CRIMINAL PROCEDURE BILL 2008

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CRIMINAL PROCEDURE BILL 2008

PARLIAMENT OF VICTORIA Criminal Procedure Bill 2008 TABLE OF PROVISIONS Clause Page CHAPTER 1--PRELIMINARY 1 1 Purposes 1 2 Commencement 3 3 Definitions 3 4 References to Parts 11 CHAPTER 2--COMMENCING A CRIMINAL PROCEEDING 12 PART 2.1--WAYS IN WHICH A CRIMINAL PROCEEDING IS COMMENCED 12 5 How a criminal proceeding is commenced 12 PART 2.2--CHARGE-SHEET AND LISTING OF MATTER 13 6 Commencement of a criminal proceeding in the Magistrates' Court 13 7 Time limits for filing a charge-sheet 14 8 Order for amendment of charge-sheet 14 9 Errors etc. in charge-sheet 15 10 Listing of matter for mention hearing or filing hearing in the Magistrates' Court 16 11 Place of hearing 16 PART 2.3--NOTIFYING ACCUSED OF COURT APPEARANCE 18 Division 1--Summons or warrant to arrest 18 12 Court may issue summons or warrant to arrest 18 13 Summons or warrant to be accompanied by charge-sheet and notice when served 19 14 Police or public official may issue summons 20 15 Contents of summons 20 16 Personal service of summons 21 17 Summons for summary offence may be served by ordinary service 22 18 Informant must nominate address etc. for service of documents 23 561013B.I-3/12/2008 i BILL LA INTRODUCTION 3/12/2008

Clause Page 19 Extension of return date if summons not served 23 20 Adjournment of proceeding on application of accused 24 Division 2--Notice to appear 24 21 Police or public official may serve notice to appear 24 22 Notice to appear lapses unless charge-sheet filed within 14 days 25 23 Notice to be given on lapsing 26 24 Preliminary brief to be served if charge-sheet filed 26 25 Non-appearance of accused served with notice to appear 27 26 Notice to appear does not commence proceeding 28 CHAPTER 3--SUMMARY PROCEDURE 29 PART 3.1--WHEN A SUMMARY HEARING MAY BE HELD 29 27 Summary offences 29 28 Indictable offences that may be heard and determined summarily 29 29 When an indictable offence may be heard and determined summarily 30 30 Procedure for indictable offences that may be heard and determined summarily 32 PART 3.2--PROCEDURE BEFORE SUMMARY HEARING 35 Division 1--General 35 31 Court may change place of hearing 35 32 Accused entitled to copy of charge-sheet and particulars 35 33 Unrepresented accused who requires legal advice 35 34 Return of property 36 Division 2--Pre-hearing disclosure of prosecution case 36 35 When preliminary brief is to be served 36 36 How preliminary brief must be served 37 37 Contents of preliminary brief 38 38 Requirements for informant's statement in preliminary brief 40 39 When full brief must be served 41 40 How full brief must be served 42 41 Contents of full brief 42 42 Continuing obligation of disclosure 46 43 Accused may make request for material etc. not provided 47 44 Informant must comply with request or state grounds of refusal 48 45 Grounds on which informant may refuse disclosure 48 46 Accused may apply for order requiring disclosure 50 47 Rules with respect to statements 50 48 Disclosure of address or telephone number of witness 52 49 Informant may place material on database 53 561013B.I-3/12/2008 ii BILL LA INTRODUCTION 3/12/2008

Clause Page Division 3--Preliminary disclosure of case of accused 55 50 Expert evidence 55 51 Alibi evidence 55 52 Offence to communicate with alibi witness 57 Division 4--Mention hearing and contest mention hearing 58 53 Mention hearing 58 54 Summary case conference 58 55 Contest mention hearing 60 PART 3.3--SUMMARY HEARING 62 Division 1--Joint or separate hearing of charges 62 56 Multiple charges on single charge-sheet or multiple accused named on single charge-sheet 62 57 Joint hearing of charges on separate charge-sheets 62 58 Order for separate hearing 62 Division 2--Diversion program 63 59 Adjournment to undertake diversion program 63 Division 3--Sentence indication 65 60 Court may give sentence indication 65 61 Effect of sentence indication 66 Division 4--Entering a plea 67 62 Charge to be read or explained to accused before plea 67 63 Legal practitioner may enter plea on behalf of accused 67 64 Refusal to plead 67 Division 5--Opening addresses 68 65 Parties may give opening addresses 68 Division 6--Case for the accused 68 66 Accused entitled to respond after close of prosecution case 68 67 Election when accused is legally represented 68 68 Election when accused is not legally represented 69 69 Procedure for joint hearings if no case submission made 69 70 Questioning to determine proper course of proceeding 70 71 Opening address of accused at beginning of case for the accused 70 72 Evidential burden on accused for exceptions etc. 71 561013B.I-3/12/2008 iii BILL LA INTRODUCTION 3/12/2008

Clause Page Division 7--Closing addresses 71 73 Prosecutor's closing address 71 74 Closing address of the accused 72 75 Supplementary address by prosecutor 72 Division 8--Determination of charge 73 76 Option of finding of attempt 73 Division 9--Criminal record 73 77 Criminal record 73 78 Proof of previous convictions by criminal record 74 Division 10--Non-appearance of party 74 79 Non-appearance of informant 74 80 Non-appearance of accused charged with summary offence 75 81 Non-appearance of accused charged with indictable offence 76 82 Non-appearance of corporate accused charged with indictable offence 76 83 Admissibility of evidence in absence of accused where full brief served 77 84 Admissibility of evidence in absence of accused where preliminary brief served 78 85 Non-appearance of accused--Infringements Act 2006 79 86 Proof of criminal record in absence of accused 80 87 Limitations on sentencing in absence of accused 81 PART 3.4--REHEARING 83 88 Right to apply for rehearing 83 89 Notice of intention to apply for rehearing 83 90 Service of notice 83 91 Stay of sentence etc. 84 92 Court may order rehearing 85 93 Failure to appear on application 85 94 Automatic rehearing in certain cases 85 CHAPTER 4--COMMITTAL PROCEEDING 86 PART 4.1--PRELIMINARY 86 95 Definition 86 96 When a committal proceeding must be held 86 97 Purposes of a committal proceeding 86 98 When a committal proceeding commences 87 99 Time limit for determining certain committal proceedings for a sexual offence 87 100 Hearings in a committal proceeding and attendance of accused 88 561013B.I-3/12/2008 iv BILL LA INTRODUCTION 3/12/2008

Clause Page PART 4.2--FILING HEARING 90 101 Filing hearing 90 102 Time limit for filing hearing 90 PART 4.3--COMPULSORY EXAMINATION 91 103 Application for order 91 104 Order for compulsory examination hearing 92 105 Notice of compulsory examination order to be served 93 106 Compulsory examination hearing 93 PART 4.4--PRE-HEARING DISCLOSURE OF PROSECUTION CASE 95 107 Informant must serve hand-up brief 95 108 How hand-up brief must be served 95 109 Copy hand-up brief to be filed and forwarded to DPP 96 110 Contents of hand-up brief 96 111 Continuing obligation of disclosure 100 112 Rules with respect to statements 100 113 Rules with respect to recordings 101 114 Disclosure of address or telephone number of witness 102 115 Inspection of exhibits 103 116 Informant may serve and file plea brief 103 117 Contents of plea brief 104 PART 4.5--CASE DIRECTION 106 118 Case direction notice 106 119 Contents of case direction notice 107 120 Late application for leave to cross-examine witness 108 121 Adjournment without appearance of parties 109 122 Compliance with request to copy or inspect items or disclose previous convictions of witness 110 123 No cross-examination of certain witnesses in sexual offence cases 111 124 Leave required to cross-examine other witnesses 111 PART 4.6--COMMITTAL MENTION AND CASE CONFERENCE 114 125 Committal mention hearing 114 126 Time for holding committal mention hearing 114 127 Committal case conference 116 561013B.I-3/12/2008 v BILL LA INTRODUCTION 3/12/2008

Clause Page PART 4.7--COMMITTAL HEARING 117 128 Committal hearing 117 129 Attendance of witnesses 117 130 Giving of evidence by witnesses 118 131 Disclosure of address or telephone number of witness 119 132 Cross-examination of witnesses 120 133 Special rules applicable to sexual offences 120 134 Failure of witness to attend committal hearing 122 135 Court may permit accused to be absent from committal hearing 122 136 Accused who absconds etc. during a committal hearing 123 137 Accused (natural person) absent at close of prosecution case 123 138 Procedure on accused's attendance after absence 124 PART 4.8--EVIDENCE IN COMMITTAL PROCEEDING 125 139 Admissibility of non-oral evidence 125 140 Procedure if accused makes admission of relevant fact or matter 126 PART 4.9--DETERMINATION OF COMMITTAL PROCEEDING 127 141 Determination of committal proceeding where hand-up brief used 127 142 Determination of committal proceeding where plea brief used 128 143 Determination of committal proceeding where accused elects to stand trial 129 144 Procedure before and on committing accused for trial 129 PART 4.10--PROCEDURE AFTER COMMITTAL 132 145 Transfer of summary offences that are related offences on or after committal 132 146 Documents to be forwarded to DPP 132 147 Accused entitled to copies of depositions and exhibits 133 148 Absent corporate accused to be notified of committal 133 PART 4.11--TAKING EVIDENCE AFTER ACCUSED COMMITTED FOR TRIAL 135 149 Application for order that evidence be taken after committal 135 150 Determination of application 135 151 Attendance of witness 136 152 Taking of evidence after committal 137 561013B.I-3/12/2008 vi BILL LA INTRODUCTION 3/12/2008

Clause Page PART 4.12--GENERAL 139 153 Special mention hearing 139 154 Non-appearance of corporate accused 139 155 Nature of committal proceeding 140 156 Nothing in Chapter affects certain powers of DPP 140 157 DPP may give directions for release of property tendered in evidence 140 CHAPTER 5--TRIAL ON INDICTMENT 142 PART 5.1--INTRODUCTION 142 158 Application of Chapter 142 PART 5.2--INDICTMENT AND PLACE OF TRIAL 143 159 DPP or Crown Prosecutor may file an indictment 143 160 Choice of Supreme Court or County Court for filing an indictment 143 161 Direct indictment commences criminal proceeding 144 162 Filing of any other indictment does not commence criminal proceeding 144 163 Time limits for filing certain indictments 144 164 Filing of fresh indictment 145 165 Order for amendment of indictment 146 166 Errors etc. in indictment 146 167 Supreme Court may order that accused be tried in County Court or Supreme Court 147 168 Court may transfer certain charges to Magistrates' Court 147 169 Place of hearing of criminal trial 148 170 Multiple charges or multiple accused on single indictment 148 PART 5.3--NOTIFYING ACCUSED OF INDICTMENT 149 171 Copy indictment to be served 149 172 DPP may nominate address etc. for service of documents 149 173 Extra notice for corporate accused 150 174 Compelling attendance when direct indictment filed 150 175 Service of summons 151 176 Warrant to be accompanied by indictment and notice 152 PART 5.4--DISCONTINUING A PROSECUTION 153 177 DPP may discontinue a prosecution without adjudication 153 178 Release from custody on discontinuance of prosecution 154 561013B.I-3/12/2008 vii BILL LA INTRODUCTION 3/12/2008

Clause Page PART 5.5--PRE-TRIAL PROCEDURE 155 Division 1--Directions hearings 155 179 Directions hearing 155 180 Accused may be arraigned at a directions hearing 155 181 Powers of court at directions hearing 155 Division 2--Pre-trial disclosure 157 182 Summary of prosecution opening and notice of pre-trial admissions 157 183 Response of accused to summary of prosecution opening and notice of pre-trial admissions 158 184 Intention to depart at trial from document filed and served 159 185 Continuing obligation of disclosure 159 186 Disclosure of address or telephone number of witness 161 187 Previous convictions of witness 162 188 Prosecution notice of additional evidence 163 189 Expert evidence 163 190 Alibi evidence 164 191 Offence to communicate with alibi witness 166 Division 3--Orders 166 192 Power to change place of trial 166 193 Order for separate trial 167 194 Order for separate trial--sexual offences 168 195 Order for separate trial--conspiracy 168 196 Other powers of court not affected 168 197 Order for legal representation for accused 168 198 Order for taking evidence from a witness before trial 170 Division 4--Procedure for pre-trial orders and other decisions 172 199 Court may make orders and other decisions before trial 172 200 Disclosure of pre-trial issues 173 201 Court may decide pre-trial issue without a hearing 173 202 Hearing of application for exclusion of evidence 174 203 Judge at pre-trial hearing need not be trial judge 175 204 Pre-trial orders and other decisions generally binding on trial judge 175 205 Pre-trial orders and other decisions may be applied in new trial 175 206 Procedure if prosecution proposes not to lead evidence 176 PART 5.6--SENTENCE INDICATION 177 207 Court may give sentence indication 177 208 Application for sentence indication 177 209 Effect of sentence indication 178 561013B.I-3/12/2008 viii BILL LA INTRODUCTION 3/12/2008

Clause Page PART 5.7--TRIAL 179 Division 1--Preliminary 179 210 When trial commences 179 211 Time limit for commencing trial for offences other than sexual offences 179 212 Time limits for commencing trials for sexual offences 180 213 Powers of trial judge not affected 180 214 Non-appearance of corporate accused at trial 180 Division 2--Arraignment 181 215 Arraignment 181 216 Written pleas of guilty may be accepted 181 217 Arraignment in presence of jury panel 182 218 Special pleas in addition to plea of not guilty 182 219 Plea of guilty to alternative offence 182 220 Form of plea of previous conviction or previous acquittal 183 221 Refusal to plead 183 Division 3--Assisting the jury 183 222 Judge may address jury 183 223 Jury documents 184 Division 4--Opening addresses 185 224 Opening address by prosecutor 185 225 Response of accused to prosecution opening 186 Division 5--Case for the accused 186 226 Accused entitled to respond after close of prosecution case 186 227 Election when accused is legally represented 187 228 Election when accused is not legally represented 187 229 Procedure for joint trials if no-case submission made 188 230 Questioning to determine proper course of proceeding 188 231 Opening address of accused 189 Division 6--Giving of evidence 189 232 Manner of giving evidence 189 233 Introduction of evidence not previously disclosed 190 Division 7--Closing addresses and judge's directions to the jury 191 234 Prosecution closing address 191 235 Closing address of the accused 192 236 Supplementary prosecution address 192 237 Comment on departure or failure 192 238 Judge's directions to the jury 193 561013B.I-3/12/2008 ix BILL LA INTRODUCTION 3/12/2008

Clause Page Division 8--Alternative verdicts and discharge of jury from delivering verdict 194 239 Alternative verdicts on charges other than treason or murder 194 240 Judge may order that guilt in respect of alternative offences is not to be determined 194 241 When judge may enter finding of guilty or not guilty 194 PART 5.8--GENERAL 196 Division 1--Hearing of charges for related and unrelated summary offences 196 242 Summary offence related to indictable offence 196 243 Unrelated summary offence 197 Division 2--Criminal record 198 244 Criminal record 198 245 Proof of previous convictions by criminal record 199 Division 3--Powers and obligations 200 246 Attendance of accused at hearings 200 247 Power to extend or abridge time 200 248 Parties must inform Juries Commissioner of certain events 201 249 Counsel required to retain brief for trial 201 250 Complaints about legal practitioners 202 251 Judge at earlier trial not prevented from presiding at later trial 202 252 Offence for corporate accused to fail to appear 203 253 Abolition of grand jury procedure 203 CHAPTER 6--APPEALS AND CASES STATED 204 PART 6.1--APPEAL FROM MAGISTRATES' COURT TO COUNTY COURT 204 Division 1--Appeal by offender 204 254 Right of appeal 204 255 How appeal is commenced 204 256 Determination of appeal 206 Division 2--Appeal by DPP against sentence 206 257 DPP's right of appeal against sentence 206 258 How appeal is commenced 207 259 Determination of DPP's appeal 207 561013B.I-3/12/2008 x BILL LA INTRODUCTION 3/12/2008

Clause Page Division 3--Appeal by DPP--Failure to fulfil undertaking 208 260 DPP's right of appeal--failure to fulfil undertaking 208 261 How appeal is commenced 209 262 Determination of DPP's appeal--failure to fulfil undertaking 209 Division 4--Procedure 210 263 Late notice of appeal deemed to be application for leave to appeal 210 264 Stay of order 210 265 Bail pending appeal 211 266 Abandonment of appeal 211 267 Appellant's failure to appear 213 268 Respondent's failure to appear on appeal by DPP 214 269 One notice of appeal for 2 or more sentences 214 270 Appeal against aggregate sentence 215 271 Appeal to County Court authorised by other Acts 215 PART 6.2--APPEAL FROM MAGISTRATES' COURT TO SUPREME COURT ON A QUESTION OF LAW 216 272 Appeal to Supreme Court on a question of law 216 273 Appeal on question of law precludes appeal to County Court 217 PART 6.3--APPEAL AND CASE STATED FROM COUNTY COURT OR TRIAL DIVISION OF SUPREME COURT TO COURT OF APPEAL 218 Division 1--Appeal against conviction 218 274 Right of appeal against conviction 218 275 How appeal is commenced 218 276 Determination of appeal against conviction 218 277 Orders etc. on successful appeal 219 Division 2--Appeal by offender against sentence 221 278 Right of appeal against sentence imposed by originating court 221 279 How appeal is commenced 221 280 Determination of application for leave to appeal 222 281 Determination of appeal 222 282 Orders etc. on successful appeal 223 283 Right of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court 223 284 How appeal is commenced 224 285 Determination of appeal 224 286 Orders etc. on successful appeal 225 561013B.I-3/12/2008 xi BILL LA INTRODUCTION 3/12/2008

Clause Page Division 3--Crown appeal against sentence 225 287 Right of appeal--inadequate sentence 225 288 How appeal is commenced 226 289 Determination of Crown appeal 226 290 Orders etc. on successful appeal 227 291 Right of appeal--failure to fulfil undertaking 227 292 How appeal is commenced 227 293 Determination of Crown appeal--failure to fulfil undertaking 228 294 Powers of Court of Appeal on successful appeal 228 Division 4--Interlocutory appeal 229 295 Right of appeal against interlocutory decision 229 296 Review of refusal to certify 230 297 When leave to appeal may be given 231 298 How interlocutory appeal is commenced 232 299 Adjournment of trial if leave to appeal given 233 300 Determination of appeal 233 301 Determination of interlocutory appeal to be entered on record 234 Division 5--Case stated for Court of Appeal 234 302 Reservation of question of law 234 303 Adjournment if question of law reserved 235 304 Refusal to reserve question of law 235 305 Case to be stated if question of law reserved 236 306 General powers of Court of Appeal on case stated 236 307 Judgment to be entered on record 236 308 DPP may refer point of law to Court of Appeal 237 Division 6--Status of sentences and orders during appeal period 237 309 Sentence not stayed during appeal period 237 310 Bail pending appeal 238 311 Stay of certain orders during appeal period 238 312 Execution of order for forfeiture or destruction of property 239 Division 7--Powers and procedure 239 313 Extension of time for filing or serving notice of appeal or notice of application for leave to appeal 239 314 Abandonment of appeal 240 315 Powers which may be exercised by a single Judge of Appeal 240 316 Trial judge may be required to provide report on appeal 240 317 Production of documents, exhibits or other things 241 318 Order for examination of compellable witness 241 319 Evidence of competent but not compellable witness 241 320 Reference of question to special commissioner 242 321 New evidence--effect on sentence 242 322 Sentence in absence of offender 243 561013B.I-3/12/2008 xii BILL LA INTRODUCTION 3/12/2008

Clause Page 323 Bail following appeal 243 324 Warrants 243 325 Ancillary orders of originating court 244 326 Expenses of assessors and special commissioners 244 CHAPTER 7--REFERENCE TO COURT OF APPEAL ON PETITION FOR MERCY 245 327 Reference by Attorney-General 245 CHAPTER 8--GENERAL 246 PART 8.1--CONDUCT OF PROCEEDING 246 328 Appearance 246 329 When accused etc. is required to appear at hearing 246 330 When accused etc. is required to attend hearing 247 331 Power to adjourn proceeding 248 332 Transfer of accused between place of detention and court 249 333 Power to return accused to youth justice centre 250 334 Proceedings against bodies corporate 251 335 Interpreter 252 336 Subpoenas and witness summonses 253 337 Court may act on application or on own motion 253 PART 8.2--SERVICE OF DOCUMENTS 254 338 General rules as to service 254 339 Personal service 254 340 Service on informant or DPP 255 341 Service on company, registered body, incorporated association or other body corporate 257 342 Ordinary service 258 343 Personal service satisfies ordinary service 259 344 Last known place of residence or business 259 345 Order for substituted service 259 346 Who may effect service 259 347 Proof of service 259 PART 8.3--COSTS 261 Division 1--Preliminary 261 348 Right to be heard 261 561013B.I-3/12/2008 xiii BILL LA INTRODUCTION 3/12/2008

Clause Page Division 2--Costs in summary proceedings and committal proceedings 261 349 Costs in Magistrates' Court 261 350 Notice to appear 262 351 Convicted accused to pay filing fee 262 Division 3--Costs in trials on indictment 263 352 Costs in the Supreme Court and County Court 263 353 Costs order 264 Division 4--Costs on appeal 264 354 Costs on appeal to County Court 264 355 Costs on abandonment of appeal to County Court 265 356 Costs on appeal from Magistrates' Court to Supreme Court on a question of law 266 357 No costs on appeal to Court of Appeal or on new trial 266 Division 5--Legal practitioners 266 358 Costs liability of legal practitioner 266 PART 8.4--MISCELLANEOUS 269 359 Issue of warrant to arrest 269 360 Power to amend when there is a defect or error 269 361 Transfer of charge to court with jurisdiction 270 362 Court may direct that a person be prosecuted for perjury 270 363 Disclosure of material by prosecution 270 364 Court fees not payable by accused 270 365 Supreme Court--limitation of jurisdiction 271 366 Rules of court 271 367 Regulations 271 CHAPTER 9--REPEALS AND CONSEQUENTIAL AND OTHER AMENDMENTS 274 PART 9.1--CRIMES (CRIMINAL TRIALS) ACT 1999 274 368 Repeal 274 PART 9.2--CRIMES ACT 1958 275 369 Amendment of the Crimes Act 1958 275 561013B.I-3/12/2008 xiv BILL LA INTRODUCTION 3/12/2008

Clause Page PART 9.3--CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 276 370 New section 14A inserted 276 14A Appeal in relation to fitness to plead 276 371 New section 24AA inserted 278 24AA Appeal against mental impairment verdict 278 372 Consequential amendments 280 PART 9.4--MAGISTRATES' COURT ACT 1989 282 373 Joint committals 282 374 Consequential amendments 284 PART 9.5--CHILDREN, YOUTH AND FAMILIES ACT 2005 285 375 Definitions inserted 285 376 New Part 5.1A inserted in Chapter 5 285 PART 5.1A--COMMENCEMENT OF PROCEEDINGS 285 344A Time limits for filing a charge 285 344B Application for extension of time for commencement of proceeding 287 344C Extension of time 288 344D Rehearing 289 377 New section 516A inserted 290 516A Joint committal proceedings 290 PART 9.6--APPEAL COSTS ACT 1998 293 378 New sections 15A, 15B and 15C inserted 293 15A Application for indemnity certificate if interlocutory appeal by accused is successful 293 15B Application for indemnity certificate by respondent if interlocutory appeal by prosecution 294 15C Application for indemnity certificate if case stated for Court of Appeal 295 PART 9.7--SENTENCING ACT 1991 296 379 Repeal 296 380 New section 112A inserted 296 112A Maximum fine for indictable offence heard and determined summarily 296 381 Maximum fine for body corporate 297 561013B.I-3/12/2008 xv BILL LA INTRODUCTION 3/12/2008

Clause Page PART 9.8--MISCELLANEOUS AMENDMENTS 298 382 Reclassification of certain offences 298 383 Option of jury trial removed 298 384 Repeal of provisions concerning sentence indications in Supreme Court and County Court 298 385 Repeal of Chapter 299 __________________ SCHEDULES 300 SCHEDULE 1--Charges on a Charge-Sheet or Indictment 300 1 Statement of offence 300 2 Statement of particulars 300 3 Statutory offence 300 4 Exceptions, exemptions etc. 301 5 Joinder of charges 301 6 Charge against multiple accused 301 7 Descriptions generally 301 8 Description of persons 302 9 Description of document 302 10 Description of property 302 11 Statement of intent to deceive, injure or defraud 303 12 Perjury, subornation of perjury, etc. 303 13 Names of witnesses to be included on indictment 304 SCHEDULE 2--Indictable Offences that may be Heard and Determined Summarily 305 1 Common law 305 2 Control of Weapons Act 1990 305 3 Crimes Act 1958 305 4 Dangerous Goods Act 1985 309 5 Drugs, Poisons and Controlled Substances Act 1981 310 6 Electricity Industry Act 2000 310 7 Electricity Safety Act 1998 310 8 Environment Protection Act 1970 310 9 Equipment (Public Safety) Act 1994 311 10 Firearms Act 1996 311 11 Food Act 1984 311 12 Gas Industry Act 2001 311 13 Gas Safety Act 1997 311 14 Health Records Act 2001 311 15 Heritage Act 1995 312 16 Infertility Treatment Act 1995 312 17 Information Privacy Act 2000 312 18 Juries Act 2000 312 561013B.I-3/12/2008 xvi BILL LA INTRODUCTION 3/12/2008

Clause Page 19 Major Events (Aerial Advertising) Act 2007 312 20 Occupational Health and Safety Act 2004 312 21 Police Regulation Act 1958 312 22 Pollution of Waters by Oil and Noxious Substances Act 1986 312 23 Prostitution Control Act 1994 312 24 Road Management Act 2004 313 25 Sex Offenders Registration Act 2004 313 26 Sports Event Ticketing (Fair Access) Act 2002 313 27 Tobacco Act 1987 313 28 Water Act 1989 313 29 Water Industry Act 1994 313 SCHEDULE 3--Persons who may Witness Statements in Preliminary Brief, Full Brief or Hand-up Brief 314 ENDNOTES 317 561013B.I-3/12/2008 xvii BILL LA INTRODUCTION 3/12/2008

