act 2009;".
legislation.
vic.gov.au
(2) In section 3 of the Public Prosecutions Act 1994,
in the definition of special decision--
15 (a) for paragraph (a) substitute--
"(a) to file a direct indictment against a
person for an offence except where--
(i) the person, or a legal practitioner
representing the person, has
20 consented in writing to an
indictment being filed for that
offence; or
(ii) the person, or a legal practitioner
representing the person, has
25 indicated in writing an intention to
plead guilty to that offence; or";
(b) in paragraph (b)--
(i) for "to enter a nolle prosequi, or not to
take within the period prescribed under
30 section 353(2) of the Crimes Act 1958
any step mentioned in that section,"
substitute "to discontinue a
prosecution, or not to file an indictment
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Part 4--Amendment of Public Prosecutions Act 1994
s. 89
within the period specified in section
163(1), (2) or (3) of the Criminal
Procedure Act 2009, as the case
requires,";
5 (ii) omit "on a committal proceeding";
(c) in paragraph (d)--
(i) for "make presentment of" substitute
"file an indictment against"; and
(ii) for "make" (where secondly occurring)
10 substitute "file"; and
(iii) for "making, presentment of"
substitute "filing, an indictment
against";
(d) in paragraph (e)--
15 (i) for "enter a nolle prosequi" substitute
"discontinue a prosecution"; and
(ii) for "the entering of a nolle prosequi"
substitute "discontinuing the
prosecution";
20 (e) in paragraph (f)--
(i) for "a presentment or of a count or
counts in a presentment" substitute
"an indictment or of a charge or charges
on an indictment"; and
25 (ii) for "presentment or in the count or
counts" substitute "indictment or in the
charge or charges on the indictment".
89 Chief Crown Prosecutor is responsible to Director
In section 20(2)(a) of the Public Prosecutions
30 Act 1994, for "making presentment of" substitute
"filing an indictment against".
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Part 4--Amendment of Public Prosecutions Act 1994
s. 90
90 Functions of Director
(1) After section 22(1)(a) of the Public Prosecutions
Act 1994 insert--
"(ab) to take over and conduct any proceeding in
5 respect of--
(i) a summary offence which has been
transferred to the Supreme Court or the
County Court under section 145 of the
Criminal Procedure Act 2009;
10 (ii) a summary offence which is to be heard
and determined by the Supreme Court
or the County Court under section 242
or 243 of the Criminal Procedure Act
2009;".
15 (2) In section 22(1)(b)(i) of the Public Prosecutions
Act 1994, for "Magistrates' Court Act 1989"
substitute "Criminal Procedure Act 2009".
(3) In section 22(1)(b)(ii) of the Public Prosecutions
Act 1994 omit ", other than proceedings in
20 respect of an indictable offence that are
consequent on a finding of a grand jury under
section 354 of the Crimes Act 1958".
91 Power to discontinue criminal proceedings
Section 25(1) of the Public Prosecutions Act
25 1994 is repealed.
92 Delegation
(1) In section 30(1)(a) of the Public Prosecutions
Act 1994, for "make presentment of" substitute
"file an indictment against".
30 (2) In section 30(2) of the Public Prosecutions Act
1994--
(a) for "enter a nolle prosequi in a criminal
proceeding" substitute "discontinue a
prosecution"; and
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Part 4--Amendment of Public Prosecutions Act 1994
s. 93
(b) for "enter the nolle prosequi" substitute
"discontinue the prosecution".
93 Functions of Crown Prosecutors
(1) In section 36(1)(a) of the Public Prosecutions
5 Act 1994--
(a) for "make presentment of" substitute
"file an indictment against"; and
(b) for "section 353 of the Crimes Act 1958"
substitute "Part 5.2 of Chapter 5 of the
10 Criminal Procedure Act 2009".
(2) In section 36(2) of the Public Prosecutions Act
1994--
(a) for "make presentment of" substitute
"file an indictment against"; and
15 (b) for "make presentment for" substitute
"file an indictment for".
(3) In section 36(5)(a) of the Public Prosecutions
Act 1994, for "making presentment of" substitute
"filing an indictment against".
20 94 Functions of Solicitor for Public Prosecutions
In section 38(1)(b) of the Public Prosecutions
Act 1994, for "Prosecutors;" substitute
"Prosecutors.".
95 Outcome of trial cannot be challenged on ground
25 relating to special decision
In section 47 of the Public Prosecutions Act
1994--
(a) for "on presentment" substitute
"on indictment"; and
30 (b) after "quashed" insert ", set aside"; and
(c) for "making of the presentment" substitute
"filing of the indictment".
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Part 4--Amendment of Public Prosecutions Act 1994
s. 96
96 Substitution of section 49
For section 49 of the Public Prosecutions Act
1994 substitute--
"49 Supreme Court--limitation of jurisdiction
5 It is the intention of this section to alter or
vary section 85 of the Constitution Act
1975 to the extent necessary to prevent the
Supreme Court from--
(a) entertaining any proceeding in which a
10 verdict returned by a jury on a trial on
indictment or an order made by a court
on or in connection with such a verdict
is sought to be challenged, appealed
against, reviewed, quashed, set aside or
15 called in question on the ground that
the filing of the indictment was
dependent on the making of a special
decision and that the procedures
prescribed by this Act with respect to
20 the making of special decisions had not
been complied with in relation to that
special decision; or
(b) entertaining any application by a person
for an order in the nature of prohibition,
25 certiorari or mandamus or for a
declaration or injunction or for any
other relief in respect of a verdict
returned by a jury on a trial on
indictment or an order made by a court
30 on or in connection with such a verdict
on the ground referred to in
paragraph (a).".
__________________
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Bill 2009
Part 5--Consequential and Other Amendments to Other Acts
s. 97
PART 5--CONSEQUENTIAL AND OTHER AMENDMENTS
TO OTHER ACTS
97 Consequential and other amendments
On the coming into operation of an item in the
5 Schedule, the Act specified in the heading to that
item is amended as set out in that item.
__________________
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Bill 2009
Part 6--Repeal
s. 98
PART 6--REPEAL
98 Repeal of Act
This Act is repealed on 1 January 2012.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
__________________
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Bill 2009
Sch.
SCHEDULE
Section 97
CONSEQUENTIAL AND OTHER AMENDMENTS
1 Aboriginal Heritage Act 2006
5 1.1 In section 30(2), for "sentencing order" substitute
"sentence".
1.2 In section 35(1), for "sentencing order" substitute
"sentence".
2 Aboriginal Lands Act 1970
10 2.1 In section 25(4), for "charge for" substitute
"charge-sheet charging".
3 Accident Compensation Act 1985
3.1 In section 252(1)--
(a) for "charge for an offence" substitute
15 "charge-sheet charging an offence"; and
(b) for "or for an offence" (wherever occurring)
substitute "or an offence"; and
(c) for "to file charges" substitute "to file
charge-sheets".
20 3.2 In section 252(1A), for "charge for an offence"
substitute "charge-sheet charging an offence".
4 Accident Towing Services Act 2007
4.1 For section 3(3)(a) substitute--
"(a) against whom an indictment charging the
25 offence has been filed; or".
4.2 In section 3(3)(b), for "a charge has been filed for
the offence" substitute "a charge-sheet charging
the offence has been filed".
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Sch.
4.3 In section 3(4)(a), for "by the entering of a nolle
prosequi" substitute "by the discontinuance of the
prosecution".
4.4 In section 3(4)(c), for "against whom the charge
5 has been laid" substitute "charged".
4.5 In section 3(4)(d)--
(a) for "against whom the charge has been laid"
substitute "charged"; and
(b) omit "that was the subject of the charge".
10 4.6 In section 128(7)(c), for "the charge" substitute
"the offence charged".
4.7 In section 193(3), for "defendant" substitute
"accused".
4.8 In section 204(3), for "charge" substitute
15 "charge-sheet".
5 Administrative Law Act 1978
5.1 In section 12, after "quashing" insert "or setting
aside".
6 Agricultural and Veterinary Chemicals (Victoria)
20 Act 1994
6.1 In section 3(1), in the definition of instrument--
(a) in paragraph (g), after "information or
complaint laid," insert "charge-sheet filed,";
and
25 (b) in paragraph (h) omit "presentment,".
7 Alcoholics and Drug-dependent Persons Act 1968
7.1 In section 14(2), for "appearing" substitute
"attendance".
7.2 In section 14(3), for "Division 4 of Part 4 of the
30 Magistrates' Court Act 1989 with respect to
appeals" substitute "Chapter 6 of the Criminal
Procedure Act 2009".
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Sch.
8 Appeal Costs Act 1998
8.1 In section 14(1), after "quashes" insert "or sets
aside".
8.2 In section 15(1), for paragraphs (a), (b) and (c)
5 substitute--
"(a) section 257, 260, 287 or 291 of the Criminal
Procedure Act 2009; or
(b) section 427 of the Children, Youth and
Families Act 2005--".
10 8.3 In section 17(1)(b), for "a defendant" substitute
"an accused".
8.4 In section 17(4), for "a defendant" substitute
"an accused".
8.5 In section 18(a), for subparagraphs (ii) and (iii)
15 substitute--
"(ii) under section 14A or 24AA of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997; or".
8.6 For section 18(b) substitute--
20 "(b) an investigation under Part 2 of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997 into the fitness of an
accused to stand trial; or".
9 Australian Crime Commission (State Provisions)
25 Act 2003
9.1 In section 20(7), for "section 53(1) of the
Magistrates' Court Act 1989" substitute
"section 28(1) of the Criminal Procedure Act
2009".
