Victorian Consolidated Legislation

Crimes Act 1958 - SECT 395

Trial where accused has previous convictions

395. Trial where accused has previous convictions



(1) In proceedings upon an indictment or presentment where the person being
tried has a previous conviction or where a count averring a previous
conviction has been added to the indictment or presentment, the following
provisions apply-

   (a)  the person shall be arraigned on only so much of the indictment or
        presentment as charges the offence;

   (b)  where-

   (i)  the person pleads not guilty; or

   (ii) the court orders a plea of not guilty to be entered on behalf of the
        person-

the jury shall be charged to inquire concerning only the offence with which
the person is charged;

   (c)  where the person pleads guilty or the jury returns a verdict of guilty
        and after the discharge of the jury (whether or not the jurors are
        still present) the person shall be asked whether he or she has
        previous convictions as alleged in the indictment or presentment;

   (d)  if, in response to questions put under paragraph (c), the person
        distinctly admits to the previous convictions the court may proceed to
        sentence the person accordingly;

   (e)  if, in response to questions put under paragraph (c) the person does
        not distinctly admit to the previous convictions-

   (i)  the prosecution may lead evidence to prove the previous convictions;
        and

   (ii) all questions concerning the alleged previous convictions shall be
        determined by the judge without jury; and

   (f)  Despite paragraphs (c) to (e), where the person has been found guilty
        of an offence punishable only with imprisonment for the term of his or
        her natural life, the person shall not be asked any questions
        concerning previous convictions.

(2) Where in proceedings upon indictment or presentment evidence of a previous
conviction of a person may be given, a certified statement of conviction may,
subject to subsection (4), be tendered in evidence.

(3) In subsection (2) certified statement of conviction means a certificate in
the prescribed form stating that in a specified court, on a specified day, a
person of the same name and date of birth as the person against whom it is
sought to be proved was convicted of a specified offence, or admitted
specified previous convictions.

(4) To be admissible in evidence, a certified statement of conviction must
purport to be signed-

   (a)  in the case of a previous conviction in the Magistrates' Court or the
        Children's Court-by a registrar of the Magistrates' Court or a
        registrar of the Children's Court;







   (b)  in the case of a previous conviction in the County Court-by the
        Registrar or a Deputy Registrar of the County Court;

   (c)  in the case of a previous conviction in the Supreme Court-by the
        Prothonotary or a Deputy Prothonotary of the Supreme Court; or

   (d)  in the case of a previous conviction in a court outside Victoria
        (whether or not in Australia)-by the officer having custody of the
        records of the court, or by the deputy of such officer.

(5) A certified statement of conviction tendered in evidence under subsection
(2) is sufficient evidence (unless the contrary is proved)-

   (a)  of the facts stated in the certificate; and

   (b)  that the person against whom the conviction is sought to be proved is
        the same person as the person referred to in the certificate.

(6) Where under subsection (1) a person may be asked whether he or she has a
previous conviction, the method of asking the question, in the Court's
discretion, shall be either-

   (a)  by the person being shown a document on which the alleged previous
        conviction is set out, showing-

   (i)  the date of the alleged previous conviction;

   (ii) the court which imposed the alleged previous conviction;

   (iii) the place of sitting of that court;

   (iv) the nature of the offence; and

   (v)  the sentence imposed; or

   (b)  by the alleged previous conviction being read to the person.

(7) Where upon the trial of a person on indictment or presentment the person
gives evidence of his or her good character, the court may permit evidence of
a previous conviction to be led before verdict.

(8) In this section previous conviction has the same meaning as in section
376.