PARLIAMENT OF VICTORIA Introduced in the Assembly Criminal Procedure Bill 2008 A Bill for an Act to provide for procedures for the initiation and conduct of criminal proceedings and appeals in criminal proceedings, to amend the Crimes Act 1958, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, the Children, Youth and Families Act 2005, the Sentencing Act 1991 and the Appeal Costs Act 1998 and to repeal the Crimes (Criminal Trials) Act 1999 and for other purposes. The Parliament of Victoria enacts: CHAPTER 1--PRELIMINARY 1 Purposes The purposes of this Act are-- (a) to clarify, simplify and consolidate the laws 5 relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court; 561013B.I-3/12/2008 1 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 1 (b) to introduce a new procedure permitting the service of a notice to appear in the Magistrates' Court; (c) to provide new pre-trial disclosure 5 requirements for the prosecution; (d) to provide for a 6-month time limit for the filing of charges for summary offences in the Children's Court; (e) to provide for the transfer to the County 10 Court or Supreme Court of summary offences related to an offence to be tried on indictment by the relevant court; (f) to abolish the procedure of indictment by grand jury; 15 (g) to provide for interlocutory appeals in criminal proceedings in the County Court and the Supreme Court; (h) to clarify the tests relating to determination of appeals by the Court of Appeal; 20 (i) to provide for the stay of sentences on appeal; (j) to amend the Sentencing Act 1991 to provide for a maximum fine that may be imposed for an indictable offence that is 25 heard and determined summarily; (k) to amend the Crimes Act 1958, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, the Children, Youth and 30 Families Act 2005 and the Appeal Costs Act 1998; (l) to repeal the Crimes (Criminal Trials) Act 1999; 561013B.I-3/12/2008 2 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 2 (m) to make consequential and other amendments. 2 Commencement (1) This Chapter comes into operation on the day 5 after the day on which this Act receives the Royal Assent. (2) Section 384 comes into operation on 1 July 2010. (3) Subject to subsection (4), the remaining provisions of this Act come into operation on a 10 day or days to be proclaimed. (4) If a provision referred to in subsection (3) does not come into operation before 1 January 2011, it comes into operation on that day. 3 Definitions 15 In this Act-- accused means a person who-- (a) is charged with an offence; or (b) is directed under section 362 to be tried for perjury; 20 appeal includes application for leave to appeal; appeal period means the period permitted by or under this Act or any other Act for commencing an appeal under Part 6.3 or, if a notice of appeal or notice of application for 25 leave to appeal under Part 6.3 is filed within that period, the determination of the appeal; appear, in relation to a party, has the meaning given in section 328; appellant includes an applicant for leave to 30 appeal; 561013B.I-3/12/2008 3 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 appropriate registrar means-- (a) the registrar at the venue of the Magistrates' Court referred to in section 11; or 5 (b) if an order is made under section 31, the registrar at the venue of the Magistrates' Court at which the hearing is to be held; arraignment has the meaning given in 10 section 215(1); attend, in relation to a person, means be physically present in court or, if authorised to do so under Division 2 or 3 of Part IIA of the Evidence Act 1958, appear or be brought 15 before the court by audio visual link; cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury; commencement of trial, in relation to the 20 Supreme Court or the County Court, has the meaning given in section 210; compulsory examination hearing means a hearing under section 106; contest mention hearing means a hearing under 25 section 55; conviction, in Chapters 6 and 8, includes a finding of guilt by a court, whether or not a conviction is recorded; corporate accused means an accused that is a 30 body corporate; criminal record, in relation to a person, means a document that-- (a) sets out all previous convictions of the person alleged by the prosecution; and 561013B.I-3/12/2008 4 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 (b) complies with section 77 or 244, as the case requires; Crown Prosecutor means the Chief Crown Prosecutor, a Senior Crown Prosecutor or a 5 Crown Prosecutor appointed under the Public Prosecutions Act 1994; depositions means the transcript of evidence given in a committal proceeding and any statements admitted in evidence in a 10 committal proceeding in accordance with Chapter 4; direct indictment means an indictment filed against an accused who has not been committed for trial in respect of the offence 15 charged in the indictment or a related offence; DPP means the Director of Public Prosecutions for Victoria; filing hearing means a hearing referred to in 20 section 101; full brief means a full brief described in section 41; hand-up brief means a hand-up brief described in section 110; 25 in detention means-- (a) in a prison in the legal custody of the Secretary to the Department of Justice; or (b) in custody in a police gaol in the legal 30 custody of the Chief Commissioner of Police; or (c) detained in an approved mental health service within the meaning of the Mental Health Act 1986 in the legal 561013B.I-3/12/2008 5 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 custody of the authorised psychiatrist of the approved mental health service; or (d) in custody in a remand centre, youth residential centre or youth justice centre 5 within the meaning of the Children, Youth and Families Act 2005 in the legal custody of the Secretary to the Department of Human Services; or (e) in custody in a residential institution or 10 a residential treatment facility within the meaning of the Disability Act 2006 in the legal custody of the Secretary to the Department of Human Services; indictable offence that may be heard and 15 determined summarily means an offence to which section 28(1) applies; informant means a person who commences a criminal proceeding in the Magistrates' Court; 20 infringements registrar has the same meaning as in the Infringements Act 2006; interlocutory appeal means an appeal under Division 4 of Part 6.3; interlocutory decision means a decision made by 25 a trial judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding; Juries Commissioner has the same meaning as in 30 the Juries Act 2000; legal practitioner means-- (a) an Australian legal practitioner within the meaning of the Legal Profession Act 2004; or 561013B.I-3/12/2008 6 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 (b) a person referred to in section 2.2.2(2)(g) of the Legal Profession Act 2004 who engages in legal practice in that capacity; 5 mention hearing means a hearing referred to in section 53; ordinary service means service in accordance with section 342; original jurisdiction includes-- 10 (a) a proceeding for an indictable offence; and (b) a proceeding for a related summary offence heard under section 242; and (c) a proceeding for an unrelated summary offence heard under section 243; and 15 (d) a proceeding for contempt of court; and (e) a proceeding for variation or breach of a sentencing order under the Sentencing Act 1991; originating court means the County Court in its 20 original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction; personal service means service in accordance with section 339; 25 plea brief means a plea brief described in section 117; police gaol has the same meaning as in the Corrections Act 1986; preliminary brief means a preliminary brief 30 described in section 37; previous conviction means a prior conviction or finding of guilt by a court (whether in or out of Victoria) but does not include-- 561013B.I-3/12/2008 7 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 (a) a conviction or finding of guilt set aside by the Magistrates' Court under section 92; or (b) a conviction or finding of guilt set aside 5 by the County Court under section 256; or (c) a conviction or finding of guilt set aside by the Court of Appeal under section 277; or 10 (d) a conviction or finding of guilt by a children's court (whether in or out of Victoria) made more than 10 years before the hearing at which it is sought to be proved; 15 prison has the same meaning as in the Corrections Act 1986; prison officer has the same meaning as in the Corrections Act 1986; proceeding, in relation to the Magistrates' Court, 20 includes a committal proceeding but does not include the exercise by a registrar of the Magistrates' Court of any jurisdiction, power or authority vested in the registrar as infringements registrar; 25 public official means-- (a) a public official within the meaning of the Public Administration Act 2004; or (b) a person employed by, or the holder of 30 an office in, or on the governing body of a Council within the meaning of the Local Government Act 1989; or (c) in the case of a charge for an offence referred to in section 24(1) of the 35 Prevention of Cruelty to Animals Act 561013B.I-3/12/2008 8 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 1986, a full-time officer of the Royal Society for the Prevention of Cruelty to Animals authorised under section 24(1)(b) of that Act; 5 related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character; related summary offence means a summary 10 offence the proceedings for which are transferred from the Magistrates' Court under section 145; responsible person, in relation to a person in detention, means-- 15 (a) in the case of a prison, the officer in charge of the prison; (b) in the case of a police gaol, the Chief Commissioner of Police; (c) in the case of an approved mental 20 health service within the meaning of the Mental Health Act 1986, the authorised psychiatrist of the approved mental health service; (d) in the case of a remand centre, youth 25 residential centre or youth justice centre within the meaning of the Children, Youth and Families Act 2005, the Secretary to the Department of Human Services; 30 (e) in the case of a residential institution or a residential treatment facility within the meaning of the Disability Act 2006, the Secretary to the Department of Human Services; 561013B.I-3/12/2008 9 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 3 return date, in relation to a criminal proceeding in the Magistrates' Court, means the first date on which the proceeding is listed before the court; 5 sentence includes-- (a) the recording of a conviction; and (b) an order made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to 10 the making of the order; and (c) an order made under section 11 of the Sex Offenders Registration Act 2004; and (d) an order made under section 84S or 15 84T of the Road Safety Act 1986; and (e) an order made under section 365, 367, 373, 380 or 387 of the Children, Youth and Families Act 2005 made by the Supreme Court in its original 20 jurisdiction or the County Court in its original jurisdiction; Note Section 586 of the Children, Youth and Families Act 2005 gives the Supreme Court and the County 25 Court, when sentencing a child for an indictable offence, power to make any sentencing order which the Children's Court may make. sexual offence means-- (a) an offence under Subdivision (8A), 30 (8B), (8C), (8D), (8E) or (8EAA) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment; or (b) an attempt to commit an offence 35 referred to in paragraph (a); or 561013B.I-3/12/2008 10 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Chapter 1--Preliminary s. 4 (c) an assault with intent to commit an offence referred to in paragraph (a); summary case conference means a conference referred to in section 54; 5 summary hearing means a hearing conducted in accordance with Part 3.3; trial judge means the judge of the Trial Division of the Supreme Court or the judge of the County Court before whom an accused is 10 tried; Victoria Legal Aid means Victoria Legal Aid established under section 3 of the Legal Aid Act 1978; youth justice centre means a youth justice centre 15 established under section 478 of the Children, Youth and Families Act 2005. 4 References to Parts Unless the context otherwise requires, a reference in this Act to a Part by a number must be 20 construed as a reference to the Part of this Act designated by that number. __________________ 561013B.I-3/12/2008 11 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.1--Ways in which a Criminal Proceeding is Commenced s. 5 CHAPTER 2--COMMENCING A CRIMINAL PROCEEDING PART 2.1--WAYS IN WHICH A CRIMINAL PROCEEDING IS COMMENCED 5 5 How a criminal proceeding is commenced A criminal proceeding is commenced by-- (a) filing or signing a charge-sheet in accordance with section 6; or (b) filing a direct indictment in accordance with 10 section 159; or (c) a direction under section 362 that a person be tried for perjury. __________________ 561013B.I-3/12/2008 12 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.2--Charge-sheet and Listing of Matter s. 6 PART 2.2--CHARGE-SHEET AND LISTING OF MATTER 6 Commencement of a criminal proceeding in the Magistrates' Court (1) A criminal proceeding is commenced-- 5 (a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or (b) if the accused is arrested without a warrant and is released on bail, by filing a charge- sheet containing a charge with a bail justice; 10 or (c) if a summons is issued under section 14, at the time the charge-sheet is signed. Note A criminal proceeding against a child is commenced in the 15 same manner in the Children's Court: section 528 of the Children, Youth and Families Act 2005. (2) If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of sections 8(1) 20 and 9(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met. (3) A charge-sheet must-- (a) be in writing; and (b) be signed by the informant personally; and 25 (c) comply with Schedule 1. Note Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet. 30 (4) The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily. 561013B.I-3/12/2008 13 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.2--Charge-sheet and Listing of Matter s. 7 7 Time limits for filing a charge-sheet (1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been 5 committed except where-- (a) otherwise provided by or under any other Act; or (b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the 10 proceeding being commenced after the expiry of that period. Note See Part 5.1A of Chapter 5 of the Children, Youth and Families Act 2005 for a shorter time limit in relation to 15 children. (2) A proceeding for an indictable offence-- (a) may be commenced at any time, except where otherwise provided by or under this or any other Act; and 20 (b) may be heard and determined summarily even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed. 25 8 Order for amendment of charge-sheet (1) The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to 30 the accused. (2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the 35 hearing. 561013B.I-3/12/2008 14 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.2--Charge-sheet and Listing of Matter s. 9 (3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced. 5 (4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if-- (a) the charge-sheet before the amendment 10 sufficiently disclosed the nature of the offence; and (b) the amendment does not amount to the commencement of a proceeding for a new offence; and 15 (c) the amendment will not cause injustice to the accused. 9 Errors etc. in charge-sheet (1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1. 20 (2) A charge on a charge-sheet is not invalid by reason only of-- (a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or 25 (b) incorrectly stating the time at which the offence was committed; or (c) stating the offence to have been committed on an impossible day or on a day that never happened. 561013B.I-3/12/2008 15 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.2--Charge-sheet and Listing of Matter s. 10 10 Listing of matter for mention hearing or filing hearing in the Magistrates' Court (1) If a charge-sheet contains a charge for a summary offence, the proceeding must be listed for a 5 mention hearing. (2) Subject to subsection (3), if a charge-sheet contains a charge for an indictable offence that may be heard and determined summarily, the proceeding may be listed for a mention hearing or 10 a filing hearing, having regard to any request for a committal proceeding included on the charge- sheet. (3) If a notice to appear is served under section 21 and a charge-sheet is filed in accordance with 15 section 22, the proceeding must be listed for a mention hearing on the date specified in the notice to appear. (4) Despite subsections (1) and (2), if a charge-sheet contains a charge for an indictable offence that is 20 not an indictable offence that may be heard and determined summarily, the proceeding must be listed for a filing hearing. Notes 1 A mention hearing is the first hearing for a charge that will be 25 heard and determined summarily. 2 A filing hearing is the first stage in a committal proceeding under Chapter 4. 3 Section 28(1) sets out the indictable offences that may be heard and determined summarily. 30 11 Place of hearing (1) A criminal proceeding in the Magistrates' Court is to be heard at the venue of the court that is nearest to-- (a) the place where the offence is alleged to 35 have been committed; or 561013B.I-3/12/2008 16 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.2--Charge-sheet and Listing of Matter s. 11 (b) the place of residence of the accused-- except where otherwise provided by this or any other Act or by a nomination under subsection (2). Note 5 Part 2 of the Magistrates' Court Act 1989 sets out the special requirements for matters that may be heard in the various Divisions of the Magistrates' Court: the Drug Court Division, the Koori Court Division, the Family Violence Court Division and the Neighbourhood Justice Division. 10 (2) The Chief Magistrate may from time to time, by notice published in the Government Gazette, nominate a venue of the Magistrates' Court as a venue for the hearing of a specified criminal proceeding or a specified class of criminal 15 proceeding. (3) A criminal proceeding in the Magistrates' Court is not invalid only because it was conducted at a venue of the court other than the venue referred to in subsection (1) or nominated under 20 subsection (2). __________________ 561013B.I-3/12/2008 17 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 12 PART 2.3--NOTIFYING ACCUSED OF COURT APPEARANCE Division 1--Summons or warrant to arrest 12 Court may issue summons or warrant to arrest 5 (1) On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of-- (a) a summons to answer to the charge directed to the accused; or 10 (b) a warrant to arrest in order to compel the attendance of the accused-- unless a notice to appear has been served on the accused under Division 2. (2) An application under subsection (1)(b) must be 15 made by the informant personally but an application under subsection (1)(a) may be made by the informant or a person on behalf of the informant. (3) An application under subsection (1) may be made 20 by the applicant in person or by post. (4) On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue-- (a) a summons to answer to the charge; or 25 (b) subject to subsection (5), a warrant to arrest. (5) A registrar of the Magistrates' Court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that-- 30 (a) it is probable that the accused will not answer a summons; or 561013B.I-3/12/2008 18 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 13 (b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or (c) a warrant is required or authorised by any 5 other Act or for other good cause. Notes 1 If an accused fails to appear in answer to a summons, sections 80 and 81 provide for the issue of a warrant to arrest the accused. Section 330 provides for the issue of a warrant 10 to arrest a person who has been remanded in custody or granted bail to attend a hearing but fails to attend. 2 Section 29 of the Magistrates' Court Act 1989 enables a magistrate to exercise the powers of a registrar to issue a summons or warrant. 15 13 Summons or warrant to be accompanied by charge- sheet and notice when served A summons to answer to a charge or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied 20 by-- (a) a copy of the charge-sheet; and (b) a notice, in the form prescribed by the rules of court, containing-- (i) a summary of Division 2 of Part 3.2; 25 and (ii) advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and 30 (iii) details of how to contact Victoria Legal Aid. 561013B.I-3/12/2008 19 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 14 14 Police or public official may issue summons (1) Without limiting the power of a registrar of the Magistrates' Court in any way-- (a) a member of the police force; or 5 (b) a public official acting in the performance of his or her duty (whether the power to commence the proceeding is conferred on him or her by or under an Act or at common law)-- 10 may, after signing a charge-sheet containing a charge, issue a summons to answer to the charge. (2) If a member of the police force or a public official issues a summons under subsection (1), he or she must file the charge-sheet and summons with the 15 appropriate registrar within 7 days after signing the charge-sheet. (3) If it appears to the Magistrates' Court that subsection (2) has not been complied with in relation to a proceeding, the court may strike out 20 the charge. Note Section 349(3) allows the court to award costs if a charge is struck out. 15 Contents of summons 25 (1) A summons to answer to a charge must direct the accused to appear at the venue of the Magistrates' Court referred to in section 11 on a specified date and at a specified time to answer the charge. (2) A summons to answer to a charge for an 30 indictable offence that is to be served on a corporate accused must state that, if the accused does not appear in answer to the summons, the Magistrates' Court may proceed-- 561013B.I-3/12/2008 20 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 16 (a) in the case of an indictable offence that may be heard and determined summarily, to hear and determine the charge in the absence of the accused in accordance with Division 10 5 of Part 3.3; or (b) in any case, to conduct a committal proceeding in the absence of the accused in accordance with Chapter 4. Notes 10 1 See sections 80, 81 and 82 for consequences of failing to appear in answer to a summons. 2 Section 28(1) sets out the indictable offences that may be heard and determined summarily. 16 Personal service of summons 15 Except where otherwise expressly enacted, every summons to answer to a charge must be served personally on the accused in accordance with section 339-- (a) subject to paragraph (b), at least 14 days 20 before the return date; (b) in the case of a charge for an indictable offence in respect of which a registrar of the Magistrates' Court has fixed a date for a filing hearing, at least 7 days before that date 25 or any other time before that date that is prescribed by the regulations. Note See section 347(4) for filing in court of affidavit or declaration of service. 561013B.I-3/12/2008 21 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 17 17 Summons for summary offence may be served by ordinary service (1) A summons to answer to a charge for a summary offence must be served personally on the accused 5 in accordance with section 339 unless the informant is satisfied that ordinary service is appropriate in all the circumstances. Note Section 342 provides for ordinary service. 10 (2) In considering whether to effect service of a summons by ordinary service, an informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including-- 15 (a) the nature and gravity of the alleged offence; (b) whether the accused has previously been found guilty or convicted of any similar offence; (c) the period of time that has elapsed since the 20 accused's address for service was ascertained. (3) If a summons is served in accordance with section 342(a), evidence of service must state-- (a) how the informant ascertained the address to 25 which the summons was posted; and (b) the time and place of posting; and (c) whether the informant considered the matters referred to in subsection (2) before determining to effect service by post. 561013B.I-3/12/2008 22 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 18 18 Informant must nominate address etc. for service of documents (1) An informant must nominate in writing a business address, email address, if any, and fax number for 5 service on the informant of documents in relation to a charge. (2) A nomination under subsection (1) may be included on a charge-sheet or any other document served with a charge-sheet. 10 19 Extension of return date if summons not served (1) If the informant has not served a summons to answer to a charge, the appropriate registrar may extend a return date specified in the summons without cause on one occasion on the application 15 of the informant-- (a) before the return date; or (b) within 28 days after the return date. (2) The appropriate registrar may extend a return date on a subsequent occasion on the application of the 20 informant-- (a) before the current return date; or (b) within 28 days after the current return date-- if the registrar is satisfied by sworn evidence, whether oral or by affidavit, that reasonable 25 efforts have been made to serve the summons. Note See also section 331 as to the court's general power of adjournment. 561013B.I-3/12/2008 23 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 20 20 Adjournment of proceeding on application of accused On the application of the accused, the appropriate registrar may-- 5 (a) if the accused is not on bail or in custody, before or on the return date or on the date to which the proceeding is adjourned, adjourn the proceeding to a later date; (b) if the accused is on bail, on the return date or 10 on the date to which the proceeding is adjourned, adjourn the proceeding to a later date and extend bail but not vary the conditions of bail or revoke bail. Note 15 See also section 331 as to the court's general power of adjournment. Division 2--Notice to appear 21 Police or public official may serve notice to appear (1) A member of the police force or a public official 20 acting in the performance of his or her duties may serve on a person a notice to appear if the member or public official reasonably suspects that the person has committed-- (a) a summary offence; or 25 (b) an indictable offence that may be heard and determined summarily. (2) A notice to appear must-- (a) state the name of the person serving the notice; and 30 (b) if the notice is served by a public official, state the name of the employer of the public official; and 561013B.I-3/12/2008 24 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 22 (c) state a telephone number and email address at which the person serving the notice may be contacted and the business address of the person and may state similar details for a 5 person authorised to act in relation to the notice on behalf of the person serving the notice; and (d) state the full name and address of the person served with the notice; and 10 (e) state the offence that the person served with the notice is suspected of having committed; and (f) state in general terms the circumstances of the suspected offence; and 15 (g) direct the person served with the notice to appear at a venue of the Magistrates' Court on a date (at least 28 days after the date of service of the notice) and at a time specified in the notice to answer any charge in respect 20 of the suspected offence; and (h) include a summary of this Division; and (i) be signed by the person serving the notice. (3) A notice to appear must be served by-- (a) giving it to the person to be served; or 25 (b) if the person does not accept it, by putting it down in the person's presence and telling the person the nature of the document. 22 Notice to appear lapses unless charge-sheet filed within 14 days 30 (1) If a member of the police force or a public official serves a notice to appear on a person, the notice lapses on the expiry of 14 days after service unless, within that period, the member or public 561013B.I-3/12/2008 25 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 23 official files with a registrar of the Magistrates' Court-- (a) a charge-sheet containing a charge against the person for the suspected offence stated in 5 the notice to appear or a related offence; and (b) a copy of the notice to appear; and (c) evidence of service. (2) Failure to file a charge-sheet in accordance with subsection (1) does not affect the filing of a 10 charge-sheet at any later time. 23 Notice to be given on lapsing (1) Within 7 days after the lapsing of a notice to appear, the member of the police force or public official who served the notice must ensure that-- 15 (a) written notice is given to the person on whom the notice to appear was served that-- (i) a charge-sheet has not been filed; and (ii) the person is not required to appear at the Magistrates' Court on the date and 20 at the time specified in the notice to appear; and (b) the Magistrates' Court is notified that the notice to appear has lapsed. (2) A notice under subsection (1) is given by sending 25 it by prepaid ordinary post addressed to the person at the last known address of the person. 24 Preliminary brief to be served if charge-sheet filed If a charge-sheet is filed in accordance with section 22(1), the informant must-- 30 (a) serve a preliminary brief on the accused within 7 days after the day on which the charge-sheet is filed; and 561013B.I-3/12/2008 26 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 25 (b) on the return date have available a copy of the preliminary brief for provision to the accused or the legal practitioner representing the accused, on request. 5 Notes 1 Section 36 sets out how a preliminary brief must be served. 2 Section 37 sets out the contents of a preliminary brief, including a copy of the charge-sheet. 25 Non-appearance of accused served with notice to 10 appear (1) If a charge-sheet containing a charge for a summary offence is filed against an accused in accordance with section 22(1) and the accused does not appear in answer to the notice to appear, 15 the Magistrates' Court may-- (a) issue a warrant to arrest the accused; or (b) proceed to hear and determine the charge in the absence of the accused in accordance with Division 10 of Part 3.3; or 20 (c) adjourn the proceeding on any terms that it considers appropriate. (2) If a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily is filed against an accused 25 in accordance with section 22(1) and the accused does not appear in answer to the notice to appear, the Magistrates' Court may issue a warrant to arrest the accused. 561013B.I-3/12/2008 27 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 2.3--Notifying Accused of Court Appearance s. 26 26 Notice to appear does not commence proceeding Service of a notice to appear does not commence a criminal proceeding. Note 5 Chapter 8 contains general provisions that apply to all criminal proceedings. __________________ 561013B.I-3/12/2008 28 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 27 CHAPTER 3--SUMMARY PROCEDURE PART 3.1--WHEN A SUMMARY HEARING MAY BE HELD 27 Summary offences A charge for a summary offence is to be heard and 5 determined summarily in accordance with this Chapter or, if the case requires, Division 1 of Part 5.8. Note The procedure set out in the Infringements Act 2006 may 10 be used instead of commencing a proceeding for certain offences. See section 99 of the Magistrates' Court Act 1989. 28 Indictable offences that may be heard and determined summarily 15 (1) A charge for any of the following indictable offences may be heard and determined summarily by the Magistrates' Court, if section 29 is satisfied-- (a) an offence referred to in Schedule 2; 20 (b) an indictable offence under an Act or subordinate instrument or an offence at common law if the offence is described by an Act or subordinate instrument as being-- (i) a level 5 offence or level 6 offence; or 25 (ii) punishable by level 5 or level 6 imprisonment or fine or both; or 561013B.I-3/12/2008 29 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 29 (iii) punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 1200 penalty units or both-- unless the contrary intention appears in this 5 or any other Act or in any subordinate instrument. Note A level 5 offence is punishable by 10 years imprisonment maximum and a level 6 offence is punishable by 5 years 10 imprisonment maximum: section 109 of the Sentencing Act 1991. (2) If an indictable offence is described as being punishable in more than one way or in one of 2 or more ways, all of those ways must be referred to 15 in subsection (1) for subsection (1) to apply. (3) If an indictable offence referred to in Schedule 2 is qualified by reference to a specified amount or value or a specified kind of property, that qualification is not affected by subsection (1)(b) 20 or (2). 29 When an indictable offence may be heard and determined summarily (1) The Magistrates' Court may hear and determine summarily a charge for an offence to which 25 section 28(1) applies if-- (a) the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and 30 (b) the accused consents to a summary hearing. Notes 1 Section 82 provides for a summary hearing without consent in the case of a corporate accused which fails to appear in answer to a 35 summons. 561013B.I-3/12/2008 30 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 29 2 Section 168(3) provides that a charge transferred by order under that section must be heard and determined summarily. (2) For the purposes of subsection (1)(a), the 5 Magistrates' Court must have regard to-- (a) the seriousness of the offence including-- (i) the nature of the offence; and (ii) the manner in which the offence is alleged to have been committed, the 10 apparent degree of organisation and the presence of aggravating circumstances; and (iii) whether the offence forms part of a series of offences being alleged against 15 the accused; and (iv) the complexity of the proceeding for determining the charge; and (b) the adequacy of sentencing orders available to the court, having regard to the criminal 20 record of the accused; and (c) whether a co-accused is charged with the same offence; and (d) any other matter that the court considers relevant. 25 (3) A legal practitioner appearing for an accused may, on behalf of the accused, consent to a summary hearing of a charge for an indictable offence. (4) Nothing in subsection (2) applies to a proceeding in the Children's Court. 