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PARLIAMENT OF VICTORIA
Magistrates' Court (Committal Proceedings) Act
2000
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENTS TO THE MAGISTRATES' COURT
ACT 1989 3
4. Time for service of summonses 3
5. Granting of bail when defendant elects to stand trial without a
committal proceeding 3
6. Compulsory examination procedure 3
7. Provisions applicable to committal proceedings 6
8. New clause 16 substituted in Schedule 5 10
9. New clause 24A inserted in Schedule 5 12
10. Transitional provisions 15
PART 3--MISCELLANEOUS 18
11. Supreme Court and County Court may determine summary
offences 18
12. New section 594 inserted in Crimes Act 1958 18
594. Transitional provision--Magistrates' Court
(Committal Proceedings) Act 2000 18
13. Amendment of special rules of evidence in relation to certain
offences which relate to rape 19
14. New section 155 inserted in Evidence Act 1958 19
155. Transitional provision--Magistrates' Court
(Committal Proceedings) Act 2000 19
ENDNOTES 20
i
541120B.I1-27/10/2000 BILL LA CIRCULATION 27/10/2000
PARLIAMENT OF VICTORIA
Initiated in Assembly 25 October 2000
A BILL
to amend the Magistrates' Court Act 1989, the Crimes Act 1958 and
the Evidence Act 1958 and for other purposes.
Magistrates' Court (Committal
Proceedings) Act 2000
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Magistrates' Court Act 1989 so as to make
5 further reforms to the committal process.
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2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
5 operation before 1 July 2001, it comes into
operation on that day.
3. Principal Act
See:
In this Act, the Magistrates' Court Act 1989 is Act No.
called the Principal Act. 51/1989.
Reprint No. 6
10 as at
1 July 1999
and
amending
Act Nos
35/1999,
39/1999,
44/1999,
1/2000,
49/2000 and
51/2000.
15 LawToday:
www.dms.
dpc.vic.
gov.au
_______________
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s. 4
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PART 2--AMENDMENTS TO THE MAGISTRATES' COURT
ACT 1989
4. Time for service of summonses
(1) In section 34(1) of the Principal Act, for
5 paragraph (a) substitute--
"(a) must be served--
(i) in the case of a charge of an indictable
offence in respect of which the registrar
has fixed a committal mention date, at
10 least 7 days before that date or such
other time before that date as is
prescribed by the regulations; and
(ii) in any other case, at least 14 days
before the mention date; and".
15 (2) In section 35(4) of the Principal Act, after "7
days" insert "or, in the case of service of a
summons to which section 34(1)(a)(i) applies, at
least 48 hours".
5. Granting of bail when defendant elects to stand trial
20 without a committal proceeding
In section 56(7)(a) and (b) of the Principal Act,
after "trial" insert "or a date before trial fixed by
the Court".
6. Compulsory examination procedure
25 (1) In section 56A(1) of the Principal Act, for
"without notice to the defendant" substitute ", if
satisfied that it is in the interests of justice to do
so".
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(2) In section 56A of the Principal Act, after sub-
section (1) insert--
"(1A) An application under sub-section (1)--
(a) may only be made if a charge has been
5 filed against the defendant in relation to
the matter to which the proposed
examination relates; and
(b) may be made with or without notice to
the defendant.
10 (1B) In an application under sub-section (1), the
informant must advise the Court of the
following information--
(a) whether the person sought to be
examined--
15 (i) has been asked by the prosecution
to make a statement; and
(ii) has refused to do so; and
(b) whether the informant is aware whether
the person sought to be examined has
20 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
25 proposed examination relates; and
(d) whether the person sought to be
examined has been made aware of the
application; and
(e) any other information prescribed by the
30 Rules.
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(1C) If the person sought to be examined in an
application under sub-section (1) is or has
been a suspect with respect to the matter to
which the proposed examination relates, the
5 informant must give reasonable notice of the
application to that person or a legal
practitioner representing that person,
whether or not any charge against that
person has been filed or determined.".
10 (3) In section 56A(2) of the Principal Act--
(a) in paragraph (c), omit "or on a proceeding
held under an order made on such an
application";
(b) at the end of paragraph (c) insert--
15 "; and
(d) may attend a proceeding held under an
order made under sub-section (1) and,
if the Court determines there are
exceptional circumstances, may address
20 the Court on the proceeding personally
or through a legal practitioner
representing him or her.".
(4) In section 56A(3) of the Principal Act--
(a) for "An" substitute "Notice in the form
25 prescribed by the Rules of an";
(b) after "served" insert "on the defendant and".