30 10 Australian Grands Prix Act 1994
10.1 In section 45(2)(b), for "defendant" substitute
"accused".
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11 Bail Act 1977
11.1 For "accused person" (wherever occurring)
substitute "accused".
11.2 In section 3, in the definition of undertaking, for
5 "appear" substitute "attend".
11.3 In section 5(1)(a), for "appear" substitute
"attend".
11.4 In section 5(2)(a), for "appears" substitute
"attends".
10 11.5 In the heading to section 5A, for "defendant"
substitute "accused".
11.6 In section 5A, for "defendant" (wherever
occurring) substitute "accused".
11.7 In the note at the foot of section 5A, for
15 "section 49 of the Magistrates' Court Act 1989"
substitute "section 333 of the Criminal
Procedure Act 2009".
11.8 In section 6, for "appear" substitute "attend".
11.9 In section 7(1)(a), for "preliminary inquiry"
20 substitute "committal proceeding".
11.10 In section 11(5), for "defendant" substitute
"accused".
11.11 In section 12(1), for "appearance" substitute
"attendance".
25 11.12 In section 12(2), for "appearance" substitute
"attendance".
11.13 In section 15(1)--
(a) for "appearance" (wherever occurring)
substitute "attendance"; and
30 (b) for "a preliminary examination" substitute
"the first hearing in a committal proceeding".
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11.14 In section 16(3)--
(a) for "appear" (wherever occurring) substitute
"attend"; and
(b) for "appearance" substitute "attendance".
5 11.15 In section 16A, for "appearance" substitute
"attendance".
11.16 In section 17(2), for "appearance" substitute
"attendance".
11.17 In section 18(1), for "pending a preliminary
10 hearing or trial for an offence or pending the
determination of the matter of an information"
substitute "pending the summary hearing of a
charge or a committal proceeding or a trial".
11.18 In section 18A(6), for "quash" substitute
15 "set aside".
11.19 In section 18A(9), for "appearance" substitute
"attendance".
11.20 In section 19(1), for "appear" substitute "attend".
11.21 In section 19(2)--
20 (a) for "appear" substitute "attend"; and
(b) for "appearance" substitute "attendance".
11.22 In section 19(3)--
(a) for "appear" substitute "attend"; and
(b) for "appearance" substitute "attendance".
25 11.23 In section 21(1), for "appear" (wherever
occurring) substitute "attend".
11.24 In section 22, for "appear" substitute "attend".
11.25 In section 23--
(a) for "appearance" (wherever occurring)
30 substitute "attendance"; and
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(b) for "a defendant" substitute "an accused";
and
(c) for "the defendant" (wherever occurring)
substitute "the accused".
5 11.26 In section 24(1), for "appearance" (wherever
occurring) substitute "attendance".
11.27 In section 24(2)(b), for "appear" substitute
"attend".
11.28 In section 24(3)(a)(i), for "appear" substitute
10 "attend".
11.29 In section 25, for "the defendant" (wherever
occurring) substitute "the accused".
11.30 In section 26(2)--
(a) for "appearance" substitute "attendance";
15 and
(b) for "appear" substitute "attend".
11.31 In section 28, for "appearance" substitute
"attendance".
11.32 In section 29(1)--
20 (a) for "appear" substitute "attend"; and
(b) for "appearance" substitute "attendance".
11.33 In section 29(2), for "appearance" (wherever
occurring) substitute "attendance".
11.34 In section 30(1), for "appear" substitute "attend".
25 11.35 In section 30(2)--
(a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "appear" substitute "attend".
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11.36 In section 30(3), for "appearance" substitute
"attendance".
11.37 In section 31(1), for "appearance" substitute
"attendance".
5 11.38 Insert the following heading to section 32--
"Deposit forfeited on failure to attend".
11.39 In section 32, for "appear" substitute "attend".
11.40 In section 33(b) and (c), for "accused persons"
substitute "an accused".
10 12 Biological Control Act 1986
12.1 In section 45(3), for "defendant" substitute
"accused".
13 Building Act 1993
13.1 In section 118(3), for "defendant" substitute
15 "accused".
14 Bus Safety Act 2009
14.1 In section 3(4)(a)--
(a) omit "a presentment has been made or"; and
(b) for "laid" substitute "filed".
20 14.2 In section 3(4)(b), for "a charge has been filed for
the offence" substitute "a charge-sheet charging
the offence has been filed".
14.3 In section 3(5)(a), for "by the entering of a nolle
prosequi" substitute "by the discontinuance of the
25 prosecution".
14.4 In section 3(5)(c), for "against whom the charge
has been laid" substitute "charged".
14.5 In section 3(5)(d)--
(a) for "against whom the charge has been laid"
30 substitute "charged"; and
(b) omit "that was the subject of the charge".
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14.6 In the note at the foot of section 15(2), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
5 2009".
14.7 In the note at the foot of section 16(4), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
10 2009".
14.8 In the note at the foot of section 17(2), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
15 2009".
14.9 In the note at the foot of section 18(2), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
20 2009".
14.10 For Division 1 of Part 9 substitute--
'Division 1--Criminal Procedure Act 2009
79 Amendment of Schedule 2--Indictable
offences that may be heard and
25 determined summarily
After item 3 of Schedule 2 to the Criminal
Procedure Act 2009 insert--
"3A Bus Safety Act 2009
Indictable offences under the Bus
30 Safety Act 2009.".'.
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15 Business Franchise (Tobacco) Act 1974
15.1 In section 19E(5), for "defendant" substitute
"accused".
15.2 In section 19E(6), for "defendant" (wherever
5 occurring) substitute "accused".
16 Casino Control Act 1991
16.1 In section 60(4), for "defendant" substitute
"accused".
17 Cemeteries and Crematoria Act 2003
10 17.1 In section 175, for "section 26 of the Magistrates'
Court Act 1989" substitute "section 7 of the
Criminal Procedure Act 2009".
18 Charter of Human Rights and Responsibilities
Act 2006
15 18.1 In section 3(1) insert the following definition--
"trial, in relation to the Magistrates' Court or the
Children's Court, means hearing of a
charge;".
18.2 In section 21(6), for "appear" substitute "attend".
20 18.3 In section 33(3), after "Supreme Court" insert
"or by the County Court".
18.4 After section 49(3) insert--
"(4) Section 33(3) as amended by item 18.3 of the
Schedule to the Criminal Procedure
25 Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to a question referred under section 33(1) on
or after the commencement of that item.".
19 Children's Services Act 1996
30 19.1 In section 8(2), for "defendant" substitute
"accused".
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20 Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995
20.1 In section 12(2)(a), for "defendant" substitute
"accused".
5 20.2 In section 13(2)--
(a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's employee or agent"
(wherever occurring) substitute "employee
10 or agent of the accused".
20.3 In section 14(3)--
(a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's employee or agent"
15 (wherever occurring) substitute "employee
or agent of the accused".
20.4 In section 19(2), for "defendant" substitute
"accused".
20.5 In section 20(3)--
20 (a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's employee or agent"
(wherever occurring) substitute "employee
or agent of the accused"; and
25 (c) for "defendant's employer" substitute
"employer of the accused".
20.6 In section 20(6)--
(a) for "defendant" substitute "accused"; and
(b) for "defendant's employee or agent"
30 substitute "employee or agent of the
accused".
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20.7 In section 22(2), for "defendant" substitute
"accused".
20.8 In section 25(3), for "defendant" substitute
"accused".
5 20.9 In section 29(2), for "defendant" (wherever
occurring) substitute "accused".
20.10 In section 30(2), for "defendant" (wherever
occurring) substitute "accused".
20.11 In section 30(5), for "defendant" substitute
10 "accused".
20.12 In section 33(2)--
(a) for "defendant" substitute "accused"; and
(b) for "defendant's employee or agent"
substitute "employee or agent of the
15 accused".
20.13 In section 39(2)(a), for "defendant" substitute
"accused".
20.14 In section 41(2), for "defendant" substitute
"accused".
20 20.15 In section 42(3)--
(a) for "defendant" substitute "accused"; and
(b) for "defendant's employee or agent"
substitute "employee or agent of the
accused".
25 20.16 In section 44(2), for "defendant" substitute
"accused".
20.17 In section 57(2), for "defendant" substitute
"accused".
20.18 In section 58(2) and (5), for "defendant"
30 (wherever occurring) substitute "accused".
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20.19 In section 60(4), for "defendant" substitute
"accused".
20.20 In section 60A(4), for "defendant" substitute
"accused".
5 20.21 In section 61(4), for "defendant" substitute
"accused".
20.22 In section 62(3), for "defendant" substitute
"accused".
20.23 In section 62A(3), for "defendant" substitute
10 "accused".
20.24 In section 62B(3), for "defendant" substitute
"accused".
20.25 In section 77(2), for "defendant" substitute
"accused".
15 21 Collusive Practices Act 1965
21.1 In section 3(2) and (4), for "defendant" substitute
"accused".
21.2 After section 11 insert--
"12 Transitional
20 (1) Sections 3(1), 3(3) and 7, as amended by
section 435(4) of the Criminal Procedure
Act 2009 apply to an offence alleged to have
been committed on or after the
commencement of section 435(4) of that Act.
25 (2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between two dates, one before and one on or
after the commencement of section 435(4) of
the Criminal Procedure Act 2009, the
30 offence is alleged to have been committed
before that commencement.".
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22 Competition Policy Reform (Victoria) Act 1995
22.1 In section 3(1), in the definition of instrument--
(a) in paragraph (g), after "information or
complaint laid," insert "charge-sheet filed,";
5 and
(b) in paragraph (h) omit "presentment,".
22.2 In section 24(2)(b), after "trial" insert "or hearing
of a charge".