561013B.I-3/12/2008 31 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 30 (5) If a body corporate and a natural person are jointly charged with an indictable offence which may be heard and determined summarily, the Magistrates' Court must not hear and determine the charge 5 summarily against either of the accused unless-- (a) each of them consents to a summary hearing; or (b) if the body corporate fails to appear in the proceeding, the natural person consents to a 10 summary hearing and the court proceeds under section 82 to hear and determine the charge in the absence of the body corporate. 30 Procedure for indictable offences that may be heard and determined summarily 15 (1) The informant or the accused may apply for a summary hearing under section 29(1). (2) Without any application under subsection (1), the Magistrates' Court may offer a summary hearing under section 29(1). 20 (3) An application for, or an offer of, a summary hearing may be made at any time before the Magistrates' Court determines whether to commit the accused for trial. Note 25 Section 6(4) provides that an informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily. (4) If an application for a summary hearing is made 30 before the hearing of any evidence, the Magistrates' Court may seek from the prosecutor or, if the informant is appearing in person, the informant and he or she must give-- (a) an outline of the evidence which will be 35 presented for the prosecution; and 561013B.I-3/12/2008 32 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 30 (b) any other information which the court considers relevant-- for the purpose of enabling the court to determine whether to grant a summary hearing. 5 (5) Any statement made by the prosecutor or informant under subsection (4) is not admissible in evidence in any subsequent proceeding in respect of the charge. (6) If the Magistrates' Court grants a summary 10 hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3. Note Sections 112A to 113D of the Sentencing Act 1991 provide 15 for maximum penalties in the Magistrates' Court. (7) Subject to subsection (8), if-- (a) a committal hearing commences; and (b) the Magistrates' Court subsequently grants a summary hearing-- 20 the court may, with the consent of the accused, admit as evidence in the summary hearing-- (c) the oral evidence of any witness; and (d) the statement of any witness; and (e) any document or exhibit-- 25 given or tendered during the committal hearing. (8) If evidence is admitted under subsection (7)-- (a) the Magistrates' Court must, at the request of the informant or the accused, call or recall (as the case requires) any witness for 30 examination or cross-examination; and 561013B.I-3/12/2008 33 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.1--When a Summary Hearing May Be Held s. 30 (b) the hearing must otherwise be conducted in the same manner as a proceeding for a summary offence. __________________ 561013B.I-3/12/2008 34 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 31 PART 3.2--PROCEDURE BEFORE SUMMARY HEARING Division 1--General 31 Court may change place of hearing If the Magistrates' Court considers that-- 5 (a) a fair hearing in a criminal proceeding cannot otherwise be had; or (b) for any other reason it is appropriate to do so-- the court may order that the hearing be held at 10 another place or venue of the court that the court considers appropriate. 32 Accused entitled to copy of charge-sheet and particulars (1) An accused is entitled to receive free of charge a 15 copy of the charge-sheet from the informant or the appropriate registrar. (2) An accused is entitled to receive from the informant reasonable particulars of the charge. 33 Unrepresented accused who requires legal advice 20 If-- (a) an accused is charged with an offence punishable by imprisonment; and (b) the accused is unrepresented on the return date-- 25 the court must-- (c) ask the accused whether the accused has sought legal advice; and 561013B.I-3/12/2008 35 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 34 (d) if satisfied that the accused has not had a reasonable opportunity to obtain legal advice, grant an adjournment if so requested by the accused; and 5 (e) inform the accused that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978. 34 Return of property (1) If-- 10 (a) property has been taken from an accused; and (b) the Magistrates' Court considers that the property or part of it can be returned consistently with the interests of justice and 15 with the safe custody of the accused-- the court must direct that the property or part of it be returned to the accused or to any other person that the accused directs. (2) If property has been taken from a person other 20 than the accused, the Magistrates' Court, on application by the person, may direct that the property be returned to the person at any time, and subject to any condition, that the court considers appropriate. 25 Division 2--Pre-hearing disclosure of prosecution case 35 When preliminary brief is to be served (1) If required to do so by section 24, the informant must serve a preliminary brief on the accused. (2) At any time after the commencement of a 30 proceeding, the accused, by written notice to the informant, may request that a preliminary brief be served. 561013B.I-3/12/2008 36 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 36 (3) If the accused gives notice under subsection (2), the informant must serve on the accused a preliminary brief within 14 days after receipt of the notice. 5 (4) Nothing in this section prevents the informant from serving a preliminary brief on the accused at any other time. 36 How preliminary brief must be served (1) A preliminary brief must be served personally on 10 the accused in accordance with section 339 unless the informant is satisfied that ordinary service is appropriate in all the circumstances. Note Section 342 provides for ordinary service. 15 (2) In considering whether to effect service of a preliminary brief by ordinary service, the informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant 20 including-- (a) the nature and gravity of the alleged offence; (b) whether the accused has previously been found guilty or convicted of any similar offence; 25 (c) the period of time that has elapsed since the accused's address for service was ascertained; (d) the manner of service of the summons to answer to the charge. 561013B.I-3/12/2008 37 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 37 37 Contents of preliminary brief (1) A preliminary brief must include-- (a) a copy of the charge-sheet in respect of the alleged offence; and 5 (b) a notice in the form prescribed by the rules of court-- (i) explaining this section and section 84; and (ii) explaining the importance of the 10 accused obtaining legal representation; and (iii) advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and 15 (iv) providing details of how to contact Victoria Legal Aid; and (c) a statement made by the informant personally that complies with subsection (2) and section 38; and 20 (d) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and (e) a copy of the criminal record of the accused 25 that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions known at that time; and 561013B.I-3/12/2008 38 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 37 (f) if the informant refuses to disclose any information, document or thing that is required to be included in the preliminary brief, a written notice that the informant 5 refuses disclosure under section 45, identifying the ground for refusing disclosure; and (g) a list of any other orders that are or will be sought, as known at the time of preparation 10 of the preliminary brief. (2) A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and 15 must include-- (a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and 20 (b) a description of the background to and consequences of the alleged offence, if known; and (c) a summary of any statements made by the accused concerning the alleged offence, 25 including any confession or admission; and (d) a list of the names of all persons who, at the time the statement is signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether 30 those persons have made statements; and (e) a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at the time the statement is signed. 561013B.I-3/12/2008 39 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 38 (3) A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused 5 that is available to the prosecution. Example Statements of key witnesses may be included in the preliminary brief. Notes 10 1 If the Magistrates' Court hears and determines a charge in the absence of the accused, section 84 provides that certain documents in a preliminary brief served on the accused at least 14 days before the hearing date are admissible in evidence. 15 2 See section 86 as to proof of criminal record in the absence of the accused. 38 Requirements for informant's statement in preliminary brief (1) A statement by the informant in a preliminary 20 brief must be-- (a) in the form of an affidavit; or (b) signed by the informant and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the 25 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; or (c) in a form, and attested to in a manner, 30 prescribed by the rules of court. 561013B.I-3/12/2008 40 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 39 (2) An informant who acknowledges a statement referred to in subsection (1) which the informant knows at the time to be false is liable to the penalties of perjury. 5 Note See section 314 of the Crimes Act 1958 for the offence of perjury. 39 When full brief must be served (1) At any time after a criminal proceeding has 10 commenced or, if a preliminary brief is served under section 24, at any time after a summary case conference is held, the accused, by written notice to the informant, may request that a full brief be served. 15 Note Section 54 provides for summary case conferences. (2) If the accused gives a notice under subsection (1), the informant must serve a full brief on the accused at least 14 days before-- 20 (a) the contest mention hearing; or (b) if a contest mention hearing is not held, the summary hearing. (3) The Magistrates' Court, by order, may vary the date for service of a full brief to a specified date 25 that is earlier or later than the date for service required by subsection (2). (4) Nothing in this section prevents agreement between the informant and the accused to more limited disclosure than is required in a full brief. 561013B.I-3/12/2008 41 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 40 40 How full brief must be served (1) A full brief must be served personally on the accused in accordance with section 339 unless the informant is satisfied that ordinary service is 5 appropriate in all the circumstances. Note Section 342 provides for ordinary service. (2) In considering whether to effect service of a full brief by ordinary service, the informant must 10 consider whether it is an appropriate method of service in all the circumstances as known by the informant including-- (a) the nature and gravity of the alleged offence; (b) whether the accused has previously been 15 found guilty or convicted of any similar offence; (c) the period of time that has elapsed since the accused's address for service was ascertained; 20 (d) the manner of service of the summons to answer to the charge. 41 Contents of full brief (1) Unless earlier disclosed to the accused, whether in a preliminary brief, at a summary case conference 25 or otherwise, a full brief must contain-- (a) a notice in the form prescribed by the rules of court-- (i) explaining this section and section 83; and 561013B.I-3/12/2008 42 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 41 (ii) explaining the importance of the accused obtaining legal representation; and (iii) advising that the accused has the right, 5 if eligible, to legal aid under the Legal Aid Act 1978; and (iv) providing details of how to contact Victoria Legal Aid; and (b) a copy of the charge-sheet relating to the 10 alleged offence; and (c) a copy of the criminal record of the accused or a statement that the accused has no previous convictions; and (d) any information, document or thing on which 15 the prosecution intends to rely at the hearing of the charge including-- (i) a copy of any statement relevant to the charge signed by the accused, or a record of interview of the accused, that 20 is in the possession of the informant; and (ii) a copy, or a transcript, of any audio- recording or audiovisual recording required to be made under Subdivision 25 (30A) of Division 1 of Part III of the Crimes Act 1958; and (iii) a copy or statement of any other evidentiary material that is in the possession of the informant relating to a 30 confession or admission made by the accused relevant to the charge. 561013B.I-3/12/2008 43 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 41 (iv) a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons; 5 and Note See section 47 for requirements for statements. (v) a legible copy of any document which the prosecution intends to produce as 10 evidence; and (vi) a list of any things the prosecution intends to tender as exhibits; and (vii) a clear photograph, or a clear copy of such a photograph, of any proposed 15 exhibit that cannot be described in detail in the list; and (viii) a description of any forensic procedure, examination or test that has not yet been completed and on which the 20 prosecution intends to rely as tending to establish the guilt of the accused; and (ix) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence; and 25 (e) any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence including-- (i) a list of the persons (including experts) who have made statements or given 30 information relevant to the alleged offence but who the prosecution does not intend to call as witnesses at the hearing; and 561013B.I-3/12/2008 44 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 41 (ii) a copy of every statement referred to in subparagraph (i) made by each of those persons or, if the person has not made a statement, a written summary of the 5 substance of any evidence likely to be given by that person or a list of those statements or written summaries; and (iii) a copy of every document relevant to the alleged offence that the prosecution 10 does not intend to tender as an exhibit at the hearing or a list of those documents; and (iv) a list containing descriptions of any things relevant to the alleged offence 15 that the prosecution does not intend to tender as exhibits at the hearing; and (v) a clear photograph, or a clear copy of such a photograph, of any thing relevant to the alleged offence that 20 cannot be described in detail in the list; and (vi) a copy of-- (A) records of any medical examination of the accused; and 25 (B) reports of any forensic procedure or forensic examination conducted on the accused; and (C) the results of any tests-- carried out on behalf of the prosecution 30 and relevant to the alleged offence but on which the prosecution does not intend to rely; and 561013B.I-3/12/2008 45 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 42 (vii) a copy of any other information, document or thing required by the rules of court to be included in a full brief; and 5 (f) if the informant refuses to disclose any information, document or thing that is required to be included in the full brief, a written notice that the informant refuses disclosure under section 45, identifying the 10 ground for refusing disclosure. (2) Section 48 applies to information and other material supplied in a full brief. Notes 1 See section 363 as to the prosecution's general obligation of 15 disclosure. 2 Section 39(4) enables an informant and an accused to agree to the provision of less material in the full brief than is required by section 41. 3 If the Magistrates' Court hears and determines a charge in the 20 absence of the accused, section 83 provides that certain documents in a full brief served on the accused are admissible in evidence. 4 See section 86 as to proof of criminal record in the absence of the accused. 25 42 Continuing obligation of disclosure (1) This section applies to any information, document or thing that-- (a) comes into the informant's possession or comes to the informant's notice after the 30 service of a preliminary brief or a full brief, as the case may be; and (b) would have been required to be listed, or a copy of which would have been required to be served, in the preliminary brief or the full 35 brief. 561013B.I-3/12/2008 46 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 43 (2) The informant must serve on the accused a copy of the document or list as soon as practicable after the information, document or thing comes into the informant's possession or comes to the informant's 5 notice. (3) If the informant refuses to disclose any information, document or thing that is required to be disclosed under this section, the informant must serve on the accused as soon as practicable a 10 written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure. Note See section 363 as to the prosecution's general obligation of 15 disclosure. 43 Accused may make request for material etc. not provided (1) The accused may give to the informant a written request for-- 20 (a) a copy of any statements made or information given by persons listed in a full brief; (b) a copy of any things listed in a full brief; (c) inspection of the exhibits at a time and place 25 agreed between the accused and the informant; (d) a copy of any information, document or thing specified by the accused that is required by or under this Act to be included 30 in a preliminary brief or a full brief, as the case may be, and was not so included; (e) particulars of previous convictions of any witness who the prosecution intends to call at the hearing. 561013B.I-3/12/2008 47 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 44 (2) Subject to subsection (3), a request under subsection (1) may be made at any time after service of the preliminary brief or the full brief, whichever first occurs. 5 (3) Unless the Magistrates' Court otherwise orders, a request under subsection (1) must be made at least 7 days before-- (a) the contest mention hearing; or (b) if a contest mention hearing is not held, the 10 summary hearing. 44 Informant must comply with request or state grounds of refusal (1) Within 7 days after the informant receives a request under section 43, the informant must 15 comply with the request or serve on the accused a written notice that the informant refuses to comply with the request, identifying the grounds for refusing disclosure. (2) The Magistrates' Court may vary a time limit 20 referred to in this section. 45 Grounds on which informant may refuse disclosure (1) The informant may refuse to disclose any information, document or thing that is required by this Division to be disclosed to the accused if the 25 informant considers that disclosure would, or would be reasonably likely to-- (a) prejudice the investigation of a contravention or possible contravention of the law or prejudice the enforcement or proper 30 administration of the law in a particular instance; or 561013B.I-3/12/2008 48 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 45 (b) prejudice the fair hearing of the charge against a person or the impartial adjudication of a particular case; or (c) disclose, or enable a person to ascertain, the 5 identity of a confidential source of information in relation to the enforcement or administration of the law; or (d) disclose methods or procedures for preventing, detecting, investigating or 10 dealing with matters arising out of contraventions or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or 15 procedures; or (e) endanger the lives or physical safety of persons engaged in, or in connection with, law enforcement or persons who have provided confidential information in relation 20 to the enforcement or administration of the law; or (f) endanger the life or physical safety of a person referred to in section 43(1)(a) or of a family member, as defined in the Family 25 Violence Protection Act 2008, of such a person. (2) The informant may refuse to disclose any information, document or thing that is requested under section 43(1)(d) on any ground on which 30 the informant would be entitled to refuse to produce the information, document or thing under a witness summons. 561013B.I-3/12/2008 49 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 46 (3) The informant may refuse to disclose the particulars of any previous conviction of any witness who the informant intends to call at the hearing if the previous conviction is, because of 5 its character, irrelevant to the proceeding but the informant must advise the accused of the existence of any undisclosed previous convictions. Notes 1 See section 14 of the Victims' Charter Act 2006 as to 10 victims' privacy. 2 See section 363 as to the prosecution's general obligation of disclosure. 46 Accused may apply for order requiring disclosure (1) The accused may apply to the Magistrates' Court 15 for an order under subsection (2) requiring disclosure if-- (a) the informant has served on the accused under section 45 a statement of grounds for refusing disclosure; or 20 (b) the informant has failed to give disclosure in accordance with this Division. (2) On application under subsection (1), the Magistrates' Court may order that the informant disclose to the accused any information, document 25 or thing in accordance with a request under section 43 or a requirement of this Division. 47 Rules with respect to statements (1) Subject to subsection (5), a statement referred to in section 41 which the informant intends to 30 tender at the hearing of the charge if the accused does not appear must be-- (a) in the form of an affidavit; or 561013B.I-3/12/2008 50 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 47 (b) signed by the person making the statement and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and 5 correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or (c) in a form, and attested to in a manner, 10 prescribed by the rules of court. (2) If a person under the age of 18 years makes a statement which the informant intends to tender as mentioned in subsection (1), the statement must include the person's age. 15 (3) If a person who cannot read makes a statement which the informant intends to tender as mentioned in subsection (1)-- (a) the statement must be read to the person before he or she signs it; and 20 (b) the acknowledgment must state that the statement was read to the person before he or she signed it. (4) A person who acknowledges a statement which the informant intends to tender as mentioned in 25 subsection (1) and which the person knows at the time to be false is liable to the penalties of perjury. Note See section 314 of the Crimes Act 1958 for the offence of perjury. 561013B.I-3/12/2008 51 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 48 48 Disclosure of address or telephone number of witness (1) The informant must not disclose the address or telephone number (including a private, business or 5 official address or telephone number) of any person in any information, document or thing provided to the accused under this Division unless-- (a) the informant believes that-- 10 (i) the information, document or thing does not identify the address or telephone number as that of any particular person; or (ii) the address or telephone number is 15 relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or 20 (b) the Magistrates' Court permits the disclosure in accordance with subsection (3) on application made by the informant or the accused. (2) For the purposes of subsection (1), the informant 25 may delete, or render illegible, an address or telephone number included in the information, document or thing before service on the accused. (3) The Magistrates' Court may grant an application made under subsection (1)(b) if the court is 30 satisfied that-- (a) the address or telephone number is relevant to the offence charged; and 561013B.I-3/12/2008 52 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 49 (b) one of the following applies-- (i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any 5 person; or (ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i). 10 (4) For the purposes of subsection (3)(b)(ii), the Magistrates' Court must have regard to-- (a) the right to privacy of the witness; and (b) the right of the accused to prepare properly for the hearing. 15 Note See section 14 of the Victims' Charter Act 2006 as to victims' privacy. 49 Informant may place material on database (1) This section applies if-- 20 (a) the informant is a member of the police force or an officer of a prescribed agency; and (b) the accused's legal practitioner is authorised by the Secretary to the Department of Justice to access electronically the information, 25 documents and things referred to in section 43; and (c) it is practicable to transmit electronically the information, documents and things that are required to be disclosed. 30 (2) Subject to this Division, the informant must place on the prescribed database a copy of-- (a) the preliminary brief, if any; and (b) the full brief; and 561013B.I-3/12/2008 53 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 49 (c) all additional information, documents and things, if any, requested by the accused under section 43; and (d) all additional information, documents and 5 things required to be disclosed under section 42. (3) Placement of copies of material on the prescribed database under subsection (2) is deemed to be service for the purposes of this Division. 10 Note Time limits provided in this Division for service of a preliminary brief, a full brief or particular information, documents or things still apply. (4) A statement by the informant in a copy of a 15 preliminary brief placed on the prescribed database need not be sworn or attested as required by section 38 if-- (a) the database technology does not permit placement of the copy in that form; and 20 (b) a physical copy of the preliminary brief complies with section 38. (5) An informant who places an unsworn or unattested preliminary brief on the prescribed database must retain the physical copy of the 25 preliminary brief that is sworn or attested for a period of 12 months after the determination of the charge. Note Section 38(2) provides that an informant who acknowledges 30 a statement in a preliminary brief which the informant knows at the time to be false is liable to the penalties of perjury. 561013B.I-3/12/2008 54 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 50 Division 3--Preliminary disclosure of case of accused 50 Expert evidence (1) If the accused intends to call a person as an expert witness at the hearing of the charge, the accused 5 must serve on the informant in accordance with section 340 and file in court a copy of the statement of the expert witness in accordance with subsection (2)-- (a) at least 7 days before the day on which the 10 contest mention hearing is to be held; or (b) if there is no contest mention hearing, at least 7 days before the summary hearing; or (c) if the statement is not then in existence, as soon as possible after it comes into 15 existence. (2) The statement must-- (a) contain the name and business address of the witness; and (b) describe the qualifications of the witness to 20 give evidence as an expert; and (c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances 25 on which the opinion is formed. Note Section 177 of the Evidence Act 2008 provides for certificates of expert evidence. 51 Alibi evidence 30 (1) This section applies to an accused on a summary hearing, if the accused is represented by a legal practitioner. 561013B.I-3/12/2008 55 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 51 (2) An accused must not, without leave of the court-- (a) give evidence personally; or (b) adduce evidence from another witness-- in support of an alibi unless the accused has given 5 notice of alibi within the period referred to in subsection (3). (3) A notice of alibi is given by serving the notice on the prosecutor or the informant-- (a) at least 7 days before the day on which the 10 contest mention hearing is to be held; or (b) if there is no contest mention hearing, at least 7 days before the summary hearing; or (c) if the notice is not then in existence, as soon as possible after it comes into existence. 15 (4) A notice of alibi must be served in accordance with section 340. (5) A notice of alibi must contain-- (a) particulars as to time and place of the alibi; and 20 (b) the name and last known address of any witness to the alibi; and (c) if the name and address of a witness are not known, any information which might be of material assistance in finding the witness. 25 (6) If the name and address of a witness are not included in a notice of alibi, the accused must not call that person to give evidence in support of the alibi unless the court is satisfied that the accused took reasonable steps to ensure that the name and 30 address would be ascertained. 561013B.I-3/12/2008 56 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 52 (7) If the accused is notified by the informant that a witness named or referred to in a notice of alibi has not been traced, the accused must give written notice to the informant, without delay, of any 5 further information which might be of material assistance in finding the witness. (8) The court must not refuse leave under subsection (2) if it appears to the court that the accused was not informed of the requirements of 10 this section. (9) If-- (a) an accused gives notice of alibi under this section; and (b) the prosecutor requests an adjournment-- 15 the court must grant an adjournment for a period that appears to the court to be necessary to enable investigation of the alibi unless it appears that to do so would prejudice the proper presentation of the case of the accused. 20 52 Offence to communicate with alibi witness (1) If a person (other than a person referred to in subsection (2)) has been named or referred to as a proposed witness in a notice of alibi given under section 51-- 25 (a) a person acting for the prosecution; or (b) a member of the police force-- must not communicate with that person directly or indirectly with respect to the charge or any related matter before the conclusion of the proceeding, 30 including any rehearing, without the consent and presence during the communication of-- (c) the legal practitioner representing the accused; or 561013B.I-3/12/2008 57 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 53 (d) if not legally represented, the accused. Penalty: Level 8 imprisonment (1 year maximum) (2) Subsection (1) does not apply to a person who the 5 accused has been notified may be called as a witness for the prosecution at the summary hearing. Division 4--Mention hearing and contest mention hearing 53 Mention hearing 10 At a mention hearing, the Magistrates' Court may-- (a) if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing; 15 (b) proceed immediately to hear and determine the charge; (c) fix a date for a contest mention hearing; (d) fix a date for a summary hearing of the charge; 20 (e) make any other order or give any direction that the court considers appropriate. 54 Summary case conference (1) A summary case conference is a conference between the prosecution and the accused for the 25 purpose of managing the progression of the case including-- (a) identifying and providing to the accused any information, document or thing in the possession of the prosecution that may assist 30 the accused to understand the evidence available to the prosecution; and (b) identifying any issues in dispute; and 561013B.I-3/12/2008 58 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 54 (c) identifying the steps required to advance the case; and (d) any other purpose prescribed by the rules of court. 5 (2) If a preliminary brief is served in accordance with section 24, a summary case conference must be conducted before-- (a) the charge is set down for a contest mention hearing or a summary hearing; or 10 (b) a request for a full brief is made under section 39(1). (3) The Magistrates' Court may direct the parties to attend a summary case conference. (4) Nothing in this section prevents a summary case 15 conference from being conducted at any other time, if the parties agree. (5) If an accused is not legally represented, a summary case conference must not be conducted unless the Magistrates' Court is satisfied that the 20 conference is appropriate, having regard to whether the accused has had a reasonable opportunity to obtain legal advice. (6) If the Magistrates' Court is not satisfied as required by subsection (5), the court may dispense 25 with the requirement under subsection (2) to conduct a summary case conference. (7) Evidence of-- (a) anything said or done in the course of a summary case conference; or 30 (b) any document prepared solely for the purposes of a summary case conference-- is not admissible in any proceeding before any court or tribunal or in any inquiry in which evidence is or may be given before any court or 561013B.I-3/12/2008 59 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 55 person acting judicially, unless all parties to the summary case conference agree to the giving of the evidence. 55 Contest mention hearing 5 (1) This section applies to a proceeding for-- (a) a summary offence; or (b) an indictable offence that may be heard and determined summarily. (2) The Magistrates' Court may, between the return 10 date and the day on which the charge is heard, from time to time conduct a contest mention hearing. (3) At a contest mention hearing, the Magistrates' Court may-- 15 (a) require the parties to provide an estimate of the time expected to be needed for the hearing of the charge; (b) require the parties to advise as to the estimated number and the availability of 20 witnesses (other than the accused) for the hearing of the charge and whether any witnesses are from interstate or overseas; (c) request each party to indicate the evidence that party proposes to adduce and to identify 25 the issues in dispute; (d) require the accused to advise whether the accused is legally represented and has funding for continued legal representation up to and including the hearing of the charge; 30 (e) require the parties to advise whether there are any particular requirements of, or facilities needed for, witnesses and interpreters; 561013B.I-3/12/2008 60 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.2--Procedure before Summary Hearing s. 55 (f) order a party to make, file in court or serve (as the case requires) any written or oral material required by the court for the purposes of the proceeding; 5 (g) allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding; (h) if the court considers that it is in the interests of justice to do so, dispense with or vary any 10 requirement imposed on a party by or under this Part; (i) require or request a party to do anything else for the case management of the proceeding. (4) The accused must attend all contest mention 15 hearings. Notes 1 Section 3 defines attend as to be physically present in court. 