(5) In section 56A of the Principal Act, after sub-
section (4) insert--
"(4A) A person ordered to attend the Court under
30 sub-section (1) may be represented on a
proceeding held under the order by a legal
practitioner and may address the Court on
the proceeding personally or through a legal
practitioner representing him or her.".
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(6) In section 56A(5)(a) of the Principal Act, after
"given" insert "by way of examination-in-chief
and".
7. Provisions applicable to committal proceedings
5 (1) In clause 5(1) of Schedule 5 to the Principal Act,
for "in writing of the defendant, or a legal
practitioner representing the defendant, given"
substitute "of the defendant, given in writing by
the defendant if the defendant is not represented
10 by a legal practitioner or, if the defendant is
represented by a legal practitioner, given in
writing by that legal practitioner to the informant
and the Director of Public Prosecutions".
(2) In clause 5(6) of Schedule 5 to the Principal Act,
15 for "as soon as practicable" substitute "within
5 days".
(3) In clause 6(1)(k) of Schedule 5 to the Principal
Act, for "admissible statements or other
documents" substitute "statements or other
20 documents that are capable of being admitted in
evidence and are".
(4) In clause 7(1) of Schedule 5 to the Principal Act,
for "at least 28" substitute "or, if the defendant is
represented by a legal practitioner, on that legal
25 practitioner, at least 42".
(5) In clause 7(3) of Schedule 5 to the Principal Act,
for "as soon as practicable" substitute "within
5 days".
(6) In clause 8(1) of Schedule 5 to the Principal Act,
30 for paragraph (b)(iii) substitute--
"(iii) an officer at Customs level 2 or higher in the
Australian Customs Service; or
(iv) an officer at Australian Public Service level 5 or
higher in the Australian Securities and Investments
35 Commission; or
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(v) an Investigation Officer, or a Senior Investigation
Officer or the Manager, Investigations in the Health
Insurance Commission; or
(vi) an officer at Australian Public Service level 5 or
5 higher who is an investigator in the Australian
Taxation Office; or
(vii) any other person, or a member of a class of persons,
prescribed by the Rules--".
(7) In clause 8(1) of Schedule 5 to the Principal Act,
10 at the end of paragraph (b) insert--
"; or
(c) in a form, and attested to in a manner, prescribed by
the Rules.".
(8) In clause 9(1) of Schedule 5 to the Principal Act,
15 for ", including a recording of an examination
under section 56A," substitute "of an examination
under section 56A or of the evidence-in-chief of a
witness under section 37B of the Evidence Act
1958".
20 (9) In clause 12(1) of Schedule 5 to the Principal
Act--
(a) omit "that the defendant";
(b) in paragraph (a)--
(i) for "intends" substitute "that the
25 defendant intends";
(ii) for "the scope and purpose of the
proposed questioning and how it has
substantial relevance to the facts in
issue" substitute "an issue to which the
30 proposed questioning relates, a reason
as to why the evidence of the witness is
relevant to that issue and why cross-
examination on that issue is justified";
(c) in paragraph (b), for "requires" substitute
35 "that the defendant requires";
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(d) in paragraph (c) for "is prepared" substitute
"that the defendant is prepared".
(10) In clause 12 of Schedule 5 to the Principal Act,
after sub-clause (2) insert--
5 "(2A) If the defendant gives notice under sub-clause (1)(a)
that the defendant intends to seek leave to cross-
examine a witness, the informant must, no later than 7
days before the committal mention date, give notice in
writing to the defendant and the registrar stating--
10 (a) whether the informant consents to or opposes
leave being granted; and
(b) if the informant opposes leave being granted,
the reasons for the opposition.".
(11) In clause 12(5) of Schedule 5 to the Principal Act,
15 for "because of the existence of exceptional
circumstances" substitute "in the interests of
justice".
(12) In clause 13 of Schedule 5 to the Principal Act,
for sub-clause (4) and (5) substitute--
20 "(4) In determining whether to grant leave to cross-
examine a witness to whom this clause applies, the
Court may have regard to whether the informant
consents to or opposes leave being granted.
(5) The Court must not grant leave to cross-examine a
25 witness to whom this clause applies unless satisfied
that--
(a) the defendant has identified an issue to which
the proposed questioning relates and has
provided a reason why the evidence of the
30 witness is relevant to that issue; and
(b) cross-examination of the witness on that issue
is justified.