23 Confiscation Act 1997
10 23.1 In section 3(1) insert the following definition--
"accused, in relation to an offence, means the
person who--
(a) has been or will be charged with the
offence; or
15 (b) has been convicted of the offence--
and in respect of whom an application is
made under this Act;".
23.2 In section 3(1), in the definition of appeal period,
for "a defendant's conviction of an offence"
20 substitute "the conviction of an accused of an
offence".
23.3 In section 3(1), the definition of defendant is
repealed.
23.4 In section 3(1), in the definition of derived
25 property, for "defendant" (wherever occurring)
substitute "accused".
23.5 In section 3(1), in the definition of gift, for
"defendant" substitute "accused".
23.6 In section 3(1), in the definition of tainted
30 property, for "defendant" substitute "accused".
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23.7 Insert the following heading to section 6--
"Meaning of setting aside a conviction".
23.8 In section 6--
(a) for "quashed" (where first occurring)
5 substitute "set aside"; and
(b) in paragraphs (a), (b) and (c) omit "quashed
or".
23.9 For section 7(1)(a) substitute--
"(a) an indictment has been filed against the
10 person for the offence; or".
23.10 In section 7(2), for "the entering of a nolle
prosequi" substitute "the discontinuance of a
prosecution".
23.11 Insert the following heading to section 10--
15 "Property in which the accused has an
interest".
23.12 In section 10, for "defendant" (wherever
occurring) substitute "accused".
23.13 In section 12(4), for "a defendant" substitute
20 "an accused".
23.14 In section 12(5)--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" (wherever occurring)
25 substitute "the accused".
23.15 In section 16(1), for "defendant" substitute
"accused".
23.16 In section 16(4), for "defendant" (wherever
occurring) substitute "accused".
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23.17 In section 18(1), for "defendant" substitute
"accused".
23.18 In section 20(1), for "defendant" substitute
"accused".
5 23.19 In section 21, for "defendant" (wherever
occurring) substitute "accused".
23.20 In section 22, for "defendant" (wherever
occurring) substitute "accused".
23.21 In section 26(2)(b), for "defendant" substitute
10 "accused".
23.22 In section 27--
(a) for "a defendant" (wherever occurring)
substitute "an accused"; and
(b) for "the defendant" (wherever occurring)
15 substitute "the accused"; and
(c) in subsection (3)(c)--
(i) for "quashed" substitute "set aside";
and
(ii) for "re-trial" substitute "new trial"; and
20 (iii) for "quashing" substitute "setting
aside".
23.23 In section 32--
(a) for "a defendant" substitute "an accused";
and
25 (b) for "the defendant" (wherever occurring)
substitute "the accused".
23.24 In section 34A(1), for "defendant" substitute
"accused".
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23.25 In section 34B--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" (wherever occurring)
5 substitute "the accused".
23.26 In the example at the foot of section 34B(2)(c)--
(a) for "A defendant" substitute "An accused";
and
(b) for "the defendant" (wherever occurring)
10 substitute "the accused"; and
(c) for "the defendant's flat" substitute "the flat
owned by the accused".
23.27 In section 34C, for "defendant" (wherever
occurring) substitute "accused".
15 23.28 In section 35--
(a) for "the defendant's conviction" (wherever
occurring) substitute "the conviction of the
accused"; and
(b) for "defendant" substitute "accused".
20 23.29 In section 35A(1), for "a defendant" substitute
"an accused".
23.30 In section 35A(2), for "defendant" substitute
"accused".
23.31 In the heading to section 35B, for "defendant"
25 substitute "accused".
23.32 In section 35B, for "defendant" (wherever
occurring) substitute "accused".
23.33 In section 36--
(a) for "a defendant's conviction" substitute
30 "the conviction of an accused"; and
(b) for "a defendant" substitute "an accused".
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23.34 In section 44(2), for "defendant" substitute
"accused".
23.35 In section 46(1)(a), for "quashed" substitute
"set aside".
5 23.36 In section 47(1)(a), for "quashed" substitute
"set aside".
23.37 In section 49(1), for "defendant" substitute
"accused".
23.38 In section 50, for "defendant" (wherever
10 occurring) substitute "accused".
23.39 In section 51(1), for "defendant" substitute
"accused".
23.40 In section 52, for "defendant" (wherever
occurring) substitute "accused".
15 23.41 In section 56(7) for "quashed" substitute
"set aside".
23.42 In section 58--
(a) for "a defendant" (wherever occurring)
substitute "an accused"; and
20 (b) for "the defendant" (wherever occurring)
substitute "the accused".
23.43 In section 59, for "defendant" (wherever
occurring) substitute "accused".
23.44 In section 60(2)(d), for "defendant" substitute
25 "accused".
23.45 In section 61--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused".
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23.46 In section 62(1)(a), for "quashed" substitute
"set aside".
23.47 In section 63(1), for "a defendant" substitute
"an accused".
5 23.48 In section 63(5), for "defendant" substitute
"accused".
23.49 In section 64(1) and (2), for "defendant"
(wherever occurring) substitute "accused".
23.50 In section 64(3), for "defendant" substitute
10 "accused".
23.51 In section 64(5)--
(a) for "quashing" substitute "setting aside";
and
(b) for "quashed" substitute "set aside".
15 23.52 In section 64(6), for "a defendant" substitute
"an accused".
23.53 In section 67--
(a) for "a defendant" substitute "an accused";
and
20 (b) for "the defendant" (wherever occurring)
substitute "the accused"; and
(c) for "on the defendant's behalf" substitute
"on behalf of the accused"; and
(d) for "the defendant's thoughts, opinions or
25 emotions" substitute "the thoughts, opinions
or emotions of the accused".
23.54 In section 68--
(a) for "a defendant" substitute "an accused";
and
30 (b) for "the defendant" (wherever occurring)
substitute "the accused".
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23.55 In section 69, for "defendant" (wherever
occurring) substitute "accused".
23.56 In section 70, for "defendant" (wherever
occurring) substitute "accused".
5 23.57 In section 74, for "defendant" (wherever
occurring) substitute "accused".
23.58 In section 78(3)(b), for "quashed" substitute
"set aside".
23.59 In section 93(4), for "defendant" substitute
10 "accused".
23.60 In section 95B(2)(f), for "defendant" substitute
"accused".
23.61 In section 97(1)(d)--
(a) for "quashed" substitute "set aside"; and
15 (b) for "retrial" substitute "new trial"; and
(c) for "quashing" (wherever occurring)
substitute "setting aside".
23.62 In section 98--
(a) for "a defendant" (wherever occurring)
20 substitute "an accused"; and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
23.63 In section 118E(2)(a), for "a defendant"
substitute "an accused".
25 23.64 In section 133A(3)(d), for "defendant" substitute
"accused".
24 Conservation, Forests and Lands Act 1987
24.1 In section 88A, for "defendant" (wherever
occurring) substitute "accused".
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25 Constitution Act 1975
25.1 In section 73(1), after "defendant" insert
", accused".
25.2 In section 74(1), after "defendant" insert
5 "or accused".
25.3 In section 74(3), after "defendant" insert
"or accused".
26 Construction Industry Long Service Leave Act 1997
26.1 In section 16, for "defendant" (wherever
10 occurring) substitute "accused".
27 Control of Weapons Act 1990
27.1 Insert the following heading to section 8--
"Claim of lawful excuse".
27.2 In section 8, for "Section 130 of the Magistrates'
15 Court Act 1989" substitute "Section 72 of the
Criminal Procedure Act 2009".
28 Conveyancers Act 2006
28.1 In section 9(3), for "defendant" substitute
"accused".
20 28.2 In section 168(3), for "defendant" substitute
"accused".
29 Co-operatives Act 1996
29.1 In section 351(2), for "defendant" substitute
"accused".
25 29.2 Section 453(4) is repealed.
30 Coroners Act 2008
30.1 In section 104(1)--
(a) for "Part VI of the Crimes Act 1958"
substitute "Part 6.3 of Chapter 6 of the
30 Criminal Procedure Act 2009"; and
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(b) in paragraph (b), for "passed" substitute
"imposed".
30.2 In section 104(2), for "section 579 of the Crimes
Act 1958" substitute "section 310 of the
5 Criminal Procedure Act 2009".
30.3 In section 104(3), for "in accordance with Part VI
of the Crimes Act 1958" substitute "under
section 313 of the Criminal Procedure Act
2009".
10 31 Corporations (Ancillary Provisions) Act 2001
31.1 In section 20(3)(b), after "trial" insert "or hearing
of a charge".
31.2 In section 20(3)(d), for "indictable triable
summarily" substitute "indictable that may be
15 heard and determined summarily".
32 Corporations (Victoria) Act 1990
32.1 In section 13(5) in the definition of instrument, in
paragraph (g), for "information laid" substitute
"charge-sheet filed".
20 32.2 In section 13(5) in the definition of instrument, in
paragraph (h) omit "presentment,".
32.3 In section 28(2)(b), after "trial" insert "or hearing
of a charge".
32.4 In section 42AA(2), for "defendant" substitute
25 "accused".
32.5 In section 42AA(4), in the definition of related
criminal justice process decision, in paragraph
(a), for "defendant" substitute "accused".
32.6 In section 55(1)(b), after "trial" insert ", hearing".
30 32.7 In section 55(4)(a), after "trial" insert ", hearing".
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32.8 In section 56(4), in the definition of criminal
procedure--
(a) in paragraph (b), for "trial and indictment"
substitute "trial on indictment"; and
5 (b) in paragraph (d), after "trial" insert
", hearing".