2 See section 334 in relation to a corporate accused. 20 3 Section 330 gives the court power to excuse an accused from attending a hearing. __________________ 561013B.I-3/12/2008 61 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 56 PART 3.3--SUMMARY HEARING Division 1--Joint or separate hearing of charges 56 Multiple charges on single charge-sheet or multiple accused named on single charge-sheet 5 (1) If a charge-sheet contains more than one charge, the charges must be heard together unless an order is made under section 58. (2) If a charge-sheet names more than one accused, whether in the same charge or separate charges, 10 the charge or charges against all accused must be heard together unless an order is made under section 58. (3) A separate charge-sheet must be filed against each accused. 15 57 Joint hearing of charges on separate charge-sheets On the application of the prosecutor or the accused, the Magistrates' Court may order that any number of charges in separate charge-sheets be heard together. 20 58 Order for separate hearing (1) If a charge-sheet contains more than one charge, the Magistrates' Court may order that any one or more of the charges be heard separately. (2) If a charge-sheet names more than one accused, 25 the Magistrates' Court may order that charges against a specified accused be heard separately. (3) The Magistrates' Court may make an order under subsection (1) or (2) if the court considers that-- (a) the case of an accused may be prejudiced 30 because the accused is charged with more than one offence in the same charge-sheet; or 561013B.I-3/12/2008 62 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 59 (b) a hearing with co-accused would prejudice the fair hearing of the charge against the accused; or (c) for any other reason it is appropriate to do 5 so. (4) The Magistrates' Court may make an order under subsection (1) or (2) before or during the hearing. (5) If the Magistrates' Court makes an order under subsection (1) or (2), the prosecutor may elect 10 which charge is to be heard first. (6) The procedure on the separate hearing of a charge is the same in all respects as if the charge had been set out in a separate charge-sheet. (7) If the Magistrates' Court makes an order for a 15 separate hearing under subsection (1) or (2), the court may make any order for or in relation to the bail of the accused that the court considers appropriate. Division 2--Diversion program 20 59 Adjournment to undertake diversion program (1) This section does not apply to-- (a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or 25 permit to drive a motor vehicle but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or (b) an offence against section 49(1) of the Road 30 Safety Act 1986 not referred to in paragraph (a). 561013B.I-3/12/2008 63 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 59 (2) If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily-- 5 (a) the accused acknowledges to the Magistrates' Court responsibility for the offence; and (b) it appears appropriate to the Magistrates' Court, which may inform itself in any way it considers appropriate, that the accused 10 should participate in a diversion program; and (c) both the prosecution and the accused consent to the Magistrates' Court adjourning the proceeding for this purpose-- 15 the Magistrates' Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program. (3) An accused's acknowledgment to the Magistrates' 20 Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea. (4) If an accused completes a diversion program to the satisfaction of the Magistrates' Court-- 25 (a) no plea to the charge is to be taken; and (b) the Magistrates' Court must discharge the accused without any finding of guilt; and (c) the fact of participation in the diversion program is not to be treated as a finding of 30 guilt except for the purposes of-- (i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and 561013B.I-3/12/2008 64 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 60 (ii) section 9 of the Control of Weapons Act 1990; and (iii) section 151 of the Firearms Act 1996; and 5 (iv) Part 4 of the Sentencing Act 1991; and (d) the fact of participation in the diversion program and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the 10 same circumstances. (5) If an accused does not complete a diversion program to the satisfaction of the Magistrates' Court and the accused is subsequently found guilty of the charge, the Magistrates' Court must 15 take into account the extent to which the accused complied with the diversion program when sentencing the accused. (6) Nothing in this section affects the requirement to observe the rules of natural justice. 20 (7) This section does not affect the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act. Division 3--Sentence indication 60 Court may give sentence indication 25 At any time during a proceeding for a summary offence or an indictable offence that may be heard and determined summarily, the Magistrates' Court may indicate that, if the accused pleads guilty to the charge for the offence at that time, the court 30 would be likely to impose on the accused-- (a) a sentence of imprisonment that commences immediately; or 561013B.I-3/12/2008 65 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 61 (b) a sentence of a specified type. Note Section 126 of the Magistrates' Court Act 1989 enables the court to close a proceeding to the public. 5 61 Effect of sentence indication (1) If-- (a) the Magistrates' Court gives a sentence indication under section 60; and (b) the accused pleads guilty to the charge for 10 the offence at the first available opportunity-- the court, when sentencing the accused for the offence, must not impose a more severe type of sentence than the type of sentence indicated. 15 (2) If-- (a) the Magistrates' Court gives a sentence indication under section 60; and (b) the accused does not plead guilty to the charge for the offence at the first available 20 opportunity-- the court that hears and determines the charge must be constituted by a different magistrate, unless all the parties otherwise agree. (3) A sentence indication does not bind the 25 Magistrates' Court on any hearing before the court constituted by a different magistrate. (4) A decision to give or not to give a sentence indication is final and conclusive. (5) An application for a sentence indication and the 30 determination of the application are not admissible in evidence against the accused in any proceeding. 561013B.I-3/12/2008 66 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 62 (6) This section does not affect any right to appeal against sentence. Division 4--Entering a plea 62 Charge to be read or explained to accused before 5 plea (1) Subject to subsection (2), the Magistrates' Court must ensure that any charge, as set out in the charge-sheet, is read to the accused or its substance is explained to the accused before the 10 accused is asked to plead to the charge. (2) It is not necessary that a charge be read, or its substance explained, to an accused who is represented by a legal practitioner if the Magistrates' Court considers it appropriate not to 15 do so. 63 Legal practitioner may enter plea on behalf of accused A legal practitioner appearing for an accused may, on behalf of the accused, enter a plea. 20 64 Refusal to plead (1) If, when an accused is asked to plead to a charge, the accused will not answer directly to the charge, the Magistrates' Court may order that a plea of not guilty be entered on behalf of the accused. 25 (2) A plea of not guilty entered under subsection (1) has the same effect as if the accused in fact had pleaded not guilty. Note See the Crimes (Mental Impairment and Unfitness to be Tried) 30 Act 1997 when an accused is or may be unfit to stand trial. 561013B.I-3/12/2008 67 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 65 Division 5--Opening addresses 65 Parties may give opening addresses (1) With the leave of the Magistrates' Court and before any evidence is given-- 5 (a) the prosecutor may give an opening address to the court on the prosecution case against the accused; and (b) the accused may give an opening address to the court in response to the prosecutor's 10 opening address. (2) The Magistrates' Court may limit the length of the opening addresses. Division 6--Case for the accused 66 Accused entitled to respond after close of 15 prosecution case After the close of the case for the prosecution, an accused is entitled-- (a) to make a submission that there is no case for the accused to answer; 20 (b) to answer the charge by choosing to give evidence or call other witnesses to give evidence or both; (c) not to give evidence or call any witnesses. 67 Election when accused is legally represented 25 If the accused is represented by a legal practitioner, at the close of the case for the prosecution, the Magistrates' Court may question the legal practitioner to determine which of the options referred to in section 66 the accused elects 30 to take. 561013B.I-3/12/2008 68 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 68 68 Election when accused is not legally represented (1) If the accused is not represented by a legal practitioner, immediately after the close of the case for the prosecution the Magistrates' Court 5 must inform the accused, in a manner that is likely to be understood by the accused that-- (a) the accused has the right to answer the charge and must choose either-- (i) to give sworn evidence, that is, to enter 10 the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge and then to respond to any questions from the prosecution or the court about 15 the evidence of the accused; or (ii) to say nothing in answer to the charge; and (b) in either case, the accused may call any witnesses to give sworn evidence for the 20 accused. (2) After giving the information referred to in subsection (1), the Magistrates' Court must ask the accused what the accused wants to do. 69 Procedure for joint hearings if no case submission 25 made (1) After the close of the case for the prosecution, an accused who wishes to make a submission that there is no case for the accused to answer must do so at that time. 30 (2) If, after the Magistrates' Court has ruled on all no case submissions, charges against 2 or more accused remain to be determined, each accused must advise the court, in response to questioning under section 67 or 68, which of the options 561013B.I-3/12/2008 69 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 70 referred to in section 66(b) or (c) the accused elects to take. 70 Questioning to determine proper course of proceeding 5 (1) If the accused intends to call witnesses to give evidence at the hearing, the accused must indicate, when called on by the Magistrates' Court to do so-- (a) the names of those witnesses (other than the 10 accused); and (b) the order in which those witnesses are to be called. (2) The accused must not present the case of the accused differently to the way indicated to the 15 Magistrates' Court under subsection (1) without the leave of the court. 71 Opening address of accused at beginning of case for the accused (1) If the accused intends to give evidence, or to call 20 other witnesses on behalf of the accused, or both, the Magistrates' Court may grant leave to the accused to open the case for the accused if the court considers it appropriate to do so. (2) If the accused gives an opening address, it must be 25 given before the accused gives evidence or calls any other witnesses. (3) The Magistrates' Court may limit the length of the opening address of the accused. (4) The accused is not required to give evidence 30 before any other witness is called on behalf of the accused. 561013B.I-3/12/2008 70 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 72 72 Evidential burden on accused for exceptions etc. (1) If-- (a) an Act or subordinate instrument creates an offence and provides any exception, 5 exemption, proviso, excuse or qualification, whether it does or does not accompany the description of the offence; and (b) the accused wishes to rely on the exception, exemption, proviso, excuse or 10 qualification-- the accused must present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception, exemption, proviso, excuse or 15 qualification. (2) No proof in relation to an exception, exemption, proviso, excuse or qualification is required on the part of the informant unless the accused has presented or pointed to evidence in accordance 20 with subsection (1). (3) If satisfied that it is in the interests of justice to do so the Magistrates' Court may allow the prosecutor to re-open the case for the prosecution in order to adduce evidence in rebuttal of evidence 25 presented or pointed to by the accused in accordance with subsection (1). Division 7--Closing addresses 73 Prosecutor's closing address (1) In a hearing under this Part-- 30 (a) after the close of all evidence; and 561013B.I-3/12/2008 71 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 74 (b) before the closing address of the accused, if any, under section 74-- the Magistrates' Court may grant leave, if it is appropriate to do so, to the prosecutor to address 5 the court for the purpose of summing up the evidence. (2) The Magistrates' Court may limit the length of the closing address of the prosecutor. 74 Closing address of the accused 10 (1) In a hearing under this Part-- (a) after the close of all evidence; and (b) after the closing address of the prosecutor, if any, under section 73-- the Magistrates' Court may grant leave, if it is 15 appropriate to do so, to the accused to address the court for the purpose of summing up the evidence. (2) The Magistrates' Court may limit the length of the closing address of the accused. 75 Supplementary address by prosecutor 20 (1) If, in the closing address of the accused under section 74, the accused asserts facts which are not supported by any evidence that is before the Magistrates' Court, the court may grant leave to the prosecutor to make a supplementary address to 25 the court. (2) A supplementary address must be confined to replying to the assertion referred to in subsection (1). (3) The Magistrates' Court may limit the length of a 30 supplementary address. 561013B.I-3/12/2008 72 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 76 Division 8--Determination of charge 76 Option of finding of attempt In a summary hearing under section 29(1) of a charge for an indictable offence, if the 5 Magistrates' Court finds the accused not guilty of the offence charged, the court may find the accused guilty of having attempted to commit the offence charged. Division 9--Criminal record 10 77 Criminal record (1) A criminal record must contain, in relation to each previous conviction-- (a) the date of the previous conviction; and (b) the court in which the previous conviction 15 took place; and (c) the place of sitting of that court; and (d) the offence committed; and (e) the sentence imposed. (2) If other offences were taken into account when a 20 sentence was imposed in respect of a previous conviction, a criminal record may contain a statement to that effect and the offences taken into account, including the number of offences. (3) A criminal record is inadmissible as evidence 25 against the person to whom it relates in a proceeding for an offence unless the criminal record is signed by-- (a) a member of the police force; or (b) a Crown Prosecutor; or 30 (c) a member of staff of the Office of Public Prosecutions who is a legal practitioner; or 561013B.I-3/12/2008 73 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 78 (d) in the case of a proceeding commenced by an informant-- (i) a person who is entitled to represent the informant and is a legal practitioner; or 5 (ii) a public official. 78 Proof of previous convictions by criminal record (1) If a person is found guilty of an offence in a summary hearing, the prosecution may provide to the court the criminal record, if any, of the person. 10 (2) The court must ask the person whether the person admits the previous convictions set out in the criminal record. (3) If the person admits to a previous conviction, the court may sentence the person accordingly. 15 (4) If the person does not admit to a previous conviction, the prosecution may lead evidence to prove the previous conviction. (5) A legal practitioner appearing for the person may, on behalf of the person, admit a previous 20 conviction set out in the criminal record. Notes 1 Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate. 25 2 Section 86 of this Act provides for proof of a criminal record in the absence of the accused. Division 10--Non-appearance of party 79 Non-appearance of informant If the informant in a criminal proceeding does not 30 appear on the date on which the proceeding is listed for hearing, the Magistrates' Court may-- (a) dismiss the charge; or 561013B.I-3/12/2008 74 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 80 (b) adjourn the proceeding on any terms that it considers appropriate. Note Section 328 sets out who may appear on behalf of an 5 informant. 80 Non-appearance of accused charged with summary offence (1) If an accused does not appear in answer to a summons to answer to a charge for a summary 10 offence, the Magistrates' Court may-- (a) if the summons was served in accordance with section 342 (ordinary service), direct that the accused be served personally with the summons; or 15 (b) issue a warrant to arrest the accused; or (c) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or (d) adjourn the proceeding on any terms that it 20 considers appropriate. Note Section 328 sets out who may appear on behalf of an accused. (2) If an accused has been charged with a summary 25 offence and fails to attend in answer to bail, the Magistrates' Court may-- (a) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or 30 (b) adjourn the proceeding on any terms that it considers appropriate-- without prejudice to any right of action arising out of the breach of the bail undertaking. 561013B.I-3/12/2008 75 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 81 (3) If the Magistrates' Court proceeds to hear and determine a charge under subsection (1)(c) or (2)(a), the court may dispense with or vary any requirement imposed by or under this Part. 5 Note See section 25 for consequences of failing to appear in answer to a notice to appear. 81 Non-appearance of accused charged with indictable offence 10 If an accused does not appear in answer to a summons to answer to a charge for an indictable offence which has been served in accordance with this Act, the Magistrates' Court may issue a warrant to arrest the accused. 15 Notes 1 Section 25 sets out the consequences of failing to appear in answer to a notice to appear. 2 Section 328 sets out who may appear on behalf of an accused. 82 Non-appearance of corporate accused charged with 20 indictable offence (1) If a corporate accused does not appear in answer to a summons to answer to a charge for an indictable offence that may be heard and determined summarily, the Magistrates' Court 25 may hear and determine the charge summarily in the absence of the accused if-- (a) the court is satisfied that the charge and the return date in relation to it have been brought to the notice of the accused; and 30 (b) the court considers that the charge is appropriate to be determined summarily-- even though the accused has not consented to a summary hearing. 561013B.I-3/12/2008 76 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 83 (2) If the Magistrates' Court proceeds to hear and determine a charge summarily in accordance with subsection (1), the court may dispense with or vary any requirement imposed by or under this 5 Part. (3) If the Magistrates' Court finds a corporate accused guilty in its absence, the court must cause written notice of any sentence imposed by it to be served on the accused. 10 83 Admissibility of evidence in absence of accused where full brief served (1) If-- (a) under section 80 the Magistrates' Court proceeds to hear and determine a charge in 15 the absence of the accused; and (b) the informant has served a full brief on the accused in accordance with Division 2 of Part 3.2-- the following are, subject to subsections (2) and 20 (3), admissible as if their contents were a record of evidence given orally-- (c) any statement a copy of which has been served in the full brief; (d) any exhibit or document referred to in a 25 statement which is admissible. (2) The Magistrates' Court may rule as inadmissible the whole or any part of a statement or of any exhibit or document referred to in a statement. (3) The criminal record of the accused or a statement 30 that the accused has no previous convictions, when served in a full brief, is only admissible for the purpose of sentencing in accordance with section 86. 561013B.I-3/12/2008 77 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 84 (4) Subsection (1) does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 80 on the basis of sworn evidence 5 given by or on behalf of the informant if the informant has not served a full brief on the accused. 84 Admissibility of evidence in absence of accused where preliminary brief served 10 (1) If-- (a) under section 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and (b) the informant has served a preliminary brief 15 on the accused in accordance with Division 2 of Part 3.2 at least 14 days before the date of the hearing under paragraph (a); and (c) the Magistrates' Court considers that the matters set out in the preliminary brief 20 disclose the offence charged-- the following are, subject to subsections (4) and (5), admissible in evidence, despite the rule against hearsay-- (d) the informant's statement in the preliminary 25 brief; (e) any exhibit referred to in the informant's statement. (2) Without limiting any other power conferred on the Magistrates' Court, if the court considers that the 30 matters set out in a preliminary brief do not disclose the offence charged, the court may require the informant to provide additional evidence. 561013B.I-3/12/2008 78 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 85 (3) The additional evidence referred to in subsection (2) is inadmissible unless-- (a) it is in the form of written statements that comply with section 38; and 5 (b) a copy of each statement has been served on the accused at least 14 days before the Magistrates' Court considers the additional evidence. (4) The Magistrates' Court may rule as inadmissible 10 the whole or any part of a preliminary brief, a statement or an exhibit. (5) The criminal record of the accused or a statement that the accused has no previous convictions, when served in a preliminary brief, is only 15 admissible for the purpose of sentencing in accordance with section 86. (6) This section does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused 20 under section 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a preliminary brief on the accused. 85 Non-appearance of accused--Infringements 25 Act 2006 (1) This section applies to a lodgeable infringement offence within the meaning of the Infringements Act 2006 in respect of which-- (a) an election to have the matter of the offence 30 heard and determined in the Magistrates' Court under Part 2 or Part 4 of that Act has been made; or (b) an order under section 72(1) of that Act has been made. 561013B.I-3/12/2008 79 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 86 (2) Without limiting any other power of the Magistrates' Court, if the accused fails to appear and the Magistrates' Court proceeds to hear and determine the charge in the absence of the accused 5 under section 80, the court may hear and determine the charge based on the prescribed information lodged under section 40(1)(a) or 71(1)(a) of that Act (as the case requires). 86 Proof of criminal record in absence of accused 10 (1) If-- (a) an accused is charged with a summary offence; and (b) it is alleged that the accused has previous convictions-- 15 there may be served on the accused a copy of the criminal record of the accused. Notes 1 See section 77 as to contents of a criminal record. 2 A copy of the criminal record of the accused is 20 included in the preliminary brief (section 37) or, if a preliminary brief is not served, in the full brief (section 41). (2) If the Magistrates' Court-- (a) finds the accused guilty in the absence of the 25 accused; and (b) is satisfied that a copy of the criminal record of the accused was served on the accused at least 14 days before the hearing of the charge-- 30 the criminal record is admissible only for the purpose of sentencing and-- (c) is evidence that the accused has the previous convictions set out in the criminal record; and 561013B.I-3/12/2008 80 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 87 (d) is evidence of the particulars set out in the criminal record. 87 Limitations on sentencing in absence of accused (1) If the Magistrates' Court proceeds to hear and 5 determine a charge in the absence of the accused and finds the accused guilty, the court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991. (2) If the Magistrates' Court finds an accused guilty in 10 the absence of the accused on the basis of a preliminary brief-- (a) the court must not make an order under Division 4 of Part 3 of the Sentencing Act 1991 for a fine exceeding 20 penalty units 15 and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and (b) the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or 20 compensation must not exceed $2000. Note In addition to this section, the court cannot make an order that requires the consent of the accused to its making, for example, a community-based order. 25 (3) If, at any time during the hearing, the Magistrates' Court considers that the charge, if proven, is likely to result in an order prohibited by subsection (1) or (2) or an order that requires the consent of the accused, the court-- 30 (a) must adjourn the proceeding to enable the accused to attend or to be brought before the court to answer to the charge; and (b) may issue a warrant to arrest the accused. 561013B.I-3/12/2008 81 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.3--Summary Hearing s. 87 (4) If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person 5 on the register kept under section 18 of the Magistrates' Court Act 1989, of-- (a) the order of the court; and (b) their right to apply for a rehearing of the charge. 10 Note Part 3.4 provides for a rehearing in certain circumstances. In particular, section 94 provides for automatic rehearing in certain cases. __________________ 561013B.I-3/12/2008 82 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.4--Rehearing s. 88 PART 3.4--REHEARING 88 Right to apply for rehearing If a sentence is imposed by the Magistrates' Court in a criminal proceeding on a person who did not 5 appear in the proceeding, that person, or the informant on that person's behalf, may apply to the Magistrates' Court for an order that the charge be reheard. 89 Notice of intention to apply for rehearing 10 A notice of intention to apply for a rehearing must-- (a) state the reason why the person on whom the sentence was imposed did not appear in the proceeding; and 15 (b) be filed with the registrar at the venue of the Magistrates' Court at which the sentence was imposed. 90 Service of notice (1) If the applicant is the person on whom the 20 sentence was imposed, the applicant must serve on the respondent in accordance with section 340 a copy of the notice under section 89 within 7 days after filing the notice. (2) If the informant makes an application for a 25 rehearing on behalf of the person on whom the sentence was imposed, the informant must serve personally on that person in accordance with section 339 a copy of the notice under section 89 within 7 days after filing the notice. 561013B.I-3/12/2008 83 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.4--Rehearing s. 91 91 Stay of sentence etc. (1) On the filing of a notice under section 89, the sentence (other than an order for the cancellation, suspension or variation of the driver licence of the 5 person on whom the sentence was imposed) is stayed until-- (a) the application for rehearing has been heard; and (b) if a rehearing is granted, the charge has been 10 reheard. (2) If the driver licence of the person on whom the sentence was imposed has been cancelled, suspended or varied by order of the Magistrates' Court, the applicant may, on or after the filing of a 15 notice under section 89, apply for a stay of the order pending the determination of the rehearing. (3) An applicant under subsection (2) (other than an informant who is making the application on behalf of the person whose driver licence has been 20 cancelled, suspended or varied) must serve on the informant in accordance with section 340 written notice of the application at least 7 days before making the application. (4) On an application under subsection (2), the 25 Magistrates' Court may order that the order for the cancellation, suspension or variation of the person's driver licence be stayed until-- (a) the application for rehearing has been heard; and 30 (b) if a rehearing is granted, the charge has been reheard. 561013B.I-3/12/2008 84 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 3.4--Rehearing s. 92 92 Court may order rehearing On an application under section 88, the Magistrates' Court may set aside any findings and orders made in the earlier proceeding subject to 5 any terms and conditions that it thinks just and rehear the charge. 93 Failure to appear on application If an applicant fails to appear at the time fixed for the hearing of an application under section 88 and 10 the application is struck out, the applicant may reapply under that section only if the applicant first obtains the leave of the Magistrates' Court. 94 Automatic rehearing in certain cases (1) On an application under section 88, if-- 15 (a) the charge-sheet was served in accordance with section 342 (ordinary service); and (b) the Magistrates' Court is satisfied that the charge-sheet was not brought to the notice of the applicant prior to the hearing of the 20 charge-- the court must set aside any findings and orders made in the earlier proceeding and rehear the charge. (2) If a person is served with a notice under 25 section 87(4) and applies under section 88 for a rehearing of the charge within 28 days after the date of service of the notice, the Magistrates' Court must set aside the findings and orders made in the earlier proceeding and rehear the charge. 30 Note Chapter 8 contains general provisions that apply to all criminal proceedings. __________________ 561013B.I-3/12/2008 85 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.1--Preliminary s. 95 CHAPTER 4--COMMITTAL PROCEEDING PART 4.1--PRELIMINARY 95 Definition In this Chapter-- 5 the registrar means the registrar at the venue of the Magistrates' Court at which a committal proceeding is, or is to be, held. 96 When a committal proceeding must be held A committal proceeding must be held in all cases 10 in which the accused is charged with an indictable offence, except cases where-- (a) a direct indictment is filed; or (b) the charge is heard and determined summarily. 15 97 Purposes of a committal proceeding The purposes of a committal proceeding are-- (a) to determine whether a charge for an offence is appropriate to be heard and determined summarily; 20 (b) to determine whether there is evidence of sufficient weight to support a conviction for the offence charged; (c) to determine how the accused proposes to plead to the charge; 25 (d) to ensure a fair trial, if the matter proceeds to trial, by-- (i) ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions; 561013B.I-3/12/2008 86 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.1--Preliminary s. 98 (ii) enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses; (iii) enabling the accused to put forward a 5 case at an early stage if the accused wishes to do so; (iv) enabling the accused to adequately prepare and present a case; (v) enabling the issues in contention to be 10 adequately defined. 98 When a committal proceeding commences A committal proceeding commences on the commencement of a filing hearing. Notes 15 1 See section 6(1) as to when a criminal proceeding is commenced. 2 Section 102 provides for the fixing of a date for a filing hearing. 99 Time limit for determining certain committal 20 proceedings for a sexual offence (1) This section applies to a committal proceeding for a sexual offence if-- (a) the complainant was a child or a person with a cognitive impairment when the criminal 25 proceeding was commenced; and (b) a witness other than the complainant is to be cross-examined in the committal hearing. (2) The Magistrates' Court must determine a committal proceeding to which subsection (1) 30 applies within 2 months after the committal mention hearing or, if more than one committal mention hearing is held, the final committal mention hearing. 561013B.I-3/12/2008 87 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.1--Preliminary s. 100 (3) The Magistrates' Court may fix a longer period for the determination of a committal proceeding to which subsection (1) applies if the court is satisfied that it is in the interests of justice that 5 another period should be fixed having regard to-- (a) the seriousness of the offence; and (b) the reason a longer period is required. (4) Subsection (2) does not apply if-- (a) the accused has failed to attend in 10 accordance with the conditions of his or her bail; or (b) a warrant to arrest the accused has been issued and at the end of the relevant period referred to in section 126(1) the accused has 15 not been arrested; or (c) the accused requests that the committal proceeding be determined after the period referred to in subsection (2) and the Magistrates' Court is satisfied that in the 20 interests of justice the request should be granted. (5) If a committal proceeding to which subsection (1) applies has not been determined before the expiry of the period referred to in subsection (2), or any 25 longer period fixed under subsection (3), the Magistrates' Court may, on the application of the accused, order that the accused be discharged. 