(5A) In determining whether cross-examination is justified
the Court must have regard to the need to ensure
35 that--
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(a) the prosecution case is adequately disclosed;
and
(b) the issues are adequately defined; and
(c) the evidence is of sufficient weight to support a
5 conviction for the offence with which the
defendant is charged; and
(d) a fair trial will take place if the matter proceeds
to trial, including that the defendant is able
adequately to prepare and present a defence;
10 and
(e) matters relevant to a potential plea of guilty are
clarified; and
(f) matters relevant to a potential nolle prosequi
are clarified; and
15 (g) trivial, vexatious or oppressive cross-
examination is not permitted; and
(h) the interests of justice are otherwise served.
(5B) In addition to the requirements of sub-clause (5A), if
the witness is under 18 years of age the Court must
20 have regard to the following matters--
(a) the need to minimise the trauma that might be
experienced by the witness in giving evidence;
and
(b) any relevant condition or characteristic of the
25 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 subject
and of which the Court is aware; and
30 (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
witness; and
35 (f) the extent of any proposed admissions; and
(g) the probative value of the proposed evidence of
the witness; and
(h) the issues likely to be in dispute; and
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(i) the weight of the proposed evidence of the
witness; and
(j) any statements of other witnesses that
contradict the proposed evidence of the
5 witness.
(5C) Subject to clause 16, a defendant 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.".
10 (13) In clause 24(1)(b) of Schedule 5 to the Principal
Act, after "trial" insert "or a date before trial fixed
by the Court".
(14) Clause 26 of Schedule 5 to the Principal Act is
revoked.
15 8. New clause 16 substituted in Schedule 5
For clause 16 of Schedule 5 to the Principal Act,
substitute--
"16. Cross-examination of witnesses
(1) Without limiting any other power that it has to
20 forbid or disallow questions, the Court may
disallow any question asked of a witness in the
course of cross-examination of a witness in a
committal proceeding if it appears to the
Court--
25 (a) that the defendant 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
30 (b) that the question is not justified; or
(c) that the question is unduly repetitive of an
earlier question.
(2) In determining whether a question is justified
the Court must have regard to the need to
35 ensure that--
(a) the prosecution case is adequately
disclosed; and
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(b) the issues are adequately defined; and
(c) the evidence is of sufficient weight to
support a conviction for the offence with
which the defendant is charged; and
5 (d) a fair trial will take place if the matter
proceeds to trial, including that the
defendant is able adequately to prepare
and present a defence; and
(e) matters relevant to a potential plea of
10 guilty are clarified; and
(f) matters relevant to a potential nolle
prosequi are clarified; and
(g) trivial, vexatious or oppressive
questioning is not permitted; and
15 (h) the interests of justice are otherwise
served.
(3) In addition to the requirements of sub-clause
(2), if the witness is under 18 years of age the
Court must have regard to the following
20 matters--
(a) the need to minimise the trauma that
might be experienced by the witness in
giving evidence; and
(b) the need to prevent the witness being
25 asked a question that is--
(i) misleading or confusing; or
(ii) phrased in inappropriate language;
or
(iii) unduly annoying, harassing,
30 intimidating, offensive, oppressive
or repetitive; and
(c) any relevant condition or characteristic of
the witness, including, age, culture,
personality, education and level of
35 understanding; and
(d) any mental, intellectual or physical
disability to which the witness is or
appears to be subject and of which the
Court is aware; and
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(e) the importance of the witness to the case
for the prosecution; and
(f) the existence, or lack, of evidence that
corroborates the proposed evidence of the
5 witness; and
(g) the extent of any admissions; and
(h) the probative value of the proposed
evidence of the witness; and
(i) the issues in dispute; and
10 (j) the weight of the proposed evidence of
the witness; and
(k) any statements of other witnesses that
contradict the proposed evidence of the
witness.".
15 9. New clause 24A inserted in Schedule 5
After clause 24 of Schedule 5 to the Principal Act
insert--
"24A. Evidence taken after accused person directed to be
tried
20 (1) If a defendant has been committed for trial, the
Director of Public Prosecutions or the
defendant may apply to the Court for an order
that the evidence of a person be taken at a time
and place fixed by the Court.
25 (2) An applicant for an order under sub-section (1)
must give notice of the application, in the form
prescribed by the Rules, to the other party no
later than 14 days before the hearing of the
application or such lesser period before then as
30 is agreed to by the other party.
(3) The Director of Public Prosecutions or the
defendant (as the case requires) to whom notice
of an application under sub-section (1) is given
may attend the hearing of the application and
35 address the Court on it.