32.9 In section 65(5), in the definition of instrument--
(a) in paragraph (g), for "information laid"
substitute "charge-sheet filed"; and
10 (b) in paragraph (h) omit "presentment,".
33 Corrections Act 1986
33.1 In section 55B(2)(a), for "appearing" substitute
"attending".
33.2 In section 110(c), for "section 128A of the
15 Magistrates' Court Act 1989" substitute
"section 59 of the Criminal Procedure Act
2009".
34 Country Fire Authority Act 1958
34.1 In section 39B, for "defendant" substitute
20 "accused".
34.2 In section 40(14), for "defendant" substitute
"accused".
34.3 In section 48(3), for "defendant" substitute
"accused".
25 35 County Court Act 1958
35.1 In section 4A(6), for "defendant" (wherever
occurring) substitute "accused".
35.2 In section 4B(b)--
(a) for "sentencing order made" substitute
30 "sentence imposed"; and
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(b) for "sentencing order" (where secondly
occurring) substitute "sentence".
35.3 In section 4C, for "sentencing order made"
substitute "sentence imposed".
5 35.4 In section 4D(1)--
(a) for "section 83 or 84 of the Magistrates'
Court Act 1989" substitute "section 254
or 257 of the Criminal Procedure Act
2009"; and
10 (b) for "a sentencing order made" substitute
"the sentence imposed".
35.5 In section 4D(2)--
(a) for "section 83 or 84 of the Magistrates'
Court Act 1989" substitute "section 254
15 or 257 of the Criminal Procedure Act
2009"; and
(b) for "a sentencing order" substitute
"the sentence imposed".
35.6 In section 4D(3), for "Section 85 of the
20 Magistrates' Court Act 1989 does not apply"
substitute "Sections 256(1) and 259(1) of the
Criminal Procedure Act 2009 do not apply".
35.7 In section 4E, for "defendant" (wherever
occurring) substitute "accused".
25 35.8 In section 4G(1), for "which sentencing order to
make in respect of a defendant" substitute
"the sentence to impose on an offender".
35.9 In section 4G(3)(e), for "defendant" substitute
"offender".
30 35.10 In section 7(4), for "appearing" substitute
"attending".
35.11 In section 32(3), for "defendant" substitute
"offender".
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35.12 In section 36, after "defendant" (wherever
occurring) insert "or accused".
35.13 In section 53A, for "section 83 of the
Magistrates' Court Act 1989" substitute
5 "sections 254, 257 and 260 of the Criminal
Procedure Act 2009".
35.14 In section 78(1)(hec), for "section 83 or 84 of the
Magistrates' Court Act 1989" substitute
"section 254 or 257 of the Criminal Procedure
10 Act 2009".
35.15 In section 78(1)(hed), for "sentencing orders were
made" substitute "sentences were imposed".
35.16 For section 80AA(e) substitute--
"(e) cause undue distress or embarrassment to the
15 complainant in a proceeding that relates to a
charge for a sexual offence within the
meaning of the Criminal Procedure Act
2009; or".
36 Court Security Act 1980
20 36.1 After section 3 insert--
"3A Police to be present at courts
The Chief Commissioner of Police must--
(a) direct that a sufficient number of
members of the police force be present
25 to keep order on court premises at all
sittings of--
(i) the Supreme Court in its criminal
jurisdiction; and
(ii) the County Court in its criminal
30 jurisdiction; and
(b) at the request of the judge presiding at a
particular sitting of a court referred to
in paragraph (a), direct that an
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additional number of members of the
police force be present at that sitting.".
37 Credit (Administration) Act 1984
37.1 In section 32(3), for "defendant" substitute
5 "accused".
38 Credit Act 1984
38.1 In section 132(4), for "defendant" substitute
"accused".
39 Crimes (Mental Impairment and Unfitness to be
10 Tried) Act 1997
39.1 In section 5, for "tried" (wherever occurring)
substitute "heard and determined".
39.2 In section 8(1)--
(a) for "a defendant's fitness" substitute
15 "the fitness of an accused"; and
(b) for "at a committal hearing" substitute
"in a committal proceeding"; and
(c) for paragraph (a) substitute--
"(a) the committal proceeding must be
20 completed in accordance with
Chapter 4 of the Criminal Procedure
Act 2009; and"; and
(d) for "defendant" (wherever occurring)
substitute "accused".
25 39.3 In section 8(2)--
(a) for "a defendant" substitute "an accused";
and
(b) for "a presentment or indictment" substitute
"an indictment"; and
30 (c) for "the defendant's fitness" substitute
"the fitness of the accused".
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39.4 In section 8(3), for "defendant" substitute
"accused".
39.5 In section 9--
(a) for "a presentment or indictment" substitute
5 "an indictment"; and
(b) for "the defendant" substitute "the accused";
and
(c) for "the defendant's fitness" (wherever
occurring) substitute "the fitness of the
10 accused"; and
(d) in subsection (3)--
(i) for "a defendant's fitness" substitute
"the fitness of an accused"; and
(ii) for "proceedings" substitute
15 "proceeding"; and
(e) in subsection (4), for "a defendant's fitness to
be tried" substitute "the fitness of an
accused to stand trial".
39.6 In section 10--
20 (a) for "a defendant's fitness" substitute
"the fitness of an accused"; and
(b) for "the defendant" (wherever occurring)
substitute "the accused"; and
(c) for "a defendant" (wherever occurring)
25 substitute "an accused".
39.7 In section 11--
(a) for "a defendant's fitness" (wherever
occurring) substitute "the fitness of an
accused"; and
30 (b) for "the defendant" (wherever occurring)
substitute "the accused"; and
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(c) for "the defendant's fitness" substitute
"the fitness of the accused".
39.8 In section 12--
(a) for "the defendant" (wherever occurring)
5 substitute "the accused"; and
(b) for "a defendant" (wherever occurring)
substitute "an accused".
39.9 In section 13, for "defendant" (wherever
occurring) substitute "accused".
10 39.10 In section 14, for "defendant" (wherever
occurring) substitute "accused".
39.11 In section 15, for "defendant" substitute
"accused".
39.12 In section 16--
15 (a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's legal representative (if any)"
substitute "legal representative (if any) of
the accused"; and
20 (c) for "defendant's rights" substitute "rights of
the accused"; and
(d) for "section 360A of the Crimes Act 1958
(adjournment or stay of trial)" substitute
"section 197 of the Criminal Procedure Act
25 2009 (Order for legal representation for
accused)".
39.13 In section 17, for "defendant" (wherever
occurring) substitute "accused".
39.14 In section 18, for "defendant" (wherever
30 occurring) substitute "person".
39.15 In section 19, for "defendant" (wherever
occurring) substitute "person".
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39.16 In section 19A--
(a) for "quash" substitute "set aside"; and
(b) for "defendant" (wherever occurring)
substitute "person".
5 39.17 After section 19A(1) insert--
"(1A) An appeal under subsection (1) is
commenced by filing a notice of appeal in
accordance with the rules of court within
28 days after the day on which the order is
10 made or any extension of that period granted
under section 76C.
(1B) A notice of appeal under subsection (1A)
must be signed by the Director of Public
Prosecutions personally.
15 (1C) A copy of the notice of appeal must be
served personally on the respondent in
accordance with section 391 of the Criminal
Procedure Act 2009 within 7 days after the
day on which the notice of appeal is filed.
20 (1D) The Director of Public Prosecutions must
provide a copy of the notice of appeal to the
legal practitioner who last represented the
respondent in the special hearing, if that
legal practitioner can reasonably be
25 identified.".
39.18 In section 21(4)(b), for "the charge for the
offence" substitute "the person".
39.19 In section 22(2)(b), for "defendant" substitute
"accused".
30 39.20 In section 22(3)--
(a) for "A defendant" substitute "An accused";
and
(b) for "at a committal hearing" substitute
"in a committal proceeding".
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39.21 In section 23, for "defendant" (wherever
occurring) substitute "person".
39.22 In section 24, for "defendant" (wherever
occurring) substitute "person".
5 39.23 In section 24A--
(a) for "quash" substitute "set aside"; and
(b) for "defendant" (wherever occurring)
substitute "person".
39.24 After section 24A(1) insert--
10 "(1A) An appeal under subsection (1) is
commenced by filing a notice of appeal in
accordance with the rules of court within
28 days after the day on which the order is
made or any extension of that period granted
15 under section 76C.
(1B) A notice of appeal under subsection (1A)
must be signed by the Director of Public
Prosecutions personally.
(1C) A copy of the notice of appeal must be
20 served personally on the respondent in
accordance with section 391 of the Criminal
Procedure Act 2009 within 7 days after the
day on which the notice of appeal is filed.
(1D) The Director of Public Prosecutions must
25 provide a copy of the notice of appeal to the
legal practitioner who last represented the
respondent in the proceeding to which the
appeal relates, if that legal practitioner can
reasonably be identified.".
30 39.25 After section 28A(2) insert--
"(2A) An appeal under this section is commenced
by filing a notice of appeal in accordance
with the rules of court within 28 days after
the day on which the order is made or any
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extension of that period granted under
section 76C.
(2B) If the appeal is commenced by a person in
respect of whom a supervision order is made,
5 the Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of appeal
within 7 days after the day on which the
notice of appeal is filed.
10 (2C) If the appeal is commenced by the Secretary
to the Department of Human Services, the
Director of Public Prosecutions or the
Attorney-General--
(a) the notice of appeal must be signed by
15 that person personally; and
(b) a copy of the notice of appeal must be
served personally on the respondent in
accordance with section 391 of the
Criminal Procedure Act 2009 within
20 7 days after the day on which the notice
of appeal is filed; and
(c) that person must provide a copy of the
notice of appeal to the legal practitioner
who last represented the respondent in
25 the proceeding when the supervision
order was made, if that legal
practitioner can reasonably be
identified.".