100 Hearings in a committal proceeding and attendance of accused 30 (1) The hearings that may be held in a committal proceeding are-- (a) a filing hearing; (b) a special mention hearing; (c) a compulsory examination hearing; 561013B.I-3/12/2008 88 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.1--Preliminary s. 100 (d) a committal mention hearing; (e) a committal case conference; (f) a committal hearing. (2) An accused must attend all hearings in the 5 committal proceeding against the accused unless excused under-- (a) section 135, in the case of a committal hearing; or (b) section 330, in any other case. __________________ 561013B.I-3/12/2008 89 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.2--Filing Hearing s. 101 PART 4.2--FILING HEARING 101 Filing hearing At a filing hearing, the Magistrates' Court may-- (a) fix a date for a committal mention hearing; 5 (b) fix a period of time for service of a hand-up brief; (c) make any order or give any direction that the court considers appropriate. 102 Time limit for filing hearing 10 The date fixed for a filing hearing must be-- (a) within 7 days after the charge-sheet is filed, if the accused has been arrested and either remanded in custody or granted bail; or (b) within 28 days after the charge-sheet is filed, 15 if a summons to answer to a charge is issued in respect of the accused. __________________ 561013B.I-3/12/2008 90 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.3--Compulsory Examination s. 103 PART 4.3--COMPULSORY EXAMINATION 103 Application for order (1) Subject to this section, an informant may apply for an order under section 104(1). 5 (2) An application under subsection (1) may only be made-- (a) after a charge-sheet has been filed against the accused in relation to the matter to which the proposed examination relates; and 10 (b) subject to subsection (3), before the committal hearing, if any, commences. (3) An application under subsection (1) may be made after the committal mention hearing only if the Magistrates' Court is satisfied that it is in the 15 interests of justice to allow the making of the application at that time. (4) On an application under subsection (1), the informant must advise the Magistrates' Court of the following information-- 20 (a) whether the person sought to be examined has been asked by the prosecution to make a statement and has refused to do so; and (b) whether the informant is aware of whether the person sought to be examined has 25 obtained legal advice concerning the proposed examination; and (c) whether the person sought to be examined is or has been a suspect with respect to the matter to which the proposed examination 30 relates; and (d) whether the person sought to be examined has been made aware of the application; and 561013B.I-3/12/2008 91 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.3--Compulsory Examination s. 104 (e) any other information prescribed by the rules of court. (5) An application under subsection (1) may be made with or without notice to the accused. 5 (6) If the person sought to be examined in an application under subsection (1) is or has been a suspect with respect to the matter to which the proposed examination relates, the informant must give reasonable notice of the application to the 10 person, or a legal practitioner representing the person, whether or not-- (a) a charge-sheet against the person has been filed; or (b) a charge against the person has been 15 determined. (7) The accused-- (a) is not a party to an application under subsection (1); and (b) may not address the court on the application. 20 104 Order for compulsory examination hearing (1) On the application of the informant, the Magistrates' Court may make an order requiring a person to attend before the court on a date fixed by the court for the purpose of being examined by 25 or on behalf of the informant or producing a document or thing or both. (2) The Magistrates' Court may make an order under subsection (1) if it is satisfied that it is in the interests of justice to do so. 30 (3) The Magistrates' Court may set aside an order under subsection (1) at any time, whether on its own motion or on the application of the informant or the person sought to be examined. 561013B.I-3/12/2008 92 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.3--Compulsory Examination s. 105 105 Notice of compulsory examination order to be served (1) The informant must serve notice of an order made under section 104(1) on-- 5 (a) the person to whom the order relates; and (b) the accused. (2) The notice must-- (a) be in the form prescribed by the rules of court; and 10 (b) be served personally on the person to whom the order relates in accordance with section 339. (3) Section 134(1) of the Magistrates' Court Act 1989 (contempt of court) applies to a person 15 ordered to attend the Magistrates' Court under section 104(1) as if-- (a) the person had been summoned as a witness and had been given or tendered any conduct money required to be given or tendered; and 20 (b) the order were a summons. 106 Compulsory examination hearing (1) A person ordered under section 104(1) to attend the Magistrates' Court for a compulsory examination hearing-- 25 (a) may be represented at the hearing by a legal practitioner; and (b) may address the court personally or through the legal practitioner. (2) The evidence of a witness at a compulsory 30 examination hearing must be-- (a) sworn and given by way of examination-in- chief; and 561013B.I-3/12/2008 93 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.3--Compulsory Examination s. 106 (b) recorded in the same manner as evidence at a committal hearing. (3) The accused may attend a compulsory examination hearing. 5 (4) At a compulsory examination hearing, if the Magistrates' Court determines that there are exceptional circumstances, the accused may address the court personally or through a legal practitioner representing the accused but may not 10 cross-examine a witness. (5) Nothing in this section excludes or limits the operation of any other law as to the competence or compellability of a witness to give evidence. __________________ 561013B.I-3/12/2008 94 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 107 PART 4.4--PRE-HEARING DISCLOSURE OF PROSECUTION CASE 107 Informant must serve hand-up brief (1) Subject to subsection (2), the informant must 5 serve on the accused a hand-up brief that complies with section 110. (2) The informant is not required to serve a hand-up brief if he or she has served a plea brief under section 116 and the accused pleads guilty to the 10 charge. (3) At the same time as the hand-up brief is served, the informant must serve on the accused a copy of the criminal record of the accused or a statement that the accused has no previous convictions. 15 108 How hand-up brief must be served (1) A hand-up brief must be served at least 42 days before the committal mention hearing unless-- (a) the Magistrates' Court fixes another period for service; or 20 (b) the accused gives written consent to a lesser period for service. (2) A hand-up brief must be served personally on the accused in accordance with section 339 unless the informant is satisfied that ordinary service is 25 appropriate in all the circumstances. Note Section 342 provides for ordinary service. (3) In considering whether to effect service of the hand-up brief by ordinary service, the informant 30 must consider whether it is an appropriate method of service in all the circumstances as known by the informant including-- (a) the nature and gravity of the alleged offence; 561013B.I-3/12/2008 95 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 109 (b) whether the accused has previously been found guilty or convicted of any similar offence; (c) the period of time that has elapsed since the 5 accused's address for service was ascertained. 109 Copy hand-up brief to be filed and forwarded to DPP The informant must file a copy of the hand-up 10 brief with the registrar, and, if the DPP is conducting the committal proceeding, forward another copy to the DPP, within 7 days after service of the brief on the accused. 110 Contents of hand-up brief 15 (1) A hand-up brief must contain-- (a) a notice in the form prescribed by the rules of court-- (i) specifying the date of the committal mention hearing; and 20 (ii) explaining the nature of a committal proceeding and the purpose of the various stages; and (iii) explaining the importance of the accused obtaining legal representation; 25 and (iv) advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and (v) providing details of how to contact 30 Victoria Legal Aid; and (vi) describing the effect of section 125(2); and 561013B.I-3/12/2008 96 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 110 (b) a copy of the charge-sheet relating to the alleged offence; and (c) a statement of the material facts relevant to the charge; and 5 (d) any information, document or thing on which the prosecution intends to rely in the committal proceeding including-- (i) a copy of any statement relevant to the charge signed by the accused, or a 10 record of interview of the accused, that is in the possession of the informant; and (ii) a copy, or a transcript, of any audio- recording or audiovisual recording 15 required to be made under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; and (iii) a copy or statement of any other evidentiary material that is in the 20 possession of the informant relating to a confession or admission made by the accused relevant to the charge; and (iv) a list of the persons who have made statements that the informant intends to 25 tender at the committal hearing, together with copies of those statements; and (v) if a person has been examined under section 106 and the informant intends 30 to tender a record of that examination at the committal hearing, a transcript of the recording of the examination; and (vi) if the committal proceeding relates (wholly or partly) to a charge for-- 35 (A) a sexual offence; or 561013B.I-3/12/2008 97 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 110 (B) an offence which involves an assault on, or injury or a threat of injury to, a person-- a transcript of any audio or video 5 recording of a kind referred to in section 37B(2) of the Evidence Act 1958 if the informant intends to tender the transcript at the committal hearing; and 10 (vii) a legible copy of any document which the prosecution intends to produce as evidence; and (viii) a list of any things the prosecution intends to tender as exhibits; and 15 (ix) a clear photograph, or a clear copy of such a photograph, of any proposed exhibit that cannot be described in detail in the list; and (x) a description of any forensic procedure, 20 examination or test that has not yet been completed and on which the prosecution intends to rely as tending to establish the guilt of the accused; and (e) any other information, document or thing in 25 the possession of the prosecution that is relevant to the alleged offence including-- (i) a list of the persons (including experts) who have made statements relevant to the alleged offence which the 30 prosecution does not intend to tender at the committal hearing; and (ii) a copy of every statement referred to in subparagraph (i) made by each of those persons or, if the person has not made a 35 statement, a written summary of the substance of any evidence likely to be 561013B.I-3/12/2008 98 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 110 given by that person or a list of those statements or written summaries; and (iii) a copy of every document relevant to the alleged offence that the prosecution 5 does not intend to tender as an exhibit or a list of those documents; and (iv) a list containing descriptions of any things relevant to the alleged offence that the prosecution does not intend to 10 tender as exhibits; and (v) a clear photograph, or a clear copy of such a photograph, of any thing relevant to the alleged offence that cannot be described in detail in the list; 15 and (vi) a copy of-- (A) records of any medical examination of the accused; and (B) reports of any forensic procedure 20 or forensic examination conducted on the accused; and (C) the results of any tests-- carried out on behalf of the prosecution and relevant to the alleged offence but 25 on which the prosecution does not intend to rely; and (f) if the committal proceeding relates (wholly or partly) to a charge for a sexual offence, a copy of every statement made by the 30 complainant to any member of the police force that relates to the alleged offence and contains an acknowledgment of its truthfulness; and 561013B.I-3/12/2008 99 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 111 (g) a copy of, or a list of, any other information, documents or things required by the rules of court to be included in a hand-up brief. Note 5 See section 363 as to the prosecution's general obligation of disclosure. 111 Continuing obligation of disclosure (1) This section applies to any information, document or thing that-- 10 (a) comes into the informant's possession or comes to the informant's notice after the service of the hand-up brief; and (b) would have been required to be listed, or a copy of which would have been required to 15 be served, in the hand-up brief. (2) The informant must-- (a) serve on the accused a copy of the document or list; and (b) file a copy with the registrar; and 20 (c) if the DPP is conducting the committal proceeding, forward another copy to the DPP-- as soon as practicable after the information, document or thing comes into the informant's 25 possession or comes to the informant's notice. (3) This section does not apply to a plea brief. Note See section 363 as to the prosecution's general obligation of disclosure. 30 112 Rules with respect to statements (1) A statement that the informant intends to tender in a committal proceeding must be-- (a) in the form of an affidavit; or 561013B.I-3/12/2008 100 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 113 (b) signed by the person making the statement and must contain an acknowledgment signed by that person in the presence of a person referred to in Schedule 3 that the statement is 5 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; or (c) in a form, and attested to in a manner, 10 prescribed by the rules of court. (2) If a person under the age of 18 years makes a statement that the informant intends to tender in a committal proceeding, the statement must include the person's age. 15 (3) If a person who cannot read makes a statement that the informant intends to tender in a committal proceeding-- (a) the statement must be read to the person before he or she signs it; and 20 (b) the acknowledgment must state that the statement was read to the person before he or she signed it. (4) A person who acknowledges a statement that the informant intends to tender in a committal 25 proceeding and that the person knows at the time to be false is liable to the penalties of perjury. 113 Rules with respect to recordings (1) A transcript of an audio or video recording of an examination under section 106 or of the evidence- 30 in-chief of a witness under section 37B of the Evidence Act 1958 must be accompanied by an affidavit sworn by the person who asked the questions, or made the recording, attesting to the accuracy of the recording. 561013B.I-3/12/2008 101 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 114 (2) A person who acknowledges the contents of a recording referred to in subsection (1) that the person knows at the time to be false may be dealt with as if the contents of the recording had been 5 evidence given in court. 114 Disclosure of address or telephone number of witness (1) The informant must not disclose the address or telephone number (including a private, business or 10 official address or telephone number) of any person in any information, document or thing provided to the accused under this Part unless-- (a) the informant believes that-- (i) the information, document or thing 15 does not identify the address or telephone number as that of any particular person; or (ii) the address or telephone number is relevant to the offence charged and 20 disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or (b) the Magistrates' Court permits the disclosure 25 in accordance with subsection (3) on application made by the informant or the accused. (2) For the purposes of subsection (1), the informant may delete, or render illegible, an address or 30 telephone number included in the information, document or thing before service on the accused. (3) The Magistrates' Court may grant an application made under subsection (1)(b) if the court is satisfied that-- 561013B.I-3/12/2008 102 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 115 (a) the address or telephone number is relevant to the offence charged; and (b) one of the following applies-- (i) disclosure is not likely to present a 5 reasonably ascertainable risk to the welfare or physical safety of any person; or (ii) having regard to the matters referred to in subsection (4), the interests of justice 10 outweigh any risk referred to in subparagraph (i). (4) For the purposes of subsection (3)(b)(ii), the Magistrates' Court must have regard to-- (a) the right to privacy of the witness; and 15 (b) the right of the accused to prepare properly for the hearing. (5) Compliance, or a failure to comply, with subsection (1) does not affect the admissibility of a statement. 20 Note See section 14 of the Victims' Charter Act 2006 as to victims' privacy. 115 Inspection of exhibits The accused may inspect the exhibits at a time and 25 place agreed between the accused and the informant. 116 Informant may serve and file plea brief (1) At any time before service of a hand-up brief, the informant may serve on the accused a plea brief 30 that complies with section 117 if consent is given under subsection (2). 561013B.I-3/12/2008 103 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 117 (2) A plea brief may only be served if the accused, or a legal practitioner representing the accused, gives written consent to the service of a plea brief to-- (a) the informant; and 5 (b) if the DPP is conducting the committal proceeding, the DPP. (3) A plea brief must be served on the accused in accordance with section 342 (ordinary service). (4) Within 7 days after service of the plea brief on the 10 accused, the informant must-- (a) file a copy of a plea brief with the registrar; and (b) if the DPP is conducting the committal proceeding, forward another copy to the 15 DPP. Note Section 142 provides for determination of a committal proceeding where a plea brief is used. 117 Contents of plea brief 20 (1) A plea brief must contain-- (a) a copy of the charge-sheet relating to the offence; and (b) a statement of the material facts relevant to the charge; and 25 (c) a copy of any statement relevant to the charge signed by the accused, or a record of interview of the accused, that is in the possession of the informant; and (d) a copy, or a transcript, of any audio- 30 recording or audiovisual recording required to be made under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; and 561013B.I-3/12/2008 104 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.4--Pre-hearing Disclosure of Prosecution Case s. 117 (e) a copy or statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission made by the accused relevant to 5 the charge. (2) The informant must include in a plea brief a copy of any statement made by an alleged victim of an offence to which the committal proceeding relates if the statement-- 10 (a) concerns the circumstances of the offence; and (b) would be admissible in evidence; and (c) is in the possession of the informant. (3) The informant may include in a plea brief any 15 other statement relevant to the charge. (4) Sections 112 and 114 apply to a statement included in a plea brief. __________________ 561013B.I-3/12/2008 105 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 118 PART 4.5--CASE DIRECTION 118 Case direction notice (1) If a hand-up brief is served under section 107, the accused and the DPP or, if the DPP is not 5 conducting the committal proceeding, the informant, must jointly file with the registrar a case direction notice at least 7 days before the committal mention hearing. (2) If the accused is not represented by a legal 10 practitioner and does not sign a case direction notice, the DPP or, if the DPP is not conducting the committal proceeding, the informant must file the case direction notice, despite-- (a) it not being signed by or on behalf of the 15 accused; and (b) the accused not having participated in any discussion or other activity connected with its preparation. (3) If the Magistrates' Court at any time fixes another 20 date for a committal mention hearing, the court may-- (a) direct that another case direction notice is to be jointly filed with the registrar by the accused and the DPP or, if the DPP is not 25 conducting the committal proceeding, the informant, at least 7 days before that date or within any other period that is fixed by the court; and (b) give any direction that it considers 30 appropriate as to the matters to be dealt with by that case direction notice. 561013B.I-3/12/2008 106 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 119 119 Contents of case direction notice A case direction notice-- (a) must be in the form prescribed by the rules of court; 5 (b) must specify the procedure by which it is proposed that the matter be dealt with or indicate whether an adjournment of the committal mention hearing would assist the parties in determining how the matter should 10 be dealt with; (c) must state the names of any witnesses that the accused intends to seek leave to cross- examine and specify in respect of each of those witnesses whether the informant 15 consents to or opposes leave being granted; (d) if the informant opposes leave being granted to cross-examine a specified witness, must state-- (i) any issue identified by the accused to 20 which the proposed questioning relates and any reason provided by the accused as to why the evidence of the witness is relevant to that issue; and (ii) why cross-examination of the witness 25 on that issue is justified; and (iii) why the informant opposes leave being granted; (e) may include a statement that the accused requires-- 30 (i) specified items listed in the hand-up brief to be produced for inspection or a copy given to the accused on or before the committal mention hearing; 561013B.I-3/12/2008 107 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 120 (ii) a copy of any information, document or thing specified by the accused that the accused considers ought to have been included in the hand-up brief; 5 (iii) particulars of previous convictions of any witness on whose evidence the prosecution intends to rely in the committal proceeding; (f) may include a statement that the accused is 10 prepared, or is not prepared, to proceed or proceed further with the committal hearing while a forensic procedure, examination or test described in the hand-up brief remains uncompleted; 15 (g) must be signed by or on behalf of the accused and the DPP or, if the DPP is not conducting the committal proceeding, the informant. 120 Late application for leave to cross-examine witness 20 (1) The Magistrates' Court may permit an accused to apply for leave to cross-examine a witness after the expiry of the period for filing a case direction notice if the court is satisfied that it is in the interests of justice to do so, having regard to the 25 reason why the application was not made before the expiry of the period. (2) If the Magistrates' Court allows an accused to apply for leave to cross-examine a witness in the circumstances referred to in subsection (1), the 30 accused and the DPP or, if the DPP is not conducting the committal proceeding, the informant, must jointly file with the registrar another case direction notice-- (a) at least 7 days before the next committal 35 mention hearing; or 561013B.I-3/12/2008 108 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 121 (b) within any other period that is fixed by the court. (3) Section 119(b) does not apply to a case direction notice required to be filed under subsection (2). 5 121 Adjournment without appearance of parties (1) If the parties have indicated in a case direction notice under section 118 that an adjournment of the committal mention hearing would assist them in determining how the matter should be dealt 10 with, the Magistrates' Court may, without requiring the appearance of the informant or the accused, if satisfied that it is in the interests of justice to do so-- (a) adjourn the hearing for up to 14 days and fix 15 another date for a committal mention hearing; and (b) if the accused has been granted bail in respect of the committal proceeding-- (i) excuse the accused from attending on 20 the date on which the accused was bailed to attend; and (ii) extend the bail of the accused to the date fixed under paragraph (a). (2) If the Magistrates' Court adjourns a committal 25 mention hearing under subsection (1), it must give to the prosecution and the accused written notice of the date to which the hearing is adjourned. (3) If the Magistrates' Court extends bail under subsection (1)(b)(ii) it must give to the accused 30 and the surety or sureties, if any, written notice of-- (a) the extension of bail by the court in the absence of the accused and the surety; and 561013B.I-3/12/2008 109 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 122 (b) the date, time and place at which the accused is bound to attend; and (c) the consequences of failure to attend on that date at that time and place. 5 122 Compliance with request to copy or inspect items or disclose previous convictions of witness (1) Subject to subsection (2), the informant must comply with any reasonable request referred to in section 119(e)(i) or (ii) for a copy of an item but, 10 if the informant considers that it is not reasonable to copy the item owing to its size or nature, the informant must allow the accused to inspect it on or before the committal mention hearing. (2) The informant may object to the production of an 15 item requested under section 119(e)(i) or (ii) on any ground referred to in section 45 or 114. (3) The informant may object to the disclosure of the particulars of any previous conviction of any witness requested under section 119(e)(iii) if the 20 previous conviction is, because of its character, irrelevant to the proceeding but the informant must advise the accused of the existence of any undisclosed previous convictions. Note 25 See section 14 of the Victims' Charter Act 2006 as to victims' privacy. (4) Nothing in this section-- (a) prevents the accused applying for the issue of a witness summons in respect of an item 30 listed in the hand-up brief; or (b) requires the informant to produce an item listed in the hand-up brief if its production is not requested under section 119(e)(i) or a witness summons is not issued in respect of 561013B.I-3/12/2008 110 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 123 it, unless the Magistrates' Court otherwise orders; or (c) prevents the Magistrates' Court or the informant proceeding, or proceeding further, 5 with the committal hearing, irrespective of any statement included by the accused in the notice under section 119(f). Note At a committal mention hearing the Magistrates' Court may 10 hear and determine any objection to disclosure of material: section 125(1)(e). 123 No cross-examination of certain witnesses in sexual offence cases Despite anything to the contrary in this Part, the 15 Magistrates' Court must not grant leave to cross- examine a witness who-- (a) is a complainant in a proceeding that relates (wholly or partly) to a charge for a sexual offence; and 20 (b) was a child or a person with a cognitive impairment when the criminal proceeding was commenced; and (c) made a statement a copy of which was served in the hand-up brief or whose 25 evidence-in-chief or examination at a compulsory examination hearing was recorded and a transcript of the recording was served in the hand-up brief. 124 Leave required to cross-examine other witnesses 30 (1) A witness (other than a witness referred to in section 123) cannot be cross-examined without leave being granted under this section. 561013B.I-3/12/2008 111 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 124 (2) If the informant consents to leave to cross- examine a witness being granted, the Magistrates' Court must grant leave unless the court considers that it is inappropriate to do so. 5 (3) If the informant does not consent to leave to cross- examine a witness being granted, the Magistrates' Court must not grant leave unless the court is satisfied that-- (a) the accused has identified an issue to which 10 the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and (b) cross-examination of the witness on that issue is justified. 15 (4) In determining whether cross-examination is justified, the Magistrates' Court must have regard to the need to ensure that-- (a) the prosecution case is adequately disclosed; and 20 (b) the issues are adequately defined; and (c) the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged; and (d) a fair trial will take place if the matter 25 proceeds to trial, including that the accused is able adequately to prepare and present a defence; and (e) matters relevant to a potential plea of guilty are clarified; and 30 (f) matters relevant to a potential discontinuance of prosecution under section 177 are clarified; and 561013B.I-3/12/2008 112 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.5--Case Direction s. 124 (g) trivial, vexatious or oppressive cross- examination is not permitted; and (h) the interests of justice are otherwise served. (5) In addition to the requirements of subsection (4), 5 if the witness is under 18 years of age, the Magistrates' Court must have regard to-- (a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and 10 (b) any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding; and (c) any mental, intellectual or physical disability to which the witness is or appears to be 15 subject and of which the court is aware; and (d) the importance of the witness to the case for the prosecution; and (e) the existence or lack of evidence that corroborates the proposed evidence of the 20 witness; and (f) the extent of any proposed admissions; and (g) the probative value of the proposed evidence of the witness; and (h) the issues in dispute; and 25 (i) the weight of the proposed evidence of the witness; and (j) any statements of other witnesses that contradict the proposed evidence of the witness. __________________ 561013B.I-3/12/2008 113 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.6--Committal Mention and Case Conference s. 125 PART 4.6--COMMITTAL MENTION AND CASE CONFERENCE 125 Committal mention hearing (1) At a committal mention hearing, the Magistrates' 5 Court may-- (a) immediately determine the committal proceeding in accordance with section 141 or 142; (b) offer a summary hearing or determine an 10 application for a summary hearing in accordance with section 30; (c) hear and determine an application for leave to cross-examine a witness; (d) fix a date for a committal hearing; 15 (e) hear and determine any objection to disclosure of material; (f) fix another date for a committal mention hearing; (g) make any other order or give any direction 20 that the court considers appropriate. (2) In considering whether to fix another date for a committal mention hearing to enable the accused to obtain legal representation, the Magistrates' Court must have regard to whether the accused 25 has made reasonable attempts to obtain legal representation. 126 Time for holding committal mention hearing (1) A committal mention hearing must be held-- (a) in the case of a sexual offence, within 30 3 months after the commencement of the criminal proceeding for the offence; or 561013B.I-3/12/2008 114 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.6--Committal Mention and Case Conference s. 126 (b) in the case of any other offence, within 6 months after the commencement of the criminal proceeding for the offence-- or any other period fixed by the Magistrates' Court 5 under subsection (2). Note Section 6(1) sets out how a criminal proceeding is commenced. (2) The Magistrates' Court may fix a longer period for 10 the holding of a committal mention hearing if the court is satisfied that it is in the interests of justice that another period should be fixed having regard to-- (a) the seriousness of the offence; and 15 (b) the reason a longer period is required. (3) Subsection (1) does not apply-- (a) if the accused has failed to attend in accordance with the conditions of his or her bail; or 20 (b) if a warrant to arrest the accused has been issued and at the end of the period referred to in subsection (1)(a) or (b) (as the case requires) the accused has not been arrested; or 25 (c) if the accused requests that a committal mention hearing be held after the period referred to in subsection (1)(a) or (b) (as the case requires) and the Magistrates' Court is satisfied that in the interests of justice the 30 request should be granted. 561013B.I-3/12/2008 115 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.6--Committal Mention and Case Conference s. 127 (4) If a committal mention hearing has not been held before the expiry of the period referred to in subsection (1)(a) or (b) (as the case requires), or any longer period fixed under subsection (2), the 5 Magistrates' Court, on the application of the accused, may order the accused to be discharged. 127 Committal case conference (1) The Magistrates' Court may direct the parties to a committal proceeding to appear at a committal 10 case conference to be conducted by a magistrate. (2) Wherever practicable, a committal case conference should be conducted on the date of the committal mention hearing. (3) Evidence of-- 15 (a) anything said or done in the course of a committal case conference; or (b) any document prepared solely for the purposes of a committal case conference-- is not admissible in any proceeding before any 20 court or tribunal or in any inquiry in which evidence is or may be given before any court or person acting judicially, unless all parties to the committal case conference agree to the giving of the evidence. __________________ 561013B.I-3/12/2008 116 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 128 PART 4.7--COMMITTAL HEARING 128 Committal hearing At a committal hearing, the Magistrates' Court-- (a) may offer a summary hearing or determine 5 an application for a summary hearing in accordance with section 30; (b) may hear evidence in accordance with section 130; (c) if the committal hearing proceeds, must 10 determine, in accordance with section 141, whether there is evidence of sufficient weight to support a conviction; (d) may make any order or give any direction that the court considers appropriate. 