(4) The Court must not make an order under sub-
clause (1) in respect of a person who--
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(a) was examined as a witness at the
committal proceeding; or
(b) made a statement the contents of which
were admitted as a record of evidence at
5 the committal proceeding under clause
18(1)(a) or (b); or
(c) gave evidence-in-chief in accordance with
section 37B of the Evidence Act 1958
and the contents of the recording were
10 admitted as a record of evidence at the
committal proceeding under clause
18(1)(d)--
unless the person subsequently makes a
statement or a supplementary statement the
15 truthfulness of which has been attested to.
(5) The Court must not make an order under sub-
clause (1) in respect of a person who
subsequently makes a statement or a
supplementary statement unless it is satisfied
20 that in relation to that statement--
(a) there is an issue to which the evidence
proposed to be taken relates; and
(b) there is a reason as to why the evidence of
the person is relevant to that issue; and
25 (c) taking of evidence from the person is
justified.
(6) In determining whether the taking of evidence
from the person is justified the Court must
have regard to the need to ensure that--
30 (a) the prosecution case is adequately
disclosed; and
(b) the issues are adequately defined; and
(c) a fair trial will take place if the matter
proceeds to trial, including that the
35 defendant is able adequately to prepare
and present a defence; and
(d) matters relevant to a potential plea of
guilty are clarified; and
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(e) matters relevant to a potential nolle
prosequi are clarified; and
(f) trivial, vexatious or oppressive taking of
evidence is not permitted; and
5 (g) the interests of justice are otherwise
served.
(7) In addition to the requirements of sub-clause
(6), if the witness is under 18 years of age the
Court must have regard to the following
10 matters--
(a) the need to minimise the trauma that
might be experienced by the witness in
giving evidence; and
(b) any relevant condition or characteristic of
15 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
20 appears to be 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
25 corroborates the proposed evidence of the
witness; and
(f) the extent of any proposed admissions;
and
(g) the probative value of the proposed
30 evidence of the witness; and
(h) the issues in dispute; and
(i) the weight of the proposed evidence of
the witness; and
(j) any statements of other witnesses that
35 contradict the proposed evidence of the
witness.
(8) If the Director of Public Prosecutions or the
defendant obtains an order under sub-clause
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s. 9
10
Act No.
(1), the other party may attend the hearing of
the proceeding and address the Court.
(9) If the defendant obtains an order under sub-
clause (1) with respect to the examination of a
5 prosecution witness, the informant must ensure
that the witness attends at a time and place
fixed by the Court for examination.
(10) The Court may, on making an order under sub-
section (1) or at the examination, make any
10 order it considers necessary or in the interests
of justice with respect to the examination or
cross-examination of the person giving
evidence under this clause.
(11) A person cross-examining a witness giving
15 evidence under this clause is not limited to
cross-examining the witness on the issue with
respect to which the order was made under
sub-clause (1).
(12) Clause 16 applies in relation to the cross-
20 examination of a person giving evidence under
this clause as if the person were a witness in
the course of cross-examination in a committal
proceeding.
(13) The evidence of a person given under this
25 clause must be given and recorded in the same
manner as evidence at a committal proceeding.
(14) The record of the evidence of any person given
under this clause must be forwarded as soon as
possible by the registrar at the venue of the
30 Court at which the committal proceeding was
held to the Director of Public Prosecutions and
has effect and must be treated as if it were a
record of evidence given at the committal
proceeding.".
35 10. Transitional provisions
At the end of Schedule 8 to the Principal Act
insert--
"22.(1) The amendments of sections 34 and 35 of this Act
made by section 4 of the Magistrates' Court
40 (Committal Proceedings) Act 2000 apply only
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Magistrates' Court (Committal Proceedings) Act 2000
s. 10
Act No.
with respect to summonses issued on or after the
commencement of that section of that Act.
(2) The amendments of section 56A of this Act made by
section 6 of the Magistrates' Court (Committal
5 Proceedings) Act 2000 apply only with respect to
applications made under section 56A(1), and to
proceedings held under orders made on such
applications, on or after the commencement of that
section of that Act.
10 (3) Subject to sub-clauses (4) to (8), an amendment of
Schedule 5 to this Act made by a provision of Part 2
of the Magistrates' Court (Committal
Proceedings) Act 2000 applies only with respect to
the hearing of charges filed in the Court on or after
15 the commencement of that provision.