39.26 In section 28A(3)--
30 (a) for "quash" (wherever occurring) substitute
"set aside"; and
(b) for "defendant" substitute "person who was
subject to the supervision order".
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39.27 In section 28A(5)--
(a) after "supervision order" (where first
occurring) insert "in respect of a person";
and
5 (b) for "defendant" (wherever occurring)
substitute "person".
39.28 After section 34(3) insert--
"(3A) An appeal under this section is commenced
by filing a notice of appeal in accordance
10 with the rules of court within 28 days after
the day on which the order confirming or
varying the supervision order is made or any
extension of that period granted under
section 76C.
15 (3B) If the appeal is commenced by a person who
is subject to a supervision order, the
Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of appeal
20 within 7 days after the day on which the
notice of appeal is filed.
(3C) If the appeal is commenced by the Secretary
to the Department of Human Services, the
Director of Public Prosecutions or the
25 Attorney-General--
(a) the notice of appeal must be signed by
that person personally; and
(b) a copy of the notice of appeal must be
served personally on the respondent in
30 accordance with section 391 of the
Criminal Procedure Act 2009 within
7 days after the day on which the notice
of appeal is filed; and
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(c) that person must provide a copy of the
notice of appeal to the legal practitioner
who last represented the respondent in
the proceeding when the supervision
5 order was made, if that legal
practitioner can reasonably be
identified.".
39.29 In section 34(4) and (5), for "quash" (wherever
occurring) substitute "set aside".
10 39.30 In section 34(7)--
(a) for "quashes a supervision order" substitute
"sets aside a supervision order in respect of a
person"; and
(b) for "defendant" substitute "person".
15 39.31 After section 34A(2) insert--
"(2A) An appeal under this section is commenced
by filing a notice of appeal in accordance
with the rules of court within 28 days after
the day on which the order is revoked or any
20 extension of that period granted under
section 76C.
(2B) A notice of appeal under subsection (2A)
must be signed personally by the Secretary to
the Department of Human Services, the
25 Director of Public Prosecutions or the
Attorney-General, as the case requires.
(2C) A copy of the notice of appeal must be
served personally on the respondent in
accordance with section 391 of the Criminal
30 Procedure Act 2009 within 7 days after the
day on which the notice of appeal is filed.
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(2D) The person commencing the appeal must
provide a copy of the notice of appeal to the
legal practitioner who last represented the
respondent in the proceeding when the
5 supervision order was revoked, if that legal
practitioner can reasonably be identified.".
39.32 In section 34A(3)(b), for "quash" substitute "set
aside".
39.33 In section 34A(3)(c), for "quash the order for"
10 substitute "set aside the order".
39.34 Insert the following heading to section 36--
"Person subject to supervision order has right
to appear".
39.35 In section 36(4)--
15 (a) for "appearance" substitute "attendance";
and
(b) for "appear at the hearing in person"
substitute "attend the hearing".
39.36 In section 36(6), for "Section 360A of the Crimes
20 Act 1958 (adjournment or stay of trial)"
substitute "Section 197 of the Criminal
Procedure Act 2009 (Order for legal
representation for accused)".
39.37 Insert the following heading to section 41--
25 "Reports on mental condition of persons
declared liable to supervision".
39.38 After section 57B(3) insert--
"(3A) An appeal under this section is commenced
by filing a notice of appeal in accordance
30 with the rules of court within 28 days after
the day on which extended leave is granted
or refused (as the case requires) or any
extension of that period granted under
section 76C.
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(3B) If the appeal is commenced under subsection
(1), the Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of appeal
5 within 7 days after the day on which the
notice of appeal is filed.
(3C) If the appeal is commenced by the Secretary
to the Department of Human Services, the
Director of Public Prosecutions or the
10 Attorney-General--
(a) the notice of appeal must be signed by
that person personally; and
(b) a copy of the notice of appeal must be
served personally on the respondent in
15 accordance with section 391 of the
Criminal Procedure Act 2009 within
7 days after the day on which the notice
of appeal is filed; and
(c) that person must provide a copy of the
20 notice of appeal to the legal practitioner
who last represented the respondent in
the application for extended leave, if
that legal practitioner can reasonably be
identified.".
25 39.39 In section 57B(5), for "quash" (wherever
occurring) substitute "set aside".
39.40 After section 58A(3) insert--
"(3A) An appeal under this section is commenced
by filing a notice of appeal in accordance
30 with the rules of court within 28 days after
the day on which extended leave is revoked
or revocation of the extended leave is refused
(as the case requires) or any extension of that
period granted under section 76C.
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(3B) If the appeal is commenced under subsection
(1), the Registrar of Criminal Appeals of the
Supreme Court must provide to the
respondent a copy of the notice of appeal
5 within 7 days after the day on which the
notice of appeal is filed.
(3C) If the appeal is commenced by the Secretary
to the Department of Human Services, the
Director of Public Prosecutions or the
10 Attorney-General--
(a) the notice of appeal must be signed by
that person personally; and
(b) a copy of the notice of appeal must be
served personally on the respondent in
15 accordance with section 391 of the
Criminal Procedure Act 2009 within
7 days after the day on which the notice
of appeal is filed; and
(c) that person must provide a copy of the
20 notice of appeal to the legal practitioner
who last represented the respondent in
the application for revocation of
extended leave, if that legal practitioner
can reasonably be identified.".
25 39.41 In section 58A(4)(b), for "quash" substitute
"set aside".
39.42 In section 65(4), for "appear" substitute "attend".
39.43 In section 72(3), for "appearing" substitute
"attending".
30 39.44 After section 73H(1) insert--
"(1A) An appeal under subsection (1) is
commenced by filing a notice of appeal in
accordance with the rules of court within
28 days after the day on which the order is
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made or any extension of that period granted
under section 76C.
(1B) A notice of appeal under subsection (1A)
must be signed by the Attorney-General
5 personally.
(1C) A copy of the notice of appeal must be
served personally on the respondent in
accordance with section 391 of the Criminal
Procedure Act 2009 within 7 days after the
10 day on which the notice of appeal is filed.
(1D) The Attorney-General must provide a copy
of the notice of appeal to the legal
practitioner who last represented the
respondent in the review under section 73F,
15 if that legal practitioner can reasonably be
identified.".
39.45 In section 73H(2), for "quash" (wherever
occurring) substitute "set aside".
39.46 After section 73N(1) insert--
20 "(1A) An appeal under subsection (1) is
commenced by filing a notice of appeal in
accordance with the rules of court within
28 days after the day on which the order is
made or any extension of that period granted
25 under section 76C.
(1B) A notice of appeal under subsection (1A)
must be signed by the Attorney-General
personally.
(1C) A copy of the notice of appeal must be
30 served personally on the respondent in
accordance with section 391 of the Criminal
Procedure Act 2009 within 7 days after the
day on which the notice of appeal is filed.
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(1D) The Attorney-General must provide a copy
of the notice of appeal to the legal
practitioner who last represented the
respondent in the review under section 73L,
5 if that legal practitioner can reasonably be
identified.".
39.47 In section 73N(2), for "quash" (wherever
occurring) substitute "set aside".
39.48 Section 73N(7) and (8) are repealed.
10 39.49 In section 75(1)(c), for "a defendant or another
person" substitute "an accused or any person".
39.50 For section 76B substitute--
"76B Rules of court
(1) Rules of court made by the authority having
15 for the time being power to make rules
regulating the practice and procedure of a
court may include rules for or with respect to
any matter for which provision is to be made
under this Act by rules of court.
20 (2) Rules of court made under this Act may
regulate generally the practice and procedure
under this Act.".
39.51 After section 76B insert--
"76C Extension of time for filing notice of
25 appeal
(1) The Court of Appeal or the Registrar of
Criminal Appeals of the Supreme Court at
any time may extend the time within which a
notice of appeal may be filed under this Act.
30 (2) If the Registrar of Criminal Appeals of the
Supreme Court refuses an application to
extend time under subsection (1), the
applicant is entitled to have the Court of
Appeal determine the application.
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76D Powers which may be exercised by a
single Judge of Appeal
(1) The power of the Court of Appeal under
section 76C to extend the time within which
5 notice of appeal may be given may be
exercised by a single Judge of Appeal in the
same manner as it may be exercised by the
Court of Appeal.
(2) If a Judge of Appeal refuses an application to
10 exercise a power referred to in subsection
(1), the applicant is entitled to have the
application determined by the Court of
Appeal.".
39.52 In Schedule 3, after clause 10 insert--
15 "11 Transitional provisions--Criminal
Procedure Act 2009
(1) Section 14A as inserted by section 423 of the
Criminal Procedure Act 2009 applies to a
finding on an investigation under Part 2 that
20 an accused is unfit to stand trial made on or
after the commencement of section 423 of
that Act.
(2) Section 24AA as inserted by section 424 of
the Criminal Procedure Act 2009 applies to
25 a verdict of not guilty because of mental
impairment recorded on or after the
commencement of section 424 of that Act.
12 Transitional provisions--Criminal
Procedure Amendment (Consequential
30 and Transitional Provisions) Act 2009
(1) Section 19A as amended by item 39.17 of
the Schedule to the Criminal Procedure
Amendment (Consequential and
Transitional Provisions) Act 2009 applies
35 to an appeal under that section where the
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order to which the appeal relates is made on
or after the commencement of that item.
(2) Section 24A as amended by item 39.24 of
the Schedule to the Criminal Procedure
5 Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to an appeal under that section where the
order to which the appeal relates is made on
or after the commencement of that item.