15 129 Attendance of witnesses (1) If leave is granted to cross-examine a witness referred to in section 124 or to call such a witness to give oral evidence-in-chief, the witness must attend on the date to which the committal hearing 20 is adjourned for the witness to give evidence. (2) The informant must ensure that the witness attends at the time and place fixed for the giving of evidence by the witness. (3) A witness who is required to attend a committal 25 hearing must attend on any date to which the hearing is adjourned unless excused from attendance by the Magistrates' Court. Note See section 134 for powers of the Magistrates' Court and 30 inadmissibility of statement etc. when a witness who is required to attend a committal hearing fails to do so. 561013B.I-3/12/2008 117 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 130 130 Giving of evidence by witnesses (1) In this section-- recording means an audio or video recording of-- (a) the evidence-in-chief of a witness; or 5 (b) the compulsory examination of a person under section 106-- a transcript of which was served in the hand- up brief; statement means a statement of a witness, a copy 10 of which was served in the hand-up brief. (2) A witness may be called to give evidence at a committal hearing if-- (a) the Magistrates' Court grants leave under section 124 for the cross-examination of the 15 witness; or (b) having regard to the interests of justice, the Magistrates' Court grants leave to the prosecution to call the witness to give oral evidence-in-chief. 20 (3) If the Magistrates' Court grants leave under section 124 to cross-examine a witness, the evidence-in-chief of the witness must be confined to the witness identifying himself or herself (in a manner consistent with section 131) and attesting 25 to the truthfulness of the statement or the contents of the recording, unless the Magistrates' Court gives leave under subsection (4) or (5). (4) If it is in the interests of justice, the Magistrates' Court may give leave for a witness referred to in 30 subsection (3) to give oral evidence-in-chief supplementary to the statement or recording. 561013B.I-3/12/2008 118 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 131 (5) If exceptional circumstances exist, the Magistrates' Court may give leave for a witness referred to in subsection (3) to give the whole of his or her evidence-in-chief orally. 5 (6) On application by a party, the Magistrates' Court may permit a statement or the transcript of a recording to be read aloud before the witness is asked to attest to its truthfulness or is cross- examined. 10 (7) Subject to section 124, a witness who gives evidence-in-chief may be cross-examined and re- examined. (8) Evidence given at a committal hearing must be recorded in accordance with Part VI of the 15 Evidence Act 1958. 131 Disclosure of address or telephone number of witness (1) A witness whose address or telephone number was not disclosed in material provided to the 20 accused under Part 4.4 must not disclose that information to the Magistrates' Court unless the court permits the disclosure in accordance with subsection (2) on application by the informant or the accused. 25 (2) The Magistrates' Court may only grant an application under subsection (1) if the court is satisfied that-- (a) the address or telephone number is relevant to the offence charged; and 30 (b) one of the following applies-- (i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or 561013B.I-3/12/2008 119 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 132 (ii) having regard to the matters referred to in subsection (3), the interests of justice outweigh any risk referred to in subparagraph (i). 5 (3) For the purposes of subsection (2)(b)(ii), the Magistrates' Court must have regard to-- (a) the right to privacy of the witness; and (b) the right of the accused to prepare properly for the hearing. 10 132 Cross-examination of witnesses (1) Subject to this section, an accused who obtains leave to cross-examine a witness is not limited to cross-examining the witness on the issue with respect to which leave was obtained. 15 (2) Without limiting any other power that it has to forbid or disallow questions, the Magistrates' Court may disallow any question asked of a witness in the course of cross-examination in a committal hearing if it appears to the court that-- 20 (a) the accused has not identified an issue to which the question relates and has not provided a reason why the evidence of the witness is relevant to that issue; or (b) the question is not justified. 25 (3) In determining whether a question is justified, the Magistrates' Court must have regard to the matters referred to in section 124(4) and (5). 133 Special rules applicable to sexual offences (1) This section applies to a committal hearing 30 relating to a charge for a sexual offence, whether or not the committal hearing relates to any other charge against the same or any other person and whether or not it is alleged that there are aggravating circumstances. 561013B.I-3/12/2008 120 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 133 (2) The informant must be represented by a legal practitioner. (3) While the complainant is giving evidence or a recording of the evidence of the complainant or of 5 his or her examination under section 106 is being played, only the following persons may be present-- (a) the informant; (b) the accused; 10 (c) a person whom the complainant wishes to have present for the purpose of providing emotional support to him or her and who is available and approved by the court to be present; 15 (d) the legal practitioners representing the prosecution and the accused and not more than one assistant for each legal practitioner; (e) the court officials whose presence is required; 20 (f) authorized officers within the meaning of the Court Security Act 1980 whose presence is required for court security purposes; (g) any person recording the evidence in accordance with Part VI of the Evidence Act 25 1958; (h) any other person who has been authorised by the Magistrates' Court to be present. (4) The Magistrates' Court must give reasons for authorising a person to be present under 30 subsection (3)(h). 561013B.I-3/12/2008 121 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 134 134 Failure of witness to attend committal hearing (1) If a witness who is required to attend a committal hearing does not attend, the Magistrates' Court may-- 5 (a) adjourn the hearing; or (b) cause a warrant to arrest or summons to be issued to compel the attendance of the witness; or (c) continue the committal hearing in the 10 absence of the witness if satisfied that it would not be unfair to the accused to do so. (2) If the Magistrates' Court continues the committal hearing in the absence of the witness referred to in subsection (1), the statement or recorded evidence 15 or examination of the witness is inadmissible in evidence in the committal hearing. 135 Court may permit accused to be absent from committal hearing (1) Before or during a committal hearing, an accused 20 may apply to the Magistrates' Court for permission to be absent from the committal hearing for a specified period. (2) On application made under subsection (1), the Magistrates' Court may permit an accused to be 25 absent from the committal hearing for a period, and subject to any conditions, specified by the court if the court-- (a) is satisfied that there are special circumstances in respect of the accused; and 30 (b) considers that the committal hearing cannot be postponed without undue prejudice or inconvenience to the prosecution or any other accused or any witness. 561013B.I-3/12/2008 122 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 136 (3) If the Magistrates' Court permits an accused to be absent from a committal hearing, the court may continue the committal hearing in the absence of the accused. 5 (4) The power under section 330(3) to excuse the attendance of an accused does not apply to this section. 136 Accused who absconds etc. during a committal hearing 10 If, during a committal hearing, an accused-- (a) absconds; or (b) behaves in a manner necessitating the removal of the accused from the courtroom and the Magistrates' Court orders the accused 15 to be removed; or (c) is absent for any other reason without the permission of the court-- the Magistrates' Court may continue the committal hearing in the absence of the accused if the court 20 considers that the committal hearing cannot be postponed without undue prejudice or inconvenience to the prosecution or any other accused or any witness. 137 Accused (natural person) absent at close of 25 prosecution case If-- (a) a committal hearing is continued in the absence of an accused who is a natural person; and 30 (b) the accused is not present when the evidence for the prosecution is concluded-- the Magistrates' Court must, unless it makes an order under section 141(4)(a) for the accused to be discharged-- 561013B.I-3/12/2008 123 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.7--Committal Hearing s. 138 (c) postpone the committal hearing until the accused is present; or (d) if any other accused is present, postpone the committal hearing in respect of the charge 5 against the absent accused. 138 Procedure on accused's attendance after absence If an accused-- (a) has been absent from a committal hearing; and 10 (b) was not represented by a legal practitioner during the absence-- then, on the accused's attendance, the Magistrates' Court-- (c) must direct that-- 15 (i) the record of evidence be played or read in the presence of the accused; or (ii) the accused be supplied with a transcript of the evidence; and (d) may, on the application of the accused and 20 subject to section 124, recall for further examination any witness who gave oral evidence during the accused's absence. __________________ 561013B.I-3/12/2008 124 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.8--Evidence in Committal Proceeding s. 139 PART 4.8--EVIDENCE IN COMMITTAL PROCEEDING 139 Admissibility of non-oral evidence (1) Subject to subsections (2) and (3), on proof of their service on the accused in accordance with 5 Part 4.4, the following are admissible as if their contents were a record of evidence given orally-- (a) any statement the truthfulness of which has been attested to, other than a statement that is inadmissible under section 134(2); 10 (b) any exhibit or document referred to in a statement which is admissible; (c) any recording the truthfulness of the contents of which has been attested to, other than a recording that is inadmissible under section 15 134(2); (d) any other recording a transcript of which has been served in the hand-up brief, other than a recording that is inadmissible under section 134(2). 20 (2) The Magistrates' Court may rule as inadmissible the whole or any part of-- (a) a statement; or (b) any exhibit or document referred to in a statement; or 25 (c) the contents of a recording. (3) A recording, a transcript of which has been served in the hand-up brief, is only admissible if it is proved that the accused and his or her legal practitioner were given a reasonable opportunity 30 to listen to and, in the case of a video recording, view the recording. 561013B.I-3/12/2008 125 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.8--Evidence in Committal Proceeding s. 140 140 Procedure if accused makes admission of relevant fact or matter (1) If under section 184 of the Evidence Act 2008 an accused makes, during a committal proceeding, an 5 admission of any fact or matter that is relevant in the proceeding, the Magistrates' Court must cause the admission to be included in the record of the proceeding. (2) An admission made by an accused during a 10 committal proceeding may be used in evidence at the subsequent trial. __________________ 561013B.I-3/12/2008 126 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.9--Determination of Committal Proceeding s. 141 PART 4.9--DETERMINATION OF COMMITTAL PROCEEDING 141 Determination of committal proceeding where hand-up brief used 5 (1) After the evidence for the prosecution is concluded, the Magistrates' Court must enquire whether the accused intends to call any witness or make any submission. (2) If the accused is not represented by a legal 10 practitioner, the Magistrates' Court must inform the accused, in a manner likely to be understood by the accused, that-- (a) the accused has the right to answer the charge and must choose either-- 15 (i) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge and then to respond to any questions 20 from the prosecution or the court about the evidence of the accused; or (ii) to say nothing in answer to the charge; and (b) in either case, the accused may call any 25 witnesses to give sworn evidence for the accused. (3) After giving the information referred to in subsection (2), the Magistrates' Court must ask the accused what the accused wants to do. 561013B.I-3/12/2008 127 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.9--Determination of Committal Proceeding s. 142 (4) At the conclusion of all of the evidence and submissions, if any, the Magistrates' Court must-- (a) if in its opinion the evidence is not of sufficient weight to support a conviction for 5 any indictable offence, discharge the accused; or (b) if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, 10 commit the accused for trial in accordance with section 144; or (c) if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence 15 with which the accused is charged, adjourn the committal proceeding to enable the informant to file a charge-sheet in respect of that other offence and, if a charge-sheet is filed, must commit the accused for trial in 20 accordance with section 144. (5) If the informant does not file a charge-sheet for the other offence within the period of an adjournment under subsection (4)(c), the Magistrates' Court must discharge the accused. 25 142 Determination of committal proceeding where plea brief used (1) If a plea brief is served, the Magistrates' Court, at the committal mention hearing, must-- (a) ask how the accused pleads to the charge to 30 which the committal proceeding relates; and (b) if the accused pleads guilty and, in the opinion of the court, the evidence is of sufficient weight to support a conviction for the offence with which the accused is 35 charged, commit the accused for trial in accordance with section 144. 561013B.I-3/12/2008 128 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.9--Determination of Committal Proceeding s. 143 (2) If the accused does not plead guilty to the charge to which the committal proceeding relates, the Magistrates' Court must direct the informant to prepare and serve a hand-up brief. 5 143 Determination of committal proceeding where accused elects to stand trial (1) Any time after the service on an accused of a hand-up brief, the accused may elect to stand trial. (2) An election is made by-- 10 (a) filing with the registrar a notice in the form prescribed by the rules of court and signed by the accused; and (b) serving a copy of the notice on the informant in accordance with section 340. 15 (3) As soon as practicable after a notice is filed with the registrar under this section, the Magistrates' Court must-- (a) if the accused is in custody, direct that the accused be brought before the court; or 20 (b) if the accused is not in custody, direct that a summons to attend or warrant to arrest be issued. (4) On the attendance of the accused before the Magistrates' Court, if the court considers that the 25 accused understands the nature and consequence of the election, the court must commit the accused for trial in accordance with section 144. 144 Procedure before and on committing accused for trial 30 (1) Before committing an accused for trial, the Magistrates' Court must, in the manner prescribed by the rules of court, if any-- (a) ask the accused whether the accused pleads guilty or not guilty to the charge; and 561013B.I-3/12/2008 129 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.9--Determination of Committal Proceeding s. 144 (b) inform the accused that the sentencing court may take into account a plea of guilty and the stage in the proceeding at which the plea or an intention to plead guilty is indicated. 5 (2) On committing an accused for trial, the Magistrates' Court must-- (a) if the accused was not represented by a legal practitioner in the committal proceeding-- (i) explain to the accused the importance 10 of obtaining legal representation for the trial; and (ii) advise that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and 15 (iii) warn the accused that, if the accused wishes to be legally aided, it is the accused's responsibility to make application to Victoria Legal Aid as soon as possible; and 20 (b) explain to the accused, in a manner likely to be understood by the accused-- (i) the provisions of section 190 (alibi evidence), if relevant; and (ii) Rules (5) to (5C) in section 37A(1) of 25 the Evidence Act 1958, if relevant; and (iii) any other information required to be given by the rules of court; and (c) if the accused is a natural person, remand the accused in custody, or grant bail, until trial 30 or a date before trial fixed by the court; and Note See section 333 where accused is undergoing a sentence of detention in a youth justice centre. 561013B.I-3/12/2008 130 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.9--Determination of Committal Proceeding s. 144 (d) in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, on the day on which the trial of the accused is listed to commence or 5 on any other day specified by the court. Note See section 252 (offence for corporate accused to fail to appear on day trial listed to commence etc.). __________________ 561013B.I-3/12/2008 131 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.10--Procedure After Committal s. 145 PART 4.10--PROCEDURE AFTER COMMITTAL 145 Transfer of summary offences that are related offences on or after committal (1) Subject to subsection (3), on committal for trial of 5 an accused charged with an indictable offence, the Magistrates' Court must order that all proceedings in respect of charges against the accused for summary offences that are related offences are transferred to the court to which the accused has 10 been committed for trial. (2) If-- (a) an accused charged with an indictable offence is committed for trial; and (b) before trial of the indictable offence, the 15 accused is charged with a summary offence that is a related offence-- the Magistrates' Court must, subject to subsection (3), order that the proceeding for the summary offence is transferred to the court to which the 20 accused has been committed for trial. (3) If the informant to a charge for a summary offence that is a related offence and the accused agree, the Magistrates' Court may order that the proceeding for that charge is not transferred under this 25 section. Notes 1 See the definition of related offences in section 3. 2 Section 242 enables the Supreme Court or the County Court to hear and determine a charge for a related summary offence. 30 146 Documents to be forwarded to DPP After committal the registrar must forward to the DPP-- (a) the depositions; and 561013B.I-3/12/2008 132 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.10--Procedure After Committal s. 147 (b) all exhibits which have remained in the custody of the Magistrates' Court; and (c) all recordings referred to in section 139 admitted in evidence in the committal 5 proceeding; and (d) copies of all process filed in the Magistrates' Court in the proceeding; and (e) copies of all bail undertakings in the proceeding. 10 147 Accused entitled to copies of depositions and exhibits An accused committed for trial is entitled as soon as possible after being committed-- (a) to receive free of charge from the DPP-- 15 (i) a copy of the depositions; and (ii) a transcript of any recording admitted in evidence, if a transcript has not previously been supplied to the accused; and 20 (b) to examine any exhibits. 148 Absent corporate accused to be notified of committal If a corporate accused does not appear at its committal proceeding and is committed for trial in 25 its absence, the DPP or, if the DPP did not conduct the committal proceeding, the informant must serve on the accused in accordance with section 341 within 14 days after the committal a notice stating-- 30 (a) that the accused has been committed for trial on a specified charge or specified charges; and 561013B.I-3/12/2008 133 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.10--Procedure After Committal s. 148 (b) that the Magistrates' Court has ordered the accused to appear, by a representative or a legal practitioner, on the day on which the trial of the accused is listed to commence or 5 on any other day specified by the court and that it is an offence not to comply with that order; and (c) the date and time specified in the order at which the accused must appear, by a 10 representative or a legal practitioner; and (d) that if the accused does not appear on the date and time specified in the order the court may, in its absence, proceed to hear and determine the charge. __________________ 561013B.I-3/12/2008 134 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.11--Taking Evidence After Accused Committed for Trial s. 149 PART 4.11--TAKING EVIDENCE AFTER ACCUSED COMMITTED FOR TRIAL 149 Application for order that evidence be taken after committal 5 (1) If an accused has been committed for trial, the accused may apply to the Magistrates' Court for an order that the evidence of a person be taken at a time and place fixed by the court. (2) An applicant for an order under subsection (1) 10 must give notice of the application, in the form prescribed by the rules of court, to the DPP and the co-accused, if any, at least 14 days before the hearing of the application or any shorter period that is agreed to by the DPP. 15 150 Determination of application (1) Subject to this section, after an accused has been committed for trial the Magistrates' Court may order that the evidence of a person be taken at a time and place fixed by the court. 20 (2) The Magistrates' Court must not make an order under subsection (1) in respect of a person who-- (a) was examined as a witness at the committal hearing; or (b) made a statement the contents of which were 25 admitted as a record of evidence in the committal proceeding under section 139(1)(a); or (c) gave evidence-in-chief in accordance with section 37B of the Evidence Act 1958 and 30 the contents of the recording were admitted as a record of evidence in the committal proceeding under section 139(1)(c)-- 561013B.I-3/12/2008 135 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.11--Taking Evidence After Accused Committed for Trial s. 151 unless the person subsequently makes a statement or a supplementary statement the truthfulness of which has been attested to. (3) The Magistrates' Court must not make an order 5 under subsection (1) unless it is satisfied that in relation to the statement or supplementary statement of the person-- (a) there is an issue to which the evidence proposed to be taken relates; and 10 (b) there is a reason as to why the evidence of the person is relevant to that issue; and (c) taking of evidence from the person is justified. (4) In determining whether the taking of evidence 15 from the person is justified, the Magistrates' Court must have regard to the matters referred to in section 124(4) (other than paragraph (c)) and 124(5). 151 Attendance of witness 20 (1) If the accused obtains an order under section 150(1) with respect to the examination of a prosecution witness, the informant must ensure that the witness attends at a time and place fixed by the Magistrates' Court for examination. 25 (2) A witness who is required to attend for examination in accordance with an order under section 150(1) must attend on any day to which the hearing is adjourned unless excused from attendance by the Magistrates' Court. 30 (3) If a witness who is required to attend for examination in accordance with an order under section 150(1) does not attend, the Magistrates' Court may cause a warrant to arrest or summons to be issued to compel the attendance of the 35 witness. 561013B.I-3/12/2008 136 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.11--Taking Evidence After Accused Committed for Trial s. 152 152 Taking of evidence after committal (1) If the accused obtains an order under section 150(1), the DPP may appear at the hearing at which evidence is taken and address the 5 Magistrates' Court. (2) On making an order under section 150(1) or at the hearing at which evidence is taken, the Magistrates' Court may make any order with respect to the examination or cross-examination of 10 the person giving evidence under this section if the court considers that it is in the interests of justice to do so. (3) A witness referred to in section 123 must not be cross-examined when giving evidence under this 15 section. (4) A person cross-examining a witness giving evidence under this section is not limited to cross- examining on the issue with respect to which the order was made under section 150(1). 20 (5) Section 132 applies in relation to the cross- examination of a person giving evidence under this section as if the person were a witness in the course of cross-examination in a committal hearing. 25 (6) Section 133 applies as if a reference to a committal hearing were a reference to a hearing at which evidence is given under this section. (7) The evidence of a person given under this section must be given and recorded in the same manner as 30 evidence at a committal hearing. (8) The record of the evidence of any person given under this section-- (a) must be forwarded as soon as possible to the DPP by the registrar; and 561013B.I-3/12/2008 137 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.11--Taking Evidence After Accused Committed for Trial s. 152 (b) has effect and must be treated as if it were a record of evidence given at the committal hearing. __________________ 561013B.I-3/12/2008 138 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.12--General s. 153 PART 4.12--GENERAL 153 Special mention hearing At a special mention hearing, the Magistrates' Court may-- 5 (a) change the date fixed by the court for any hearing in a committal proceeding; (b) make any order or give any direction that the court considers appropriate for the management of the committal proceeding; 10 (c) if the court considers it appropriate to do so, immediately conduct a committal mention hearing and determine a committal proceeding in accordance with section 142. 154 Non-appearance of corporate accused 15 (1) If a corporate accused does not appear in answer to a summons to answer to a charge for an indictable offence, the Magistrates' Court may conduct a committal proceeding in the absence of the accused if-- 20 (a) the court is satisfied that the charge and the date of the committal mention hearing in relation to it have been brought to the notice of the accused; and (b) the court considers that it is appropriate to do 25 so. (2) If the Magistrates' Court conducts a committal proceeding in the absence of a corporate accused, the court may dispense with or vary any requirement imposed by or under this Chapter. 561013B.I-3/12/2008 139 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.12--General s. 155 155 Nature of committal proceeding Nothing in this Act alters the nature of a committal proceeding from that existing immediately before the commencement of this 5 section. 156 Nothing in Chapter affects certain powers of DPP Nothing in this Chapter affects the power of the DPP-- (a) to file an indictment against a person for an 10 offence if, on a committal proceeding conducted in relation to a charge for that offence, the Magistrates' Court ordered the person to be discharged on the charge; or (b) to discontinue a prosecution under 15 section 177, or not to take within the period prescribed by section 163 any step mentioned in that section, in relation to a charge on which a person was committed for trial. 20 157 DPP may give directions for release of property tendered in evidence (1) If property is tendered in evidence during a committal proceeding and an accused is committed for trial for an offence with respect to 25 the property, a person may apply in writing to the DPP for the release of the property. (2) On receipt of an application under subsection (1), the DPP may give directions in writing that the property be released to the applicant. 30 (3) The release of property under subsection (2) may be subject to a condition that the property released must be produced at the trial and to any other conditions that the DPP considers appropriate. 561013B.I-3/12/2008 140 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 4.12--General s. 157 (4) The DPP may require a person to whom property is released under this section to give an undertaking to comply with the conditions to which the release is subject. 5 (5) A person must not fail, without reasonable cause, to comply with an undertaking given by the person under subsection (4). Penalty: Level 10 fine (10 penalty units maximum). 10 (6) Directions given under subsection (2) do not affect the legal title to the property or any legal right to possession of the property. (7) The DPP is not liable for or with respect to any direction given by the DPP under subsection (2). 15 Note Chapter 8 contains general provisions that apply to all criminal proceedings. __________________ 561013B.I-3/12/2008 141 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.1--Introduction s. 158 CHAPTER 5--TRIAL ON INDICTMENT PART 5.1--INTRODUCTION 158 Application of Chapter This Chapter applies if-- 5 (a) an accused is committed for trial under Chapter 4; or (b) a direct indictment is filed against an accused. __________________ 561013B.I-3/12/2008 142 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 159 PART 5.2--INDICTMENT AND PLACE OF TRIAL 159 DPP or Crown Prosecutor may file an indictment (1) Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the 5 DPP may file an indictment. (2) An indictment may be filed at any time, except where otherwise provided by or under this or any other Act. Note 10 Section 163 provides time limits for the filing of certain indictments. (3) An indictment must-- (a) be in writing; and (b) be signed by the DPP or a Crown Prosecutor 15 in the name of the DPP; and (c) comply with Schedule 1. Notes 1 Section 253 abolishes the common law procedure of calling a grand jury. 20 2 Section 172 permits the DPP to nominate an address for service of documents. That information may be included on an indictment. 160 Choice of Supreme Court or County Court for filing an indictment 25 (1) An indictment may be filed in-- (a) the Supreme Court; or (b) the County Court, if all of the indictable offences alleged in the indictment are within the jurisdiction of that court. 30 Note See section 36A of the County Court Act 1958 for the criminal jurisdiction of the County Court. 561013B.I-3/12/2008 143 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 161 (2) In determining whether to file an indictment in the Supreme Court or in the County Court, the DPP or a Crown Prosecutor must have regard to-- (a) the complexity of the case; and 5 (b) the seriousness of the alleged offence; and (c) any particular importance attaching to the case; and (d) any other consideration that the DPP or Crown Prosecutor considers relevant. 10 161 Direct indictment commences criminal proceeding The filing of a direct indictment commences a criminal proceeding. Notes 1 See the definition of direct indictment in section 3. 15 This includes an indictment filed after the Magistrates' Court declines to commit an accused for trial in respect of the offence charged in the indictment or a related offence. 2 A criminal proceeding may also be commenced-- (a) in accordance with section 6; or 20 (b) by a direction under section 362 that a person be tried for perjury. 162 Filing of any other indictment does not commence criminal proceeding The filing of an indictment other than a direct 25 indictment does not commence a new criminal proceeding against the accused. 163 Time limits for filing certain indictments (1) If a person is committed for trial in respect of an offence other than a sexual offence, the DPP or a 30 Crown Prosecutor may file an indictment against the person-- (a) within 6 months after the date of committal; or 561013B.I-3/12/2008 144 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 164 (b) if the period referred to in paragraph (a) or any extension of that period is extended under section 247, within the extended period. 5 (2) If a person is committed for trial in respect of a sexual offence in which the complainant was a child or a person with a cognitive impairment when the criminal proceeding was commenced, the DPP or a Crown Prosecutor may file an 10 indictment against the person-- (a) within 14 days after the date of committal; or (b) if the period referred to in paragraph (a) or any extension of that period is extended under section 247, within the extended 15 period. (3) If a person is committed for trial in respect of a sexual offence other than one referred to in subsection (2), the DPP or a Crown Prosecutor may file an indictment against the person-- 20 (a) at least 28 days before the day on which the trial is listed to commence; or (b) if the period referred to in paragraph (a), or any extension or abridgment of that period, is extended or abridged under section 247, 25 within the extended or abridged period. 164 Filing of fresh indictment (1) In this section-- fresh indictment means an indictment which includes a charge for the same offence as an 30 offence charged in an indictment previously filed in court against that accused or a related offence. (2) Nothing in section 163 prevents the filing of a fresh indictment. 561013B.I-3/12/2008 145 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 165 (3) The filing of a fresh indictment does not commence a new criminal proceeding. (4) On the filing of a fresh indictment against an accused, proceedings in relation to a charge for 5 the same offence or a related offence in an indictment previously filed in court against that accused are discontinued. Note See the definition of related offences in section 3. 10 165 Order for amendment of indictment (1) The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to 15 the accused. (2) If an indictment is amended by order under this section, the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the 20 trial. 166 Errors etc. in indictment (1) An indictment is not invalid by reason only of a failure to comply with Schedule 1. (2) A charge on an indictment is not invalid by reason 25 only of-- (a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or (b) incorrectly stating the time at which the 30 offence was committed; or (c) stating the offence to have been committed on an impossible day or on a day that never happened. 