(4) If a defendant has given a notice under clause
12(1)(a) of Schedule 5 to this Act before the
commencement of section 7(9) of the Magistrates'
Court (Committal Proceedings) Act 2000 but an
20 application for leave to cross-examine the witness
has not been made before that commencement, the
notice has effect on and after that commencement as
if it were a notice given in accordance with that
clause as amended by that Act and the application
25 for leave shall be made and determined in
accordance with Schedule 5 to this Act as amended
by that Act.
(5) If an application for leave to cross-examine a
witness at a committal proceeding has been refused
30 before the commencement of section 7(9) of the
Magistrates' Court (Committal Proceedings) Act
2000 but the committal proceeding has not been
held before that commencement, the Court may, on
the application of the defendant, grant leave to the
35 defendant to give a fresh notice under clause
12(1)(a) of Schedule 5 to this Act as amended by
that Act if satisfied that it is in the interests of justice
to do so.
(6) Subject to sub-clause (5), a notice that the defendant
40 intends to seek leave to cross-examine a witness at a
committal proceeding may be given, and an
application for leave to cross-examine a witness at a
committal proceeding may be made, on or after the
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Act No.
commencement of section 7(9) of the Magistrates'
Court (Committal Proceedings) Act 2000 in
accordance with Schedule 5 to this Act as amended
by that Act, irrespective of when the charge to
5 which the proceeding relates was filed in the Court.
(7) If leave to cross-examine a witness to whom clause
13 of Schedule 5 to this Act applies has been
granted before the commencement of section 8 of
the Magistrates' Court (Committal Proceedings)
10 Act 2000 but the cross-examination has not
commenced before that commencement, the
amendment of that Schedule made by that section
applies with respect to the cross-examination.
(8) Clause 24A of Schedule 5 to this Act, as inserted by
15 section 9 of the Magistrates' Court (Committal
Proceedings) Act 2000 applies irrespective of when
the defendant was committed for trial.".
__________________
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s. 11
Act No.
PART 3--MISCELLANEOUS
11. Supreme Court and County Court may determine
summary offences
See:
(1) Section 359AA(1) of the Crimes Act 1958 is Act No.
5 repealed. 6231.
Reprint No. 15
(2) In section 359AA(2) of the Crimes Act 1958 for as at 1
September
"hear and determine summarily any relevant" 1999
substitute "or the accused person hear and and
amending
determine summarily any". Act No.
26/1999.
10 (3) In section 359AA(3) of the Crimes Act 1958 LawToday:
omit "relevant" (wherever occurring). www.dms.
dpc.vic.
gov.au
12. New section 594 inserted in Crimes Act 1958
In Part 7 of the Crimes Act 1958, at the end of the
Part insert--
15 "594. Transitional provision--Magistrates' Court
(Committal Proceedings) Act 2000
The amendments of section 359AA of this
Act made by section 11 of the Magistrates'
Court (Committal Proceedings) Act 2000
20 apply to applications made under that section
on or after the commencement of that section
of that Act irrespective of when the charge
for the summary offence was filed under
section 26 of the Magistrates' Court Act
25 1989.".
18
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s. 13
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13. Amendment of special rules of evidence in relation to
certain offences which relate to rape
See: In section 37A(1) of the Evidence Act 1958, in
Act No.
Rule (5)(aa)(i)--
6246
Reprint No. 13
5 (a) after "Director of Public Prosecutions"
as at 1
September
insert "and, in the case of a committal
1999
proceeding, to the informant";
and
amending
(b) in sub-sub-paragraph (A), for "on or before
Act Nos
21/1999 and
the committal mention date" substitute "at
26/1999.
10 least 14 days before the date fixed by the
LawToday:
www.dms.
court for the cross-examination of the
dpc.vic.
witness".
gov.au
14. New section 155 inserted in Evidence Act 1958
After section 154 of the Evidence Act 1958
15 insert--
"155. Transitional provision--Magistrates' Court
(Committal Proceedings) Act 2000
The amendment of section 37A(1) of this
Act made by section 13 of the Magistrates'
20 Court (Committal Proceedings) Act 2000
applies to applications for leave under Rule
(2) made under that section on or after the
commencement of section 13 of that Act
irrespective of when the committal
25 proceeding is commenced or when any
offence to which the proceeding relates is
alleged to have been committed.".
19
541120B.I1-27/10/2000 BILL LA CIRCULATION 27/10/2000
Magistrates' Court (Committal Proceedings) Act 2000
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
20
541120B.I1-27/10/2000 BILL LA CIRCULATION 27/10/2000
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