10 (3) Section 28A as amended by item 39.25 of
the Schedule to the Criminal Procedure
Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to an appeal under that section where the
15 order to which the appeal relates is made on
or after the commencement of that item.
(4) Section 34 as amended by item 39.28 of the
Schedule to the Criminal Procedure
Amendment (Consequential and
20 Transitional Provisions) Act 2009 applies
to an appeal under that section where the
order to which the appeal relates is made on
or after the commencement of that item.
(5) Section 34A as amended by item 39.31 of
25 the Schedule to the Criminal Procedure
Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to an appeal against the revocation of a non-
custodial supervision order where the order
30 revoking the supervision order is made on or
after the commencement of that item.
(6) Section 57B as amended by item 39.38 of the
Schedule to the Criminal Procedure
Amendment (Consequential and
35 Transitional Provisions) Act 2009 applies
to an appeal under that section where the
application for extended leave is refused or
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granted, as the case may be, on or after the
commencement of that item.
(7) Section 58A as amended by item 39.40 of
the Schedule to the Criminal Procedure
5 Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to an appeal under that section where the
extended leave is revoked or the application
for revocation of extended leave is refused,
10 as the case may be, on or after the
commencement of that item.
(8) Section 73H as amended by item 39.44 of
the Schedule to the Criminal Procedure
Amendment (Consequential and
15 Transitional Provisions) Act 2009 applies
to an appeal under that section where the
order to which the appeal relates is made on
or after the commencement of that item.
(9) Section 73N as amended by item 39.46 of
20 the Schedule to the Criminal Procedure
Amendment (Consequential and
Transitional Provisions) Act 2009 applies
to an appeal under that section where the
order to which the appeal relates is made on
25 or after the commencement of that item.".
40 Crimes Act 1958
40.1 In section 6(2) omit "or presentment".
40.2 In section 33(2), for "defendant" (wherever
occurring) substitute "accused".
30 40.3 In section 45(5), for "presentment" substitute
"indictment".
40.4 In section 45(9), for "section 53(1) of the
Magistrates' Court Act 1989 applies (indictable
offences triable summarily)" substitute
35 "section 28 of the Criminal Procedure Act 2009
applies".
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40.5 In section 70(2), for "defendant" (wherever
occurring) substitute "accused".
40.6 In the heading to section 88A, for "counts"
substitute "charges".
5 40.7 In section 88A(a)--
(a) for "presentment" substitute "indictment";
and
(b) for "counts" substitute "charges".
40.8 In section 93(1) omit "or presentment".
10 40.9 In section 95(2), for "an information laid"
substitute "the filing of a charge-sheet".
40.10 In section 316(3)--
(a) for "by information" (where first occurring)
substitute "by evidence"; and
15 (b) for "either by such information or by
information to" substitute "either by such
evidence or by evidence on oath before".
40.11 In section 317(7)--
(a) for "presentment" (wherever occurring)
20 substitute "indictment"; and
(b) for "counts" substitute "charges"; and
(c) for "count" substitute "charge".
40.12 In section 317(8) omit "presentment".
40.13 In section 318(3)--
25 (a) for "A presentment" substitute
"An indictment"; and
(b) for "hearing of the presentment" substitute
"trial on the indictment".
40.14 In section 318(5) and (6), for "presentment"
30 substitute "indictment".
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40.15 In section 321(4), for "A presentment at the
Supreme Court or the County Court of a person
for an offence against this section shall not be
made" substitute "An indictment charging an
5 offence against this section must not be filed".
40.16 In section 321C(1)(d), for "is triable" substitute
"may be heard and determined".
40.17 In section 321F(4), for "A presentment at the
Supreme Court or the County Court of a person
10 for an offence of conspiracy to cheat and defraud
or conspiracy to defraud shall not be made"
substitute "An indictment charging an offence of
conspiracy to cheat and defraud or conspiracy to
defraud must not be filed".
15 40.18 In section 321I(1)(d), for "is triable" substitute
"may be heard and determined".
40.19 In section 322C(5)--
(a) omit "or presentment"; and
(b) for "tried summarily" substitute "heard and
20 determined summarily".
40.20 In section 323, for "tried, indicted or presented"
substitute "tried or indicted".
40.21 In section 325(3) omit "or presented".
40.22 In section 399(8), for "the provisions of
25 Schedule 5 to the Magistrates' Court Act 1989"
substitute "Chapter 4 of the Criminal Procedure
Act 2009".
40.23 In section 413--
(a) for "clause 6(1) of Schedule 5 to the
30 Magistrates' Court Act 1989" substitute
"section 110 of the Criminal Procedure Act
2009"; and
(b) for "preliminary or other investigation"
substitute "committal proceeding".
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40.24 In section 421(1) omit "or presentment".
40.25 Section 422 is repealed.
40.26 Section 422A(2) is repealed.
40.27 Section 423 is repealed.
5 40.28 Section 424 is repealed.
40.29 Section 425(4) is repealed.
40.30 In section 458(1)(a)(i), for "appearance"
substitute "attendance".
40.31 In section 458(3)--
10 (a) for "indictable offence punishable
summarily" substitute "indictable offence
that may be heard and determined
summarily"; and
(b) after "summons has been issued against him"
15 insert "or a notice to appear has been served
on him".
40.32 After section 458(3) insert--
"(4) In subsection (3), notice to appear has the
same meaning as in the Criminal Procedure
20 Act 2009.".
40.33 In section 459, for "heard or determined"
(wherever occurring) substitute "heard and
determined".
40.34 In section 461(2), after "summons" insert
25 "or notice to appear".
40.35 After section 461(2) insert--
"(3) In subsection (2) notice to appear has the
same meaning as in the Criminal Procedure
Act 2009.".
30 40.36 In section 464ZF(6B) and (7), for "quashed"
substitute "set aside".
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40.37 In section 464ZFAAA(1), in the definition of
forensic sample offence, for "tried summarily"
substitute "heard and determined summarily".
40.38 In section 464ZFB(1B), for "tried summarily"
5 substitute "heard and determined summarily".
40.39 In section 46ZFB(2A), for "quashed" substitute
"set aside".
40.40 In section 464ZGJ(4), for "quashed" substitute
"set aside".
10 40.41 In section 469AA(3), for "quashed" substitute
"set aside".
40.42 Schedule 5 is repealed.
41 Crown Land (Reserves) Act 1978
41.1 In section 13(8), for "charge" substitute "charge-
15 sheet containing a charge".
41.2 In section 13(9), for "charge" (wherever
occurring) substitute "charge-sheet".
42 Crown Proceedings Act 1958
42.1 In section 5(3)(c), for "a presentment" substitute
20 "an indictment".
42.2 In section 6(6)(c), for "a presentment" substitute
"an indictment".
43 Dairy Act 2000
43.1 In section 59(1)(e)(ii), for "defendant" substitute
25 "accused".
44 Dangerous Goods Act 1985
44.1 In the note at the foot of section 17B(4), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
30 "section 28 of the Criminal Procedure Act
2009".
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44.2 In the note at the foot of section 17C(5), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
5 2009".
44.3 In the note at the foot of section 17D(6), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
10 2009".
44.4 In the note at the foot of section 18A(3), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
15 2009".
44.5 In the note at the foot of section 21AA(4), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
20 2009".
44.6 In the note at the foot of section 21AA(7), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
25 2009".
44.7 In the note at the foot of section 31(5), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
30 2009".
44.8 In the note at the foot of section 31A(3), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
35 2009".
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44.9 In the note at the foot of section 31B(2), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
5 2009".
44.10 In the note at the foot of section 31C(3), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
10 2009".
44.11 In section 37(5), for "defendant" substitute
"accused".
44.12 In section 42A(2) and (3), for "defendant"
(wherever occurring) substitute "accused".
15 44.13 In section 42A(5)(b), for "defendant" substitute
"accused".
44.14 Insert the following heading to section 43--
"Right of accused to have third person before
court".
20 44.15 In section 43(1), for "A defendant" substitute
"An accused".
44.16 In section 43(2)--
(a) for "A defendant" substitute "An accused";
and
25 (b) for "defendant's intention" substitute
"intention of the accused"; and
(c) for "defendant's claim" substitute "claim of
the accused"; and
(d) for "the defendant" substitute "the accused";
30 and
(e) for "charge" substitute "charge-sheet".
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44.17 In section 43(3)--
(a) for "laid" substitute "contained on a charge-
sheet filed"; and
(b) for "charge is filed" substitute "charge-sheet
5 is filed".
44.18 In section 43(4), for "defendant" (wherever
occurring) substitute "accused".
44.19 In section 47D(1)(b), for "defendant" substitute
"accused".
10 45 Domestic Animals Act 1994
45.1 Insert the following heading to section 92--
"Power to file charge-sheets under this Act".
45.2 In section 92, for "charge for" substitute "charge-
sheet charging".
15 45.3 In section 95, after "charge" (wherever occurring)
insert "contained on a charge-sheet".
46 Domestic Building Contracts Act 1995
46.1 In section 128(4)(b)(ii), after "tried" insert "or
heard".
20 47 Drugs, Poisons and Controlled Substances Act 1981
47.1 Insert the following heading to section 45--
"Time within which charge-sheet to be filed".
47.2 In section 45, for "charge for" substitute "charge-
sheet charging".
25 47.3 In section 119(a), for "defendant" substitute
"accused".
47.4 In section 120(2) and (3), for "defendant"
(wherever occurring) substitute "accused".
47.5 In section 120(5)(b), for "defendant" substitute
30 "accused".