561013B.I-3/12/2008 146 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 167 167 Supreme Court may order that accused be tried in County Court or Supreme Court (1) If-- (a) an indictment against an accused is filed in 5 the Supreme Court; and (b) the offence charged in the indictment may be tried by the County Court-- the Supreme Court may order that the accused be tried at a sitting of the County Court specified in 10 the order. (2) If an indictment against an accused is filed in the County Court, the Supreme Court may order that the accused be tried at a sitting of the Supreme Court specified in the order. 15 168 Court may transfer certain charges to Magistrates' Court (1) At any time except during trial, the Supreme Court or the County Court may order that a proceeding for a charge for an indictable offence 20 that may be heard and determined summarily be transferred to the Magistrates' Court if-- (a) the accused consents to the transfer; and (b) the court considers that the charge is appropriate to be determined summarily, 25 having regard to the matters in section 29(2). Note See section 28 for indictable offences that may be heard and determined summarily. (2) The court must not transfer a charge that the 30 Magistrates' Court has refused to hear and determine summarily unless there has been a significant change in the charges against the accused or in the prosecution case against the accused. 561013B.I-3/12/2008 147 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.2--Indictment and Place of Trial s. 169 (3) If an order is made under this section, the transferred charge must be heard and determined summarily. 169 Place of hearing of criminal trial 5 (1) A criminal trial in the Supreme Court or the County Court is to be held in the court sitting at the place that is nearest to the place where the offence is alleged to have been committed, unless an order is made under section 192. 10 (2) A criminal trial is not invalid only because it was conducted at a place other than the place referred to in subsection (1). 170 Multiple charges or multiple accused on single indictment 15 (1) If an indictment contains more than one charge, the charges must be heard together unless an order is made under section 193 or 195. (2) If an indictment names more than one accused, whether in the same charge or separate charges, 20 the charge or charges against all accused must be tried together unless an order is made under section 193. __________________ 561013B.I-3/12/2008 148 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.3--Notifying Accused of Indictment s. 171 PART 5.3--NOTIFYING ACCUSED OF INDICTMENT 171 Copy indictment to be served (1) The DPP must, as soon as practicable after an indictment is filed, serve on the accused-- 5 (a) a copy of the indictment; and (b) if the DPP does not have notice that the accused is represented by a legal practitioner, a notice in the form prescribed by the rules of court-- 10 (i) advising that legal representation should be sought and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and (ii) providing details of how to contact 15 Victoria Legal Aid. (2) If a direct indictment is filed, the copy indictment referred to in subsection (1)(a) must be served personally on the accused in accordance with section 339. 20 172 DPP may nominate address etc. for service of documents (1) The DPP may nominate in writing a business address, email address or fax number for service on the DPP of documents in relation to a charge. 25 (2) A nomination under subsection (1) may be included on an indictment or any other document served on the accused. 561013B.I-3/12/2008 149 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.3--Notifying Accused of Indictment s. 173 173 Extra notice for corporate accused If a corporate accused-- (a) is to be served with a copy of an indictment under section 171(1); and 5 (b) has not been served with a notice in relation to that offence under section 148-- the DPP must serve with the copy indictment a notice stating-- (c) the date and time specified in the order under 10 section 144(2)(d) at which the accused must appear, by a representative or a legal practitioner; and (d) that if the accused does not appear on the date and time specified in the order, the court 15 may, in its absence-- (i) proceed with the trial; and (ii) if applicable, proceed to hear and determine a summary offence under Division 1 of Part 5.8. 20 174 Compelling attendance when direct indictment filed (1) On the filing in court of a direct indictment against an accused, the DPP may apply to the court for the issue of a summons or a warrant to arrest in order to compel the attendance of the 25 accused. (2) On an application under subsection (1), the court, if satisfied that the charge discloses an offence known to law, must issue-- (a) a summons requiring the accused to attend at 30 the court on a specified date and at a specified time to answer to the indictment; or (b) subject to subsection (3), a warrant to arrest. 561013B.I-3/12/2008 150 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.3--Notifying Accused of Indictment s. 175 (3) The court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that-- (a) it is probable that the accused will not 5 answer a summons; or (b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or (c) a warrant is required or authorised by any 10 other Act or for other good cause. (4) If the accused fails to attend before the court on the date and at the time specified in the summons, the court, on the application of the DPP, may issue a warrant to arrest the accused. 15 Note Section 359 provides that an arrested person must, if practicable, be brought before the court which issued the warrant. 175 Service of summons (1) The DPP must serve a summons issued under 20 section 174 by personal service on the accused in accordance with section 339 at least 14 days before the date specified in the summons. (2) A summons served on the accused must be accompanied by-- 25 (a) a copy of the indictment; and (b) if applicable, a notice required by section 171(1); and (c) in the case of a corporate accused, a notice stating that, if the accused does not appear in 30 answer to the summons, the court may, in its absence-- (i) proceed with the trial; and 561013B.I-3/12/2008 151 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.3--Notifying Accused of Indictment s. 176 (ii) if applicable, proceed to hear and determine a summary offence under Division 1 of Part 5.8. 176 Warrant to be accompanied by indictment and 5 notice On execution of a warrant issued under section 174, the warrant must be accompanied by a copy of the indictment and, if applicable, a notice required by section 171(1). __________________ 561013B.I-3/12/2008 152 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.4--Discontinuing a Prosecution s. 177 PART 5.4--DISCONTINUING A PROSECUTION 177 DPP may discontinue a prosecution without adjudication (1) The DPP may discontinue a prosecution for an 5 offence against an accused by-- (a) announcing the discontinuance in court; or (b) filing in court written notice of the discontinuance, signed by the DPP personally. 10 (2) A prosecution may be discontinued-- (a) at any time except during trial; (b) whether or not an indictment against the accused has been filed. (3) If an indictment has not been filed against the 15 accused, the written notice referred to in subsection (1)(b) must be filed in the court to which the accused has been committed for trial. (4) If a discontinuance of prosecution is announced in court, written notice of the discontinuance, signed 20 by the DPP personally, must be filed in court as soon as practicable after the announcement. (5) The DPP must serve a copy of a written notice of discontinuance that has been filed in court under subsection (1)(b) or (4) on-- 25 (a) the accused; or (b) if the accused is dead, on-- (i) the legal practitioner who last represented the accused, if that legal practitioner can reasonably be 30 identified; or (ii) the next of kin of the accused, if that person can reasonably be identified. 561013B.I-3/12/2008 153 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.4--Discontinuing a Prosecution s. 178 (6) A discontinuance of prosecution does not amount to an acquittal. (7) An accused may be indicted on a charge in respect of which an earlier prosecution has been 5 discontinued. 178 Release from custody on discontinuance of prosecution (1) If-- (a) a prosecution for a charge against a person is 10 discontinued under section 177; and (b) the person is in custody in relation to that charge, irrespective of whether the person is in custody for any other reason-- the DPP must immediately notify the person who 15 has legal custody of the person that the prosecution has been discontinued. (2) On notification being given under subsection (1), the person in custody is to be released, if the person is not in custody for any other reason. 20 Note See Part 1A of the Corrections Act 1986 and section 483 of the Children, Youth and Families Act 2005 as to who has legal custody. __________________ 561013B.I-3/12/2008 154 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 179 PART 5.5--PRE-TRIAL PROCEDURE Division 1--Directions hearings 179 Directions hearing At any time except during trial, the court may 5 conduct one or more directions hearings. Note Section 210 sets out when a trial commences. 180 Accused may be arraigned at a directions hearing (1) The accused may be arraigned at a directions 10 hearing, if an indictment has been filed against the accused. Notes 1 Section 215 sets out how and when arraignment occurs. 2 Arraignment at a directions hearing does not 15 commence a trial: see section 210. (2) Despite subsection (1), if the accused pleads not guilty to one or more charges in the indictment and indicates an intention to plead not guilty to one or more remaining charges, it is not necessary 20 for those remaining charges to be read to the accused and the accused must be taken to have pleaded not guilty to those charges. 181 Powers of court at directions hearing (1) At a directions hearing, the court may make or 25 vary any direction or order, or require a party to do anything that the court considers necessary, for the fair and efficient conduct of the proceeding. 561013B.I-3/12/2008 155 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 181 (2) Without limiting subsection (1), the court may-- (a) require the accused to advise whether the accused is legally represented and has funding for continued legal representation up 5 to and including the trial; (b) without being limited by section 200, require the parties to notify the court of any pre-trial issues that the parties intend to raise or any orders under section 199(1) that the parties 10 intend to seek; (c) without being limited by section 200, set a timetable for the hearing of pre-trial issues or applications for orders under Division 3 or 4; (d) in the case of a trial for a sexual offence in 15 which the complainant was a child or a person with a cognitive impairment when the criminal proceeding was commenced, require the prosecutor to advise as to the availability of the complainant, and the 20 accused to advise as to his or her own availability, for the special hearing to be held under section 41G of the Evidence Act 1958; Note 25 See section 5 as to the commencement of a criminal proceeding. (e) require the parties to provide an estimate of the length of the trial; (f) require the parties to advise as to the 30 estimated number and the availability of witnesses (other than the accused) and any relevant requirements of witnesses and interpreters; 561013B.I-3/12/2008 156 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 182 (g) order a party to make, file in court or serve (as the case requires) any written or oral material required by the court for the purposes of the proceeding; 5 (h) order the prosecution to file in court and serve on the accused a copy of any material on which the prosecution intends to rely at the trial; (i) determine any objection relating to the 10 disclosure of information or material by the prosecution; (j) allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding; 15 (k) determine an application for a sentence indication. (3) At a directions hearing, the court may make any order or other decision that can be made or decided before trial by or under this or any other 20 Act. Note Section 199(1) indicates the issues that may be decided before trial under this Act. Division 2--Pre-trial disclosure 25 182 Summary of prosecution opening and notice of pre- trial admissions (1) Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the 30 accused and file in court-- (a) a summary of the prosecution opening; and (b) a notice of pre-trial admissions. 561013B.I-3/12/2008 157 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 183 (2) The summary of the prosecution opening must outline-- (a) the manner in which the prosecution will put the case against the accused; and 5 (b) the acts, facts, matters and circumstances being relied on to support a finding of guilt. (3) The notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the DPP, ought to be admitted as 10 evidence without further proof, including evidence that is directed solely to formal matters including-- (a) continuity; or (b) a person's age; or 15 (c) proving the accuracy of a plan, or that photographs were taken in a certain manner or at a certain time. (4) If an accused has not received, under section 147, a copy of a statement identified in a notice of pre- 20 trial admissions, the notice must contain a copy of the statement. 183 Response of accused to summary of prosecution opening and notice of pre-trial admissions (1) After being served with a copy of the documents 25 referred to in section 182, the accused must serve on the prosecution in accordance with section 340 and file in court, at least 14 days before the day on which the trial of the accused is listed to commence-- 30 (a) a copy of the response of the accused to the summary of the prosecution opening; and (b) a copy of the response of the accused to the notice of pre-trial admissions. 561013B.I-3/12/2008 158 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 184 (2) The response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken. 5 (3) The response of the accused to the notice of pre- trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is 10 taken, the basis on which issue is taken. (4) Despite subsections (2) and (3), the accused is not required to state-- (a) the identity of any witness (other than an expert witness) to be called by the accused; 15 or (b) whether the accused will give evidence. 184 Intention to depart at trial from document filed and served If a party intends to depart substantially at trial 20 from a matter set out in a document served and filed by that party under this Division, the party-- (a) must so inform the court and the other party in advance of the trial; and (b) if the court so orders, must inform the court 25 and the other party of the details of the proposed departure. 185 Continuing obligation of disclosure (1) This section applies to any information, document or thing that-- 30 (a) comes into the possession of the prosecution after an accused is committed for trial; or 561013B.I-3/12/2008 159 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 185 (b) is in the possession of the prosecution when, or comes into the possession of the prosecution after, a direct indictment is filed against an accused-- 5 and would have been required to be listed, or a copy of which would have been required to be served, in the hand-up brief. Note See section 110 for the contents of a hand-up brief. 10 (2) Subject to subsection (4), the prosecution must serve on the accused a copy of the document or list as soon as practicable after-- (a) the information, document or thing comes into the possession of the prosecution; or 15 (b) the direct indictment is filed against the accused-- as the case requires. (3) If the information, document or thing cannot reasonably be copied, the prosecution must advise 20 the accused of the existence of the information, document or thing and make it available for inspection at a time and place agreed between the accused and the prosecution. (4) The prosecution need not provide any 25 information, document or thing under this section if it has already been provided to the accused by the prosecution. Notes 1 Sections 188 requires the prosecution to serve a notice if 30 additional evidence is to be given at trial. 2 See section 363 as to the prosecution's general obligation of disclosure. 561013B.I-3/12/2008 160 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 186 186 Disclosure of address or telephone number of witness (1) The prosecution must not disclose the address or telephone number (including a private, business or 5 official address or telephone number) of any person in any information, document or thing provided to the accused under this Division unless-- (a) the prosecutor believes that-- 10 (i) the information, document or thing does not identify the address or telephone number as that of any particular person; or (ii) the address or telephone number is 15 relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or 20 (b) the court permits the disclosure in accordance with subsection (3) on application made by the prosecutor or the accused. (2) For the purposes of subsection (1), the prosecution 25 may delete, or render illegible, an address or telephone number included in the information, document or thing before service on the accused. (3) The court may grant an application made under subsection (1)(b) if the court is satisfied that-- 30 (a) the address or telephone number is relevant to the offence charged; and 561013B.I-3/12/2008 161 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 187 (b) one of the following applies-- (i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any 5 person; or (ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i). 10 (4) For the purposes of subsection (3)(b)(ii), the court must have regard to-- (a) the right to privacy of the witness; and (b) the right of the accused to prepare properly for the trial. 15 Note See section 14 of the Victims' Charter Act 2006 as to victims' privacy. 187 Previous convictions of witness (1) The accused may request the prosecutor to 20 provide particulars of previous convictions of any witness who the prosecution intends to call at the trial. (2) A request under subsection (1) does not require the prosecutor to give to the accused particulars of 25 any previous conviction of any witness if the previous conviction is, because of its character, irrelevant to the proceeding but the prosecutor must advise the accused of the existence of any undisclosed previous convictions. 30 Notes 1 See section 14 of the Victims' Charter Act 2006 as to victims' privacy. 2 At a directions hearing the court may hear and determine any objection to disclosure of any information, document or 35 thing: section 181(2)(i). 561013B.I-3/12/2008 162 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 188 188 Prosecution notice of additional evidence (1) In this section-- additional evidence means any evidence that is not included in the depositions in the 5 proceeding. (2) If the DPP intends to call a witness at trial to give additional evidence, the DPP must serve on the accused and file in court-- (a) a notice of intention to call additional 10 evidence; and (b) a copy of the statement of the proposed witness containing the additional evidence or an outline of the additional evidence that the witness is expected to give. 15 Notes 1 See the definition of depositions in section 3. 2 Section 185 (Continuing obligation of disclosure) requires the prosecution to serve a copy of a document as soon as practicable after the document comes into the possession of 20 the prosecution. 189 Expert evidence (1) If the accused intends to call a person as an expert witness at the trial, the accused must serve on the prosecution in accordance with section 340 and 25 file in court a copy of the statement of the expert witness in accordance with subsection (2)-- (a) at least 14 days before the day on which the trial of the accused is listed to commence; or (b) if the statement is not then in existence, as 30 soon as possible after it comes into existence. 561013B.I-3/12/2008 163 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 190 (2) The statement must-- (a) contain the name and business address of the witness; (b) describe the qualifications of the witness to 5 give evidence as an expert; (c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances 10 on which the opinion is formed. Note Section 177 of the Evidence Act 2008 provides for certificates of expert evidence. 190 Alibi evidence 15 (1) An accused must not, without leave of the court-- (a) give evidence personally; or (b) adduce evidence from another witness-- in support of an alibi unless the accused has given notice of alibi within the period referred to in 20 subsection (2). (2) A notice of alibi must be given by serving the notice on the DPP within 14 days after-- (a) the day on which the accused was committed for trial on the charge to which the alibi 25 relates; or (b) if paragraph (a) does not apply, the day on which the accused received a copy of the indictment. (3) A notice of alibi must be served in accordance 30 with section 340. 561013B.I-3/12/2008 164 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 190 (4) A notice of alibi must contain-- (a) particulars as to time and place of the alibi; and (b) the name and last known address of any 5 witness to the alibi; and (c) if the name and address of a witness are not known, any information which might be of material assistance in finding the witness. (5) If the name and address of a witness are not 10 included in a notice of alibi, the accused must not call that person to give evidence in support of the alibi unless the court is satisfied that the accused took reasonable steps to ensure that the name and address would be ascertained. 15 (6) If the accused is notified by the DPP that a witness named or referred to in a notice of alibi has not been traced, the accused must give written notice to the DPP, without delay, of any further information which might be of material assistance 20 in finding the witness. (7) The court must not refuse leave under subsection (1) if it appears to the court that the accused was not informed of the requirements of this section. 25 (8) If-- (a) an accused gives notice of alibi under this section; and (b) the DPP requests an adjournment-- the court must grant an adjournment for a period 30 that appears to the court to be necessary to enable investigation of the alibi unless it appears that to do so would prejudice the proper presentation of the case of the accused. 561013B.I-3/12/2008 165 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 191 191 Offence to communicate with alibi witness (1) If a person (other than a person referred to in subsection (2)) has been named or referred to as a proposed witness in a notice of alibi given under 5 section 190-- (a) a person acting for the prosecution; or (b) a member of the police force-- must not communicate with that person directly or indirectly with respect to the charge or any related 10 matter before the conclusion of the proceeding, including any new trial or rehearing, without the consent and presence during the communication of-- (c) the legal practitioner representing the 15 accused; or (d) if not legally represented, the accused. Penalty: Level 8 imprisonment (1 year maximum) (2) Subsection (1) does not apply to a person who the 20 accused has been notified may be called as a witness for the prosecution at the trial. Division 3--Orders 192 Power to change place of trial If a court considers that-- 25 (a) a fair trial in a criminal proceeding cannot otherwise be had; or (b) for any other reason it is appropriate to do so-- the court may order that the trial be held at any 30 other place that the court considers appropriate. 561013B.I-3/12/2008 166 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 193 193 Order for separate trial (1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately. 5 (2) If an indictment names more than one accused, the court may order that charges against a specified accused be tried separately. (3) The court may make an order under subsection (1) or (2) if the court considers that-- 10 (a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or (b) a trial with the co-accused would prejudice the fair trial of the accused; or 15 (c) for any other reason it is appropriate to do so. (4) The court may make an order under subsection (1) or (2) or under section 195 before trial or during a trial. 20 (5) If the court makes an order under subsection (1) or (2) or under section 195, the prosecutor may elect which charge is to be tried first. (6) If an order under subsection (1) or (2) or under section 195 is made after a jury is empanelled, the 25 court may order that the jury be discharged from giving a verdict on the indictment. (7) The procedure on the separate trial of a charge is the same in all respects as if the charge had been set out in a separate indictment. 30 (8) If the court makes an order for a separate trial under subsection (1) or (2) or under section 195, the court may make any order for or in relation to the bail of the accused that the court considers appropriate. 561013B.I-3/12/2008 167 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 194 194 Order for separate trial--sexual offences (1) In this section-- sexual offence includes an offence to which clause 1 of Schedule 1 to the Sentencing Act 5 1991 applies. (2) Despite section 193 and any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), if in accordance with this Act 2 or more charges for sexual offences are 10 joined in the same indictment, it is presumed that those charges are to be tried together. (3) The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge. 15 195 Order for separate trial--conspiracy Despite section 193, if an indictment contains a charge of conspiracy to commit an offence and another charge alleging the commission of that offence, the court must order that the charge of 20 conspiracy be tried separately from the other charge, unless the court considers that it would be in the interests of justice to try those charges together. 196 Other powers of court not affected 25 Any power of the court under section 165, 193 or 195 is in addition to any other power of the court for the same or similar purposes. 197 Order for legal representation for accused (1) In this section-- 30 private law practice has the same meaning as in the Legal Aid Act 1978; private legal practitioner has the same meaning as in the Legal Aid Act 1978. 561013B.I-3/12/2008 168 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 197 (2) Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in 5 respect of a trial is not a ground for an adjournment or stay of the trial. (3) If a court is satisfied at any time that-- (a) it will be unable to ensure that the accused will receive a fair trial unless the accused is 10 legally represented in the trial; and (b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal 15 representation in the trial-- the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been 20 provided. (4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (3). 25 (5) Despite anything to the contrary in subsection (3)-- (a) if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to 30 the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (3); 561013B.I-3/12/2008 169 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 198 (b) the legal burden of proof for the purposes of subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused; 5 (c) for the purposes of proving under subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property-- (i) that is subject to the effective control of 10 the accused (whether or not the accused has an interest in it); or (ii) in which the accused has an interest-- as determined in accordance with section 9 or 10 of the Confiscation Act 1997; 15 (d) the conditions that may be specified by the court under subsection (3) do not include conditions relating to the identity, number or remuneration of persons representing the accused. 20 (6) A court must give Victoria Legal Aid an opportunity to appear and be heard before an order is made under subsection (3). (7) Despite anything to the contrary in section 17A of the Supreme Court Act 1986, Victoria Legal Aid 25 may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge. 198 Order for taking evidence from a witness before 30 trial (1) At any time except during trial, a party to a criminal proceeding may apply to the court for an order that the evidence (including cross- examination and re-examination) of a person be 35 taken at a time and place fixed by the court. 561013B.I-3/12/2008 170 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 198 (2) An application may be made under subsection (1) only if-- (a) the person was not available to be examined as a witness at the committal hearing; or 5 (b) a statement or transcript from the person was not included in a hand-up brief served on the accused under Part 4.4; or (c) it is reasonably anticipated that the person will be unavailable to give evidence at the 10 trial of the accused; or (d) the parties agree that the evidence of the person should be taken before the trial of the accused; or (e) for any other reason the court considers that 15 it is appropriate that the evidence of the person should be taken before the trial of the accused. (3) An application under subsection (1) must state the grounds on which an order is sought. 20 (4) The court must not make an order referred to in subsection (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken. (5) An order referred to in subsection (1) may include 25 a direction that the evidence of the person is to be given or recorded in a specified manner in accordance with the Evidence Act 1958. Note Part VI of the Evidence Act 1958 provides for the recording 30 of evidence. 561013B.I-3/12/2008 171 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 199 Division 4--Procedure for pre-trial orders and other decisions 199 Court may make orders and other decisions before trial 5 (1) At any time before trial, the court may hear and decide any issue with respect to the trial that the court considers appropriate, including-- (a) an issue of law or procedure that arises or is anticipated to arise in the trial, including an 10 issue as to admissibility of evidence; (b) an issue of fact, or mixed law and fact, that may be determined lawfully by a judge alone without a jury, including an issue as to admissibility of evidence; 15 (c) an application for an order that may be made in relation to the trial under this or any other Act or at common law, including an application to quash a charge in the indictment; 20 (d) any other issue with respect to the trial. (2) Subsection (1) applies despite sections 181, 183, 184 and 200. (3) An order or other decision made at a directions hearing or other pre-trial hearing has the same 25 effect as if it had been made after the commencement of the trial. (4) Nothing in this section limits the power of the court to make any order or other decision that it has power to make otherwise than under 30 subsection (1). Note Section 192A of the Evidence Act 2008 provides for advance rulings in relation to evidence proposed to be adduced in a proceeding. 561013B.I-3/12/2008 172 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 200 200 Disclosure of pre-trial issues (1) If a party intends to raise an issue referred to in section 199(1)(a), (b), (c) or (d), whether before or during trial, the party must-- 5 (a) first, notify the other party of the issue or the order sought, in order to ascertain whether the issue will be in dispute or the order will be opposed; and (b) secondly, notify the court of the issue or the 10 order sought. (2) Notification under subsection (1)(b) must include-- (a) confirmation that the other party has been notified of the issue or the order sought; and 15 (b) information, if available, as to whether the issue is in dispute or the order is opposed. (3) Notification under subsection (1) must occur-- (a) as soon as possible after the party becomes aware of the issue and at least 14 days before 20 the day on which the trial of the accused is listed to commence; or (b) if the party is not aware of the issue within the period referred to in paragraph (a), as soon as possible after the party becomes 25 aware of it. 201 Court may decide pre-trial issue without a hearing (1) If-- (a) the court is notified of an issue under section 200(1) at least 14 days before the day on 30 which the trial of the accused is listed to commence; and 561013B.I-3/12/2008 173 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 202 (b) all the parties to the proceeding agree-- the court may decide the issue entirely on the basis of written submissions, without the appearance of the parties. 5 (2) If the parties agree to have the issue decided on the basis of written submissions, at least 10 days before the day on which the trial of the accused is listed to commence, the party who raised the issue must file in court and serve on all other parties a 10 copy of that party's submission. (3) Within 5 days after a party is served with a copy of a submission under subsection (2), that party must file in court and serve on all other parties a copy of a written submission in reply. 15 (4) Within 3 days after a party is served with a written submission in reply under subsection (3), that party must file in court and serve on all other parties a copy of a written submission in response to the reply. 20 (5) If an issue could be decided in accordance with subsection (1) but the parties do not agree to do so, at least 10 days before the day on which the trial of the accused is listed to commence, the party who raised the issue must-- 25 (a) notify the court that agreement has not been reached; and (b) request the court to conduct a directions hearing. 202 Hearing of application for exclusion of evidence 30 On the hearing of an application by the accused for the exclusion of evidence, the court may hear evidence called on behalf of the accused before it hears evidence called on behalf of the prosecution. 561013B.I-3/12/2008 174 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 203 203 Judge at pre-trial hearing need not be trial judge The judge who constitutes the court at a directions hearing or other pre-trial hearing held in connection with the trial of an accused need not be 5 the trial judge on the trial of the accused. 204 Pre-trial orders and other decisions generally binding on trial judge An order or other decision made at a directions hearing or other pre-trial hearing by a judge who 10 is not the trial judge is binding on the trial judge unless the trial judge considers that it would not be in the interests of justice for the order or other decision to be binding. 