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48 Education and Training Reform Act 2006
48.1 In section 2.1.14, for "defendant" substitute
"accused".
48.2 In the heading to section 2.4.63, for "Quashing"
5 substitute "Setting aside".
48.3 In section 2.4.63, after "quashed" insert "or set
aside".
48.4 In section 2.6.27(10)(b)(i), for "a nolle prosequi is
entered in relation to the charge" substitute "the
10 prosecution for the offence charged is
discontinued".
48.5 In section 2.6.27(10)(b)(iv), for "committal
hearing" substitute "committal proceeding".
48.6 In section 2.6.29(5), after "quashed" (wherever
15 occurring) insert "or set aside".
49 Electricity Industry Act 2000
49.1 In the note at the foot of section 93A(3), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
20 "section 28 of the Criminal Procedure Act
2009".
49.2 In section 97(6), for "defendant" (wherever
occurring) substitute "accused".
50 Environment Protection Act 1970
25 50.1 In section 19G(1), for "defendant" substitute
"accused".
50.2 In section 19G(4), for "charge" substitute
"charge-sheet".
50.3 In section 27(1), (1A), (1B) and (2), for
30 "defendant" substitute "accused".
50.4 In the penalty at the foot of section 27A(1), for
"defendant" substitute "accused".
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50.5 In the penalty at the foot of section 27A(2), for
"defendant" substitute "accused".
50.6 In section 42A(7), for "defendant" substitute
"accused".
5 50.7 In section 42A(8)--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
10 50.8 In section 42A(9) and (11), for "defendant"
substitute "accused".
50.9 In section 42B(7), (10) and (14), for "defendant"
(wherever occurring) substitute "accused".
50.10 In section 43, for "defendant" substitute
15 "accused".
50.11 In section 45D(2), for "filing the charge"
substitute "filing the charge-sheet containing the
charge".
50.12 In section 45G(3), for "charge" (wherever
20 occurring) substitute "charge-sheet".
50.13 In section 45G(4), for "charge" substitute
"charge-sheet".
50.14 In the heading to section 45J, for "charges"
substitute "infringement notice or charge-
25 sheet".
50.15 In section 45J(1), for "charge" (wherever
occurring) substitute "charge-sheet".
50.16 In section 48(3), for "defendant" substitute
"accused".
30 50.17 In section 48D(4), for "defendant" substitute
"accused".
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50.18 In section 53A(3), for "defendant" substitute
"accused".
50.19 In the penalty at the foot of section 53Q, for
"defendant" substitute "accused".
5 50.20 In section 55A(4), for "defendant" substitute
"accused".
50.21 In section 55AC(3), for "defendant" substitute
"accused".
50.22 In section 55B(4), for "defendant" substitute
10 "accused".
50.23 In section 57D(3), for "defendant" (wherever
occurring) substitute "accused".
50.24 In section 58(3), for "defendant" (wherever
occurring) substitute "accused".
15 50.25 In section 59AD(1), for "Subdivision 3 of
Division 2 of Part 4 of the Magistrates' Court
Act 1989" substitute "Part 3.1 of Chapter 3 of the
Criminal Procedure Act 2009".
50.26 In section 59AD(2)--
20 (a) for "Subdivision 3 of Division 2 of Part 4 of
the Magistrates' Court Act 1989"
substitute "Part 3.1 of Chapter 3 of the
Criminal Procedure Act 2009"; and
(b) paragraph (a) is repealed.
25 51 Equal Opportunity Act 1995
51.1 In section 196, for "defendant" (wherever
occurring) substitute "accused".
52 Equipment (Public Safety) Act 1994
52.1 In the note at the foot of section 19(4), for
30 "section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
2009".
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52.2 In the note at the foot of section 19A(5), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
5 2009".
52.3 In the note at the foot of section 19B(6), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
10 2009".
52.4 In the note at the foot of section 20A(3), for
"section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989" substitute
"section 28 of the Criminal Procedure Act
15 2009".
52.5 In section 28(2), for "charge" substitute "charge-
sheet".
53 Estate Agents Act 1980
53.1 In section 70O(3), for "defendant" substitute
20 "accused".
54 Evidence Act 1958
54.1 In section 5, for "defendant" substitute "accused".
54.2 In section 9D, for "defendant" substitute
"accused".
25 54.3 In section 9J, for "defendant" substitute
"accused".
54.4 In section 32AB, for "Divisions 3 and 3AA"
substitute "Division 3".
54.5 In section 32G(1)(a) omit "37A,".
30 54.6 In section 32G(1)(b), for "1991." substitute
"1991; or".
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54.7 After section 32G(1)(b) insert--
"(c) Part 8.2 of the Criminal Procedure Act
2009.".
54.8 Section 37A is repealed.
5 54.9 Section 37B is repealed.
54.10 Section 37C is repealed.
54.11 Section 37CAA is repealed.
54.12 Section 37CA is repealed.
54.13 Section 37D is repealed.
10 54.14 Section 37E is repealed.
54.15 Division 3AA of Part II is repealed.
54.16 Division 3A of Part II is repealed.
54.17 For section 42BA(2)(a)(v) substitute--
"(v) the prosecution of the offence is
15 discontinued;".
54.18 In section 42BR(2), for "defendant" substitute
"accused".
54.19 In section 42C--
(a) for the definition of accused person
20 substitute--
"accused has the same meaning as in the
Criminal Procedure Act 2009;";
(b) in the definition of child, in paragraph (b),
for "sentencing order" substitute "sentence";
25 (c) in the definition of remote point, in
paragraph (b), for "accused person"
substitute "accused";
(d) insert the following definition--
"appear includes attend;".
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54.20 In section 42D, for "accused person" substitute
"accused".
54.21 In section 42F(6), for "accused person" substitute
"accused".
5 54.22 In section 42I, for "section 37B, 37C or 37D"
(wherever occurring) substitute "Part 8.2 of
Chapter 8 of the Criminal Procedure Act 2009".
54.23 In the heading to Division 3 of Part IIA, for
"accused persons" substitute "the accused".
10 54.24 In section 42J, for "accused person" substitute
"accused".
54.25 Insert the following heading to section 42K--
"Appearance of adult accused before court".
54.26 In section 42K(1), for "accused person" substitute
15 "accused".
54.27 In section 42K(2), for "accused person" (wherever
occurring) substitute "accused".
54.28 In section 42K(3), for "accused person" substitute
"accused".
20 54.29 In section 42K(4), for "accused person" substitute
"accused".
54.30 In section 42L(1), for "accused person" (wherever
occurring) substitute "accused".
54.31 In section 42L(2), for "accused person" (wherever
25 occurring) substitute "accused".
54.32 In section 42L(5), for "accused person" substitute
"accused".
54.33 In section 42M(1), for "accused person"
substitute "accused".
30 54.34 In section 42M(3), for "accused person"
(wherever occurring) substitute "accused".
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54.35 In section 42M(5) and (8), for "accused person"
substitute "accused".
54.36 In section 42N(1), for "accused person" (wherever
occurring) substitute "accused";
5 54.37 In section 42N(3), for "accused person" substitute
"accused".
54.38 Insert the following heading to section 42O--
"Appearance before court of accused who is a
child".
10 54.39 In section 42O, for "accused person" substitute
"accused".
54.40 For section 42Q(2)(c) substitute--
"(c) in relation to the Magistrates' Court, means
the Chief Magistrate;
15 (d) in relation to the Children's Court, means the
President.".
54.41 In section 42R(1), for "accused person" substitute
"accused".
54.42 In section 42R(2)--
20 (a) for "accused person" substitute "accused";
and
(b) omit "or stating an intention to reserve their
plea".
54.43 In section 42R(3), for "accused person" substitute
25 "accused".
54.44 In section 42S, for "accused person" substitute
"accused".
54.45 In section 42T, for "accused person" (wherever
occurring) substitute "accused".
30 54.46 In section 42V, for "accused person" (wherever
occurring) substitute "accused".
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54.47 In section 42X, for "accused person" substitute
"accused".
54.48 In section 151, after "trial" insert "hearing".
54.49 Section 152(1)(a) and (b) are repealed.
5 54.50 Section 152(2)(aa) is repealed.
54.51 At the end of Part VIII insert--
"163 Transitional provision--Criminal
Procedure Act 2009
(1) Sections 55B(5) and 144 as amended by
10 section 435(7) of the Criminal Procedure
Act 2009 applies to an offence alleged to
have been committed on or after the
commencement of section 435(7) of that Act.
(2) For the purposes of subsection (1), if an
15 offence is alleged to have been committed
between two dates, one before and one on or
after the commencement of section 435(7) of
the Criminal Procedure Act 2009, the
offence is alleged to have been committed
20 before that commencement.".
55 Evidence Act 2008
55.1 In the heading to section 17, for "defendants"
substitute "accused".
55.2 In section 17(2), for "A defendant" substitute
25 "An accused".
55.3 In section 17(3)--
(a) for "associated defendant" (wherever
occurring) substitute "associated accused";
and
30 (b) for "a defendant" substitute "an accused";
and
(c) for "the defendant" substitute "the accused".
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55.4 In section 17(4), for "defendant" (wherever
occurring) substitute "accused".
55.5 In section 18(2)--
(a) for "a defendant" substitute "an accused";
5 and
(b) for "the defendant" substitute "the accused".
55.6 In section 18(6), for "defendant" substitute
"accused".
55.7 In section 18(7), for "defendant" (wherever
10 occurring) substitute "accused".
55.8 In section 20(2) and (4), for "defendant"
(wherever occurring) substitute "accused".
55.9 In section 20(3)--
(a) for "defendant's spouse or de facto partner"
15 substitute "spouse or de facto partner of the
accused"; and
(b) for "defendant" substitute "accused".
55.10 In example 1 at the foot of section 59, for
"defendant" substitute "accused".
20 55.11 In section 65(3), for "defendant" substitute
"accused".
55.12 In section 65(4)--
(a) for "one defendant" substitute "one
accused"; and
25 (b) for "a defendant" substitute "an accused".
55.13 In section 65(5)--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused".
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55.14 In section 65(8), for "a defendant" (wherever
occurring) substitute "an accused".
55.15 In section 65(9), for "a defendant" substitute
"an accused".
5 55.16 In section 73(2)--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused";
and
10 (c) for "the defendant's intention" substitute
"the intention of the accused".
55.17 In the heading to section 85, for "defendants"
substitute "accused".
55.18 In section 85(1)--
15 (a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
55.19 In section 86--
20 (a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused".
55.20 In section 90, for "a defendant" substitute
"an accused".
25 55.21 In section 101--
(a) for "a defendant" (wherever occurring)
substitute "an accused"; and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
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55.22 In section 104(2)--
(a) for "A defendant" substitute "An accused";
and
(b) for "the defendant's credibility" substitute
5 "the credibility of the accused".
55.23 In section 104(3) and (4), for "the defendant"
substitute "the accused".
55.24 In section 104(5), for "the defendant" (wherever
occurring) substitute "the accused".
10 55.25 In section 104(6), for "defendant" (wherever
occurring) substitute "accused".
55.26 In the heading to section 105, for "defendants"
substitute "accused".
55.27 In section 108B--
15 (a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" (wherever occurring)
substitute "the accused"; and
(c) for "Another defendant" substitute "Another
20 accused".
55.28 In the heading to section 110, for "accused
persons" substitute "an accused".
55.29 In section 110--
(a) for "a defendant" (wherever occurring)
25 substitute "an accused"; and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
55.30 In section 111--
(a) for "a defendant's character" substitute
30 "the character of an accused"; and
(b) for "defendant" (wherever occurring)
substitute "accused".
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55.31 In section 112, for "A defendant" substitute
"An accused".
55.32 In section 114, for "defendant" (wherever
occurring) substitute "accused".
5 55.33 In section 115--
(a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's appearance" (wherever
occurring) substitute "appearance of the
10 accused".
55.34 In the heading to section 123, for "defendants"
substitute "accused".
55.35 In section 123--
(a) for "a defendant" substitute "an accused";
15 and
(b) for "associated defendant" (wherever
occurring) substitute "associated accused".
55.36 In section 128(9)--
(a) for "a defendant" substitute "an accused";
20 and
(b) for "the defendant" (wherever occurring)
substitute "the accused".
55.37 In section 128(10)--
(a) for "a defendant" substitute "an accused";
25 and
(b) for "the defendant" substitute "the accused".
55.38 In section 130(5), for "a defendant" (wherever
occurring) substitute "an accused".
55.39 In section 137, for "defendant" substitute
30 "accused".
55.40 In section 141(2), for "a defendant" substitute
"an accused".
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55.41 In section 165(1)(f)--
(a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused".
5 55.42 In section 165B, for "defendant" (wherever
occurring) substitute "accused".
55.43 In section 184--
(a) for "a defendant" substitute "an accused";
and
10 (b) for "A defendant's admission or consent"
substitute "An admission made by or a
consent given by an accused"; and
(c) for "the defendant" (wherever occurring)
substitute "the accused"; and
15 (d) for "the defendant's Australian legal
practitioner or legal counsel" substitute
"the Australian legal practitioner or legal
counsel of the accused".
55.44 In section 189(3)--
20 (a) for "a defendant's admission" substitute
"an admission made by an accused"; and
(b) for "the defendant" substitute "the accused".
55.45 In section 189(5)(a), for "defendant" substitute
"accused".
25 55.46 In section 190(2)--
(a) for "a defendant's consent" substitute
"a consent given by an accused"; and
(b) for "the defendant" (wherever occurring)
substitute "the accused"; and
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(c) for "the defendant's Australian legal
practitioner or legal counsel" substitute
"the Australian legal practitioner or legal
counsel of the accused".
5 55.47 In Part 1 of the Dictionary, in the definition of
associated defendant--
(a) for "associated defendant" substitute
"associated accused"; and
(b) for "a defendant" substitute "an accused";
10 and
(c) for "the defendant" (wherever occurring)
substitute "the accused".
55.48 In Part 1 of the Dictionary, in the definition of
identification evidence--
15 (a) for "a defendant" substitute "an accused";
and
(b) for "the defendant" substitute "the accused".
55.49 In Part 2 of the Dictionary, in clause 7(3), for
"a defendant" substitute "an accused".
20 56 Fair Trading Act 1999
56.1 In section 14(2) and (3), for "defendant"
(wherever occurring) substitute "accused".
56.2 In the note at the foot of section 22(2A)--
(a) for "Section 130 of the Magistrates' Court
25 Act 1989" substitute "Section 72 of the
Criminal Procedure Act 2009"; and
(b) for "defendant" (wherever occurring)
substitute "accused".
56.3 In section 24(2), for "defendant" (wherever
30 occurring) substitute "accused".
56.4 In section 126(3), for "defendant" substitute
"accused".
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56.5 In section 142, for "section 26 of the Magistrates'
Court Act 1989" substitute "section 7 of the
Criminal Procedure Act 2009".
56.6 In section 155(1)--
5 (a) for "defendant" (wherever occurring)
substitute "accused"; and
(b) for "defendant's control" substitute "control
of the accused".
56.7 In section 155(2)--
10 (a) for "the defendant" (wherever occurring)
substitute "the accused"; and
(b) for "a defendant" substitute "an accused".
56.8 In section 155(3)--
(a) for "defendant" (wherever occurring)
15 substitute "accused"; and
(b) for "defendant's possession" substitute
"possession of the accused".
56.9 In section 155(4), for "defendant" (wherever
occurring) substitute "accused".
20 56.10 In section 158(1)(a), for "defendant" substitute
"accused".
56.11 In section 158(2), for "defendant" (wherever
occurring) substitute "accused".
56.12 In section 158(3), for "a defendant" substitute "an
25 accused".
57 Family Violence Protection Act 2008
57.1 In section 31(1)(b), for "appear" substitute
"attend".
57.2 In section 32(d), for "appear" substitute "attend".
30 57.3 In section 122(4), for "appear" substitute
"attend".
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57.4 In section 150(2)(a), for "defendant" substitute
"accused".
57.5 In section 222(1)(a), for "defendant" substitute
"accused".
5 58 Fisheries Act 1995
58.1 In section 56(8)(a), for "charge for an offence"
substitute "charge-sheet charging an offence".
58.2 In section 106(5), for "defendant or its owner"
substitute "person found guilty of the offence or
10 the owner of the thing".
58.3 Section 122(4) and the note at the foot of that
subsection are repealed.
58.4 In section 123(11), for "defendant" substitute
"accused".
15 58.5 In section 123A(2), for "defendant" substitute
"accused".
58.6 In section 123A(3), for "defendant" (wherever
occurring) substitute "accused".
59 Food Act 1984
20 59.1 In section 17E(3)--
(a) for "the defendant" (wherever occurring)
substitute "the accused"; and
(b) for "a defendant" substitute "an accused".
59.2 In section 17F, for "defendant" substitute
25 "accused".
59.3 Insert the following heading to section 46--
"Right of accused to have third person before
court".
59.4 In section 46(1), for "A defendant" substitute
30 "An accused".
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59.5 In section 46(2)--
(a) for "A defendant" substitute "An accused";
and
(b) for "charge against the other person for"
5 substitute "charge-sheet charging the other
person with".
59.6 In section 46(3)--
(a) for "any charge filed" substitute "a charge
issued in relation to a charge-sheet filed";
10 and
(b) for "the charge is filed to appear" substitute
"the charge-sheet is filed to attend".
59.7 In section 46(4), for "defendant" (wherever
occurring) substitute "accused".
15 59.8 In section 48(1)(b), for "defendant" substitute
"accused".
59.9 Insert the following heading to section 49--
"Liability of accused for certain costs and
expenses".
20 59.10 In section 50(1)(i), for "a defendant" substitute
"an accused".
59.11 In section 50(2)(b), for "defendant" substitute
"accused".
59.12 In section 52B, for "defendant" (wherever
25 occurring) substitute "accused".
59.13 In section 53B--
(a) for "referred to as the defendant" substitute
"referred to as the offender"; and
(b) for "defendant" (wherever occurring)
30 substitute "offender".
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60 Forests Act 1958
60.1 In section 79(5), for "defendant" substitute
"accused".
60.2 In section 95H(b), for "defendant" substitute
5 "accused".
61 Fuel Prices Regulation Act 1981
61.1 In section 22(2), for "defendant" substitute
"accused".
61.2 In section 26, for "defendant" substitute
10 "accused".
61.3 In section 27(3), for "defendant" (wherever
occurring) substitute "accused".
61.4 In section 27(4), for "defendant" substitute
"accused".
15 62 Gambling Regulation Act 2003
62.1 In section 2.2.2(2), for "defendant" substitute
"accused".
62.2 In section 2.2.3(6), for "defendant" substitute
"accused".
20 62.3 In the penalty at the foot of section 2.5.2(1), for
"defendant's" substitute "offender's".
62.4 In the penalty at the foot of section 2.5.8(4), for
"defendant's" substitute "offender's".
62.5 In section 2.5.17(2), for "defendant" substitute
25 "accused".
62.6 In section 2.5.32(2), for "defendant" substitute
"accused".
62.7 In section 2.5.