205 Pre-trial orders and other decisions may be applied 15 in new trial (1) If a new trial is held, the court may treat any order or other decision made at a directions hearing or other pre-trial hearing held in connection with the earlier trial as if it had been made at a directions 20 hearing or other pre-trial hearing held in connection with the new trial. (2) Despite subsection (1), the court need not treat an order or other decision in the manner set out in subsection (1) if the court considers that to do 25 so-- (a) would be inconsistent with any order or decision made or direction given on an appeal; or (b) would otherwise not be in the interests of 30 justice. 561013B.I-3/12/2008 175 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.5--Pre-trial Procedure s. 206 206 Procedure if prosecution proposes not to lead evidence (1) This section applies if, before the trial of an accused commences, the accused is arraigned and 5 pleads not guilty to a charge in respect of which the prosecution proposes not to lead evidence. (2) The prosecution must inform the court that the prosecution proposes not to lead evidence on the charge. 10 (3) The court must direct that an entry of not guilty be made on the record in respect of the charge. (4) An entry of not guilty under subsection (3) has the same effect as if it were the verdict of a jury on the trial of the accused on that charge. 15 (5) This section does not limit the power to discontinue a prosecution under section 177. __________________ 561013B.I-3/12/2008 176 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.6--Sentence Indication s. 207 PART 5.6--SENTENCE INDICATION 207 Court may give sentence indication At any time after the indictment is filed, the court may indicate that, if the accused pleads guilty to 5 the charge on the indictment at that time or another charge, the court would or would not (as the case may be) be likely to impose on the accused a sentence of imprisonment that commences immediately. 10 Note Section 18 of the Supreme Court Act 1986 and section 80 of the County Court Act 1958 enable the court to close a proceeding to the public. 208 Application for sentence indication 15 (1) A sentence indication under section 207-- (a) may be given only on the application of the accused; and (b) may be given only once during the proceeding, unless the prosecutor otherwise 20 consents. (2) An application under subsection (1)(a) may be made only with the consent of the prosecutor. (3) If an application under subsection (1)(a) is made in respect of a charge that is not on the indictment, 25 the accused must specify the charge in the application. (4) The court may refuse to give a sentence indication under section 207. 561013B.I-3/12/2008 177 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.6--Sentence Indication s. 209 209 Effect of sentence indication (1) If-- (a) the court indicates that it would not be likely to impose on the accused a sentence of 5 imprisonment that commences immediately; and (b) the accused pleads guilty to the charge for the offence at the first available opportunity-- 10 the court, when sentencing the accused for the offence, must not impose a sentence of imprisonment that commences immediately. (2) If-- (a) the court gives a sentence indication under 15 section 207; and (b) the accused does not plead guilty to the charge for the offence at the first available opportunity-- at trial the court must be constituted by a different 20 judge, unless all the parties otherwise agree. (3) A sentence indication does not bind the court on any hearing before the court constituted by a different judge. (4) A decision to give or not to give a sentence 25 indication is final and conclusive. (5) An application for a sentence indication and the determination of the application are not admissible in evidence against the accused in any proceeding. 30 (6) This section does not affect any right to appeal against sentence. __________________ 561013B.I-3/12/2008 178 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 210 PART 5.7--TRIAL Division 1--Preliminary 210 When trial commences (1) A trial commences when the accused pleads not 5 guilty on arraignment in the presence of the jury panel in accordance with section 217. (2) If a jury panel is split into 2 or more parts under section 30(5) of the Juries Act 2000, the trial commences when the accused pleads not guilty on 10 arraignment in the presence of the first part of the jury panel that is present in court. Note Section 215 sets out how and when arraignment occurs. 211 Time limit for commencing trial for offences other 15 than sexual offences The trial of a person for an offence (other than a sexual offence) must commence-- (a) within 12 months after the day on which the person is committed for trial in respect of the 20 offence; or (b) if no committal proceeding in respect of the offence is held, within 12 months after the day on which the indictment against the person is filed; or 25 (c) if a new trial is ordered by the Court of Appeal, within 6 months after the day on which the order is made; or (d) if the period referred to in paragraph (a), (b) or (c) or any extension of that period is 30 extended under section 247, within the extended period. 561013B.I-3/12/2008 179 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 212 212 Time limits for commencing trials for sexual offences The trial of a person for a sexual offence must commence-- 5 (a) within 3 months after the day on which the person is committed for trial in respect of the offence; or (b) if no committal proceeding in respect of the offence is held, within 3 months after the day 10 on which the indictment against the person is filed; or (c) if a new trial is ordered by the Court of Appeal, within 3 months after the day on which the order is made; or 15 (d) if the period referred to in paragraph (a), (b) or (c), or any extension of that period is extended under section 247, within the extended period. 213 Powers of trial judge not affected 20 (1) Subject to section 204, a trial judge may make any order or other decision during trial that could have been made under Division 3 or 4 of Part 5.5. (2) Nothing in this Act removes or limits any powers of a trial judge that existed immediately before the 25 commencement of this Act. 214 Non-appearance of corporate accused at trial (1) If a corporate accused does not appear on the date and at the time specified in an order under section 144(2)(d), the court, may, in its absence, proceed 30 with the trial and, if applicable, proceed to hear and determine a summary offence under Division 1 of Part 5.8 if-- 561013B.I-3/12/2008 180 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 215 (a) the court is satisfied that a notice under section 148 or 173 has been served on the accused; and (b) the court considers that it is appropriate to do 5 so. (2) If the court conducts a trial in the absence of a corporate accused, the court may dispense with or vary any requirement imposed by or under this Part. 10 Division 2--Arraignment 215 Arraignment (1) An accused is arraigned when the court-- (a) asks the accused whether the accused is the person named on the indictment; and 15 (b) reads out each charge on the indictment and asks the accused whether the accused pleads guilty or not guilty to the charge. (2) An accused may be arraigned or re-arraigned at any time. 20 216 Written pleas of guilty may be accepted (1) If an accused pleads guilty to one or more charges in the indictment and indicates an intention to plead guilty to one or more remaining charges-- (a) it is not necessary for those remaining 25 charges to be read to the accused; and (b) the court may accept pleas of guilty to the remaining charges in the indictment by written notice signed by the accused. (2) A court must not accept pleas of guilty under 30 subsection (1)(b) unless-- (a) the prosecution consents; and 561013B.I-3/12/2008 181 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 217 (b) the court considers that it is appropriate to do so, having regard to the number of charges in the indictment. (3) A plea of guilty accepted under this section has 5 the same effect as if it were entered on arraignment. 217 Arraignment in presence of jury panel If an accused has not pleaded guilty to all of the charges on an indictment-- 10 (a) the accused must be arraigned in the presence of the jury panel or, if a jury panel is split into 2 or more parts under section 30(5) of the Juries Act 2000, the first part of the jury panel that is present in court; and 15 (b) a jury for the trial must be empanelled from that jury panel. Notes 1 A trial commences when arraignment under this section occurs: see section 210. 20 2 The Juries Act 2000 sets out the process for empanelling a jury. 218 Special pleas in addition to plea of not guilty On arraignment, an accused may enter a special plea in addition to pleading not guilty. 25 219 Plea of guilty to alternative offence (1) On arraignment, an accused may plead not guilty to the offence charged but guilty to another offence of which the accused might be found guilty. 30 (2) The consequences of pleading guilty to another offence under subsection (1) are the same as if the other offence had been charged in the indictment. 561013B.I-3/12/2008 182 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 220 220 Form of plea of previous conviction or previous acquittal (1) In a plea of previous conviction, it is sufficient for an accused to state that the accused has been 5 lawfully convicted of the offence charged in the indictment. (2) In a plea of previous acquittal, it is sufficient for an accused to state that the accused has been lawfully acquitted of the offence charged in the 10 indictment. (3) The rules of common law with respect to autrefois convict and autrefois acquit continue in force in respect of pleas of previous conviction and previous acquittal, respectively. 15 221 Refusal to plead (1) If, on arraignment, an accused will not answer directly to a charge on the indictment, the court may order that a plea of not guilty be entered on behalf of the accused. 20 (2) A plea of not guilty entered under subsection (1) has the same effect as if the accused in fact had pleaded not guilty. Note See the Crimes (Mental Impairment and Unfitness to be 25 Tried) Act 1997 when an accused is or may be unfit to stand trial. Division 3--Assisting the jury 222 Judge may address jury At any time during a trial, the trial judge may 30 address the jury on-- (a) the issues that are expected to arise or have arisen in the trial; 561013B.I-3/12/2008 183 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 223 (b) the relevance to the conduct of the trial of any admissions made, directions given or matters determined prior to the commencement of the trial; 5 (c) any other matter relevant to the jury in the performance of its functions and its understanding of the trial process, including giving a direction to the jury as to any issue of law, evidence or procedure. 10 223 Jury documents (1) For the purpose of helping the jury to understand the issues or the evidence, the trial judge may order, at any time during the trial, that copies of any of the following are to be given to the jury in 15 any form that the trial judge considers appropriate-- (a) the indictment; (b) the summary of the prosecution opening; (c) the response of the accused to the summary 20 of the prosecution opening and the response of the accused to the notice of pre-trial admissions of the prosecution; (d) any document admitted as evidence; (e) any statement of facts; 25 (f) the opening and closing addresses of the prosecution and the accused; (g) any address of the trial judge to the jury under section 222; (h) any schedules, chronologies, charts, 30 diagrams, summaries or other explanatory material; Note See sections 29(4) and 50 of the Evidence Act 2008. 561013B.I-3/12/2008 184 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 224 (i) transcripts of evidence or audio or audiovisual recordings of evidence; (j) transcripts of any audio or audiovisual recordings; 5 (k) the trial judge's directions to the jury under section 238; (l) any other document that the trial judge considers appropriate. (2) The trial judge may specify in an order under 10 subsection (1) when any material is to be given to the jury. Division 4--Opening addresses 224 Opening address by prosecutor (1) The prosecutor must give an opening address to 15 the jury on the prosecution case against the accused before any evidence is given in the trial. (2) If documents have been served and filed by the prosecution under Part 5.5, the prosecutor must restrict himself or herself to the matters set out in 20 those documents when opening the prosecution case, unless the trial judge considers that there are exceptional circumstances. (3) For the purposes of subsection (2), a change of legal practitioner does not constitute exceptional 25 circumstances. (4) Despite subsection (2), the prosecutor is not restricted to a verbatim presentation of the summary of the prosecution opening as served and filed under Part 5.5. 30 (5) The trial judge may limit the length of the prosecution opening. 561013B.I-3/12/2008 185 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 225 225 Response of accused to prosecution opening (1) In all trials before a jury, immediately after the prosecutor's opening, the accused-- (a) if represented by a legal practitioner, must 5 present; (b) if not represented by a legal practitioner, may present-- to the jury the response of the accused to the prosecution opening prepared in accordance with 10 Part 5.5. (2) If documents have been served and filed by the defence under Part 5.5, the accused is restricted to the matters set out in those documents when presenting the response of the accused to the 15 prosecution opening, unless the trial judge considers that there are exceptional circumstances. (3) For the purposes of subsection (2), a change of legal practitioner does not constitute exceptional circumstances. 20 (4) Despite subsection (2), the accused is not restricted to a verbatim presentation of the response of the accused to the summary of the prosecution opening as served and filed under Part 5.5. 25 (5) The trial judge may limit the length of the response of the accused. Division 5--Case for the accused 226 Accused entitled to respond after close of prosecution case 30 After the close of the case for the prosecution, an accused is entitled-- (a) to make a submission that there is no case for the accused to answer; 561013B.I-3/12/2008 186 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 227 (b) to answer the charge by choosing to give evidence or call other witnesses to give evidence or both; (c) not to give evidence or call any witnesses. 5 227 Election when accused is legally represented If the accused is represented by a legal practitioner, at the close of the case for the prosecution, the trial judge may question the legal practitioner to determine which of the options 10 referred to in section 226 the accused elects to take. 228 Election when accused is not legally represented (1) If an accused is not represented by a legal practitioner, immediately after the close of the 15 case for the prosecution and in the absence of the jury, the trial judge must inform the accused, in a manner that is likely to be understood by the accused, that-- (a) the accused has the right to answer the 20 charge and must choose either-- (i) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge 25 and then to respond to any questions from the prosecution or the court about the evidence of the accused; or (ii) to say nothing in answer to the charge; and 30 (b) in either case, the accused may call any witnesses to give evidence at the trial. (2) After giving the information referred to in subsection (1), the trial judge must ask the accused what the accused wants to do. 561013B.I-3/12/2008 187 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 229 229 Procedure for joint trials if no-case submission made (1) This section applies to a trial in which 2 or more accused are named on the indictment. 5 (2) After the close of the case for the prosecution, an accused who wishes to make a submission that there is no case for the accused to answer must do so at that time. (3) If, after the trial judge has ruled on all no case 10 submissions, 2 or more accused remain on trial, the accused named first on the indictment must advise the trial judge, in response to questioning under section 227 or 228, which of the options referred to in section 226(b) or (c) the accused 15 elects to take. (4) Each accused named subsequently on the indictment is not required to advise the trial judge of the election of that accused until the close of the case for the previously named accused. 20 (5) The cases of all accused must proceed according to the order in which the accused are named on the indictment, unless the trial judge otherwise orders. 230 Questioning to determine proper course of 25 proceeding (1) If the accused intends to call witnesses to give evidence at the trial, the accused must indicate, when called on by the trial judge to do so-- (a) the names of those witnesses (other than the 30 accused); and (b) the order in which those witnesses are to be called. 561013B.I-3/12/2008 188 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 231 (2) The accused must not present the case of the accused differently to the way indicated to the trial judge under subsection (1) without the leave of the trial judge. 5 231 Opening address of accused (1) If the accused intends to give evidence, or to call other witnesses on behalf of the accused, or both, the accused is entitled to give an opening address to the jury outlining the evidence that the accused 10 proposes to give or call. (2) If the accused gives an opening address, it must be given before the accused gives evidence or calls any other witnesses. (3) The trial judge may limit the length of the opening 15 address of the accused. (4) The accused is not required to give evidence before any other witness is called on behalf of the accused. Division 6--Giving of evidence 20 232 Manner of giving evidence (1) The trial judge may permit a person to give evidence-- (a) with the consent of the parties, by the witness reading from the statement of the 25 witness prepared in advance of giving evidence; (b) if the person is called in his or her capacity as an expert witness, by the presentation of audio or audiovisual material; 30 (c) by means of playing an audio or audiovisual recording; (d) in any other manner that the trial judge considers may be of assistance. 561013B.I-3/12/2008 189 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 233 (2) Nothing in subsection (1) precludes-- (a) in the case of subsection (1)(b), the questioning of an expert witness by cross- examination or otherwise before, during or 5 after a presentation; or (b) in the case of subsection (1)(c), if unanticipated issues arise during the trial, the trial judge making an order that the witness attend before the court. 10 (3) Nothing in this section affects the operation of section 41G and Part IIA of the Evidence Act 1958 and sections 29 and 50 of the Evidence Act 2008. 233 Introduction of evidence not previously disclosed 15 (1) If the trial judge gives leave to do so, the prosecutor or the accused may introduce at the trial evidence which was not disclosed in accordance with Part 5.5 and which represents-- (a) in the case of the prosecutor, a substantial 20 departure from the summary of the prosecution opening, if any, as served on the accused and filed in court; or (b) in the case of the accused, a substantial departure from-- 25 (i) the response of the accused to the summary of the prosecution opening; or (ii) the response of the accused to the notice of pre-trial admissions-- if any, as served on the prosecution and filed 30 in court. 561013B.I-3/12/2008 190 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 234 (2) If, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution having regard to-- 5 (a) the response of the accused to the summary of the prosecution opening; and (b) the response of the accused to the notice of pre-trial admissions-- as served on the prosecution and filed in court, the 10 trial judge may allow the prosecutor to call evidence in reply. (3) Nothing in this section limits any other power of the trial judge to allow the prosecutor to call evidence after the prosecutor has closed the 15 prosecution case. Division 7--Closing addresses and judge's directions to the jury 234 Prosecution closing address (1) The prosecution is entitled to address the jury for 20 the purpose of summing up the evidence-- (a) after the close of all evidence; and (b) before the closing address of the accused, if any, under section 235. (2) Subject to section 236, the prosecution is not 25 entitled to any further or other right to address the jury following the close of evidence. (3) The trial judge may limit the length of the closing address of the prosecution. 561013B.I-3/12/2008 191 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 235 235 Closing address of the accused (1) The accused is entitled to address the jury for the purpose of summing up the evidence-- (a) after the close of all evidence; and 5 (b) after the closing address of the prosecution, if any, under section 234. (2) The trial judge may limit the length of the closing address of the accused. 236 Supplementary prosecution address 10 (1) If, in the closing address of the accused under section 235, the accused asserts facts which are not supported by any evidence that is before the jury, the trial judge may grant leave to the prosecution to make a supplementary address to 15 the jury. (2) A supplementary address must be confined to replying to the assertion referred to in subsection (1). (3) The trial judge may limit the length of a 20 supplementary address. 237 Comment on departure or failure (1) Subject to subsections (2) and (3), the trial judge or, with the leave of the trial judge, a party may make any comment that the trial judge thinks 25 appropriate on-- (a) a departure referred to in section 233(1); or (b) a failure by a party to comply with a requirement of this Chapter or an order made under this Chapter. 30 (2) The trial judge may grant leave to a party to comment on a departure or failure only if satisfied that-- (a) the proposed comment is relevant; and 561013B.I-3/12/2008 192 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 238 (b) the proposed comment is not likely to produce a miscarriage of justice. (3) A comment made by the trial judge or a party must not-- 5 (a) in the case of a departure, suggest that an inference of guilt may be drawn from the departure except in those circumstances in which an inference of guilt might be drawn from a lie told by an accused; and 10 (b) in the case of a failure-- (i) suggest that an inference of guilt may be drawn from the failure except in those circumstances in which an inference of guilt might be drawn from 15 the failure of an accused to adduce evidence from a particular witness; or (ii) suggest that the failure may be taken into account in considering the probative value of the prosecution 20 evidence except in those circumstances in which a failure of an accused to give evidence or adduce evidence from a particular witness might be taken into account for that purpose. 25 238 Judge's directions to the jury At the conclusion of the closing address of the prosecution, the closing address of the accused and any supplementary prosecution address, the trial judge must give directions to the jury so as to 30 enable the jury to properly consider its verdict. 561013B.I-3/12/2008 193 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 239 Division 8--Alternative verdicts and discharge of jury from delivering verdict 239 Alternative verdicts on charges other than treason or murder 5 (1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another 10 offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence. (2) For the purposes of subsection (1), an allegation of an offence includes an allegation of an attempt 15 to commit the offence. 240 Judge may order that guilt in respect of alternative offences is not to be determined Despite section 421(1) of the Crimes Act 1958 and section 239, if the trial judge considers that it 20 is in the interests of justice to do so, the judge may order that the guilt of the accused in respect of all or any of the other offences of which the accused may be found guilty is not to be determined at the trial. 25 Note The Crimes Act 1958 contains other provisions concerning alternative verdicts. 241 When judge may enter finding of guilty or not guilty (1) If, during trial, an accused is re-arraigned and 30 pleads guilty to a charge on the indictment, the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of guilty be made on the record in respect of that charge. 561013B.I-3/12/2008 194 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.7--Trial s. 241 (2) If-- (a) during trial the prosecution informs the trial judge that the prosecution proposes not to lead evidence on a charge on the indictment; 5 or (b) at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment-- 10 the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge. (3) An entry of guilty under subsection (1) or an entry 15 of not guilty under subsection (2) has the same effect as if it were the verdict of a jury on the trial of the accused on that charge. __________________ 561013B.I-3/12/2008 195 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 242 PART 5.8--GENERAL Division 1--Hearing of charges for related and unrelated summary offences 242 Summary offence related to indictable offence 5 (1) If an accused before the Supreme Court or the County Court-- (a) pleads guilty to an indictable offence; or (b) is found guilty or not guilty of an indictable offence-- 10 the court may hear and determine a charge for a related summary offence before sentencing or otherwise dealing with the accused. (2) The court must hear and determine a charge for a related summary offence without a jury and in 15 accordance with Part 3.3, as far as practicable. (3) Without affecting the admissibility of any evidence which might be given apart from this subsection, on the hearing of a charge against an accused for a related summary offence, the court 20 may admit as evidence in relation to the charge-- (a) evidence given during the trial of the accused in respect of the indictable offence; (b) in the case of a plea of guilty to the indictable offence, the depositions and all 25 exhibits and all recordings referred to in section 139 that were admitted in evidence in the committal proceeding in relation to the indictable offence. (4) A party may adduce further evidence only with 30 the leave of the court. 561013B.I-3/12/2008 196 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 243 (5) If the court considers it appropriate to do so, the court may transfer a proceeding for a related summary offence back to the Magistrates' Court for hearing and determination. 5 (6) The court may impose any sentence in respect of a related summary offence that could be made by the Magistrates' Court. Notes 1 See the definition of related summary offence in section 3. 10 2 See the definitions of originating court and original jurisdiction in section 3 in relation to rights of appeal under Part 6.3. 243 Unrelated summary offence (1) The Supreme Court or the County Court may hear 15 and determine a charge against an accused for a summary offence that is not a related summary offence if the accused-- (a) is before the court in respect of an indictable offence; and 20 (b) consents to the court hearing and determining the charge for the summary offence; and (c) states an intention to plead guilty to the charge for the summary offence. 25 (2) If the accused consents to the court hearing and determining a charge for a summary offence that is not a related summary offence, the proceeding in respect of the charge is transferred from the Magistrates' Court to the Supreme Court or the 30 County Court, as the case may be. Note A charge-sheet for a summary offence may only be filed in the Magistrates' Court. See section 6. 561013B.I-3/12/2008 197 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 244 (3) The court must hear and determine the charge for the summary offence without a jury and in accordance with Part 3.3, as far as practicable. (4) If the accused-- 5 (a) does not plead guilty to the charge for the summary offence; or (b) states an intention to plead not guilty to the charge for the summary offence-- the court is to direct that the charge be transferred 10 to the Magistrates' Court for hearing and determination. (5) The court may impose any sentence in respect of the summary offence that could be imposed by the Magistrates' Court. 15 Note See the definitions of originating court and original jurisdiction in section 3 in relation to rights of appeal under Part 6.3. Division 2--Criminal record 244 Criminal record 20 (1) A criminal record must contain, in relation to each previous conviction-- (a) the date of the previous conviction; and (b) the court in which the previous conviction took place; and 25 (c) the place of sitting of that court; and (d) the offence committed; and (e) the sentence imposed. (2) If other offences were taken into account when a sentence was imposed in respect of a previous 30 conviction, a criminal record may contain a statement to that effect and the offences taken into account, including the number of offences. 561013B.I-3/12/2008 198 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 245 (3) A criminal record is inadmissible as evidence against the person to whom it relates in a proceeding for an offence unless the criminal record is signed by-- 5 (a) a member of the police force; or (b) a Crown Prosecutor; or (c) a member of staff of the Office of Public Prosecutions who is a legal practitioner; or (d) in the case of a proceeding commenced by 10 an informant-- (i) a person who is entitled to represent the informant and is a legal practitioner; or (ii) a public official. 245 Proof of previous convictions by criminal record 15 (1) If the prosecution intends to allege, in the event of a finding of guilt against a person, that the person has previous convictions, the prosecution may file the criminal record of the person in court at any time after the indictment is filed and before the 20 sentencing hearing commences. (2) If the criminal record of the person is not available before the sentencing hearing commences, the prosecution may file it in court at any time before sentencing, if the court considers that it is in the 25 interests of justice to do so. (3) If a person is found guilty of an offence and the criminal record of the person has been filed in court, the court must ask the person whether the person admits the previous convictions set out in 30 the criminal record. (4) A person may admit, orally or in writing on the criminal record, all or any of the previous convictions set out in the criminal record. 561013B.I-3/12/2008 199 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 246 (5) If the person admits to a previous conviction, the court may sentence the person accordingly. (6) If the person does not admit to a previous conviction, the prosecution may lead evidence to 5 prove the previous conviction. Note Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate. Division 3--Powers and obligations 10 246 Attendance of accused at hearings An accused must attend all hearings conducted under this Chapter in the criminal proceeding against the accused unless excused under section 330. 15 247 Power to extend or abridge time (1) The court, by order, may extend or abridge any time fixed-- (a) by or under this Chapter; or (b) by any order extending or abridging time 20 made under this section-- if the court considers that it is in the interests of justice to do so. (2) An extension of the time for commencement of a trial for a sexual offence must not exceed 25 3 months. (3) It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgment of time. 30 (4) The court may extend time under subsection (1) before or after the time expires. 561013B.I-3/12/2008 200 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 248 (5) More than one extension of time may be granted under subsection (1). (6) Unless the court otherwise orders, no material in support of an order under subsection (1) need be 5 filed. 248 Parties must inform Juries Commissioner of certain events If a party to a criminal proceeding listed for trial before a jury becomes aware of any event that 10 affects-- (a) whether or not a jury will be required for the trial; or (b) when a jury will be required for the trial; or (c) the dates on which persons will be required 15 to attend for jury service-- the party must inform the Juries Commissioner as soon as practicable after the party becomes aware of the event. 249 Counsel required to retain brief for trial 20 (1) A legal practitioner who has been briefed or otherwise agreed to appear for an accused at a trial must, at least 7 days before the day on which the trial is due to commence, advise the court of his or her intention to appear for the accused. 25 (2) A legal practitioner may only relinquish a brief to appear or withdraw from an agreement to appear for an accused within 7 days before the day on which the trial is due to commence with the leave of the court. 30 (3) On an application for leave under subsection (2), the court may make an order as to costs to be paid personally by the legal practitioner if the court considers that in the circumstances of the case-- 561013B.I-3/12/2008 201 BILL LA INTRODUCTION 3/12/2008

Criminal Procedure Bill 2008 Part 5.8--General s. 250 (a) the agreement to appear at trial for the accused or the acceptance of a brief to appear for the accused at trial is unreasonable; or 5 (b) the withdrawal from an agreement to appear for the accused at trial or the relinquishment of a brief to appear for the accused at trial is unreasonable. 250 Complaints about legal practitioners 10 If a court considers that a legal practitioner for a party has failed to comply with-- (a) a requirement of Part 5.5 or an order made under Part 5.5, including an order or requirement under section 181; or 15 (b) an order under section 352 or 358-- the court may make a complaint about the legal practitioner's conduct to the Legal Services Commissioner under Chapter 4 of the Legal Profession Act 2004. 20 251 Judge at earlier trial not prevented from presiding at later trial (1) This section applies if an offence charged in an indictment and an offence that was tried at an earlier trial are the same or related offences. 25 (2) The trial judge at an earlier trial, or a judge who conducted a directions he