Victorian Consolidated Legislation

Magistrates' Court Act 1989 - SCHEDULE 5

Section 56 PROVISIONS APPLICABLE TO COMMITTAL PROCEEDINGS

















1. Definitions and provision about service



(1) In this Schedule-

cognitive impairment includes impairment because of mental illness,
intellectual disability, dementia or brain injury;

committal mention date means the date on which a committal mention hearing is
held under clause 4; prescribed means prescribed by the Rules; registrar means
the registrar at the venue of the Court at which a committal proceeding is to
be held.

(2) If a legal practitioner has filed an appearance on behalf of a defendant
or has given notice in writing to the registrar that he or she is representing
a defendant or is willing to accept service of documents on behalf of a
defendant, a document required by this Schedule to be served personally on the
defendant must be taken to have been duly served on the defendant if it is
served on that legal practitioner by-

   (a)  leaving it at the business address of that practitioner with a person
        who apparently works there and who apparently is not less than 16
        years of age; or

   (b)  sending it by registered post to that practitioner at that
        practitioner's business address.

2. Power of Court to control committal proceedings

Without limiting its powers under section 136 or prejudicing the need for the
defendant to be dealt with fairly, the Court may at any stage of a committal
proceeding give any direction for the conduct of the proceeding which it
considers to be consistent with the interests of justice and conducive to-

   (a)  defining the issues in the proceeding; or

   (b)  the prompt and efficient disposal of the proceeding.







2A. Power to dispose with requirements where corporate defendant absent

Without limiting clause 2, if the Court conducts a committal proceeding in the
absence of a defendant that is a body corporate, it may dispense with or vary
any requirement imposed by or under this Schedule as necessary having regard
to the absence of the defendant.



3. Special mention hearing



(1) The purposes of a special mention hearing are to-

   (a)  ensure that the Court can adequately control and oversee the progress
        of the committal proceeding;

   (b)  provide an opportunity for the Court to set timetables for the
        expeditious and efficient progress of the committal proceeding;

   (c)  enable the expeditious committal of a defendant for trial if the
        defendant indicates an intention to plead guilty to the offence;

   (d)  provide an opportunity for a matter to be dealt with without the
        necessity to hold a committal proceeding.

(2) A date for a special mention hearing may be fixed in accordance with the
Rules.

(3) More than one special mention hearing may be held in the course of a
committal proceeding.







(4) Unless excused by the Court-

   (a)  the informant or his or her representative; and

   (b)  the defendant and the legal practitioners representing the defendant-

must attend a special mention hearing.

(5) A special mention hearing may be cancelled in accordance with the Rules.

4. Committal mention hearing



(1) At a committal mention hearing the Court may-

   (a)  immediately determine the committal proceeding;

   (b)  determine any application for a summary hearing under section 53(1) or
        offer a summary hearing under that section;

   (c)  hear and determine an application for leave to cross-examine a witness
        notice of which was given under clause 12(1);

   (d)  hear and determine any objection to disclosure of material;

   (e)  subject to subclause (7), adjourn the hearing of the committal
        proceeding to enable the defendant to obtain legal representation or
        for any other reason;

   (f)  fix another committal mention date.

(2) A committal mention hearing must be held in accordance with the Rules
within-

   (a)  the period of 3 months after the commencement of the proceeding for
        the offence if the offence is-

   (i)  an offence against section 38, 39 (if the complainant was under the
        age of 16 at the time of the alleged offence), 44, 45, 46, 47, 47A,
        51, 52 or 57 of the Crimes Act 1958; or

   (ii) an offence of attempting to commit an offence referred to in
        subparagraph (i); or

   (iii) an offence of committing an assault with intent to commit an offence
        referred to in subparagraph (i); or

   (b)  in the case of any other offence, the period of 6 months after the
        commencement of the proceeding for the offence-

or any other period fixed by the Court under subclause (3).

(3) The Court may fix a longer or shorter period for the holding of a
committal mention hearing but cannot do so after the period referred to in
subclause (2)(a) or (b) (as the case requires), or any other period previously
fixed under this subclause, has expired unless the Court is satisfied that,
having regard to all the circumstances of the case including the seriousness
of the offence and the overall interests of justice, another period should be
fixed because of the existence of exceptional circumstances or another good
and sufficient reason.

(4) Subclause (2) does not apply-

   (a)  if the defendant has failed to appear in accordance with the
        conditions of his or her bail; or

   (b)  if a warrant to arrest the defendant has been issued and at the end of
        the period referred to in subclause (2)(a) or (b) (as the case
        requires) from the commencement of the proceeding for the offence the
        defendant has not been arrested; or

   (c)  if the defendant requests that a committal mention hearing be held
        after the period referred to in subclause (2)(a) or (b) (as the case
        requires) and the Court is satisfied that in the interests of justice
        the request should be granted.

(5) If a committal mention hearing has not been held before the period
referred to in subclause (2)(a) or (b) (as the case requires), or any other
period fixed under subclause (3), has expired, the Court may, on the
application of the defendant, order the defendant to be discharged.

(6) Unless excused by the Court-

   (a)  the informant or his or her representative; and

   (b)  the defendant and the legal practitioners representing the defendant-

must attend a committal mention hearing.

(7) The Court must, in considering whether to adjourn the hearing of a
committal proceeding to enable the defendant to obtain legal representation,
have regard to whether the defendant has made reasonable attempts to obtain
legal representation.

4A. Committal case conference



(1) The Court may direct the parties to a committal proceeding to attend a
committal case conference to be conducted by a magistrate.

(2) Wherever practicable, a committal case conference should be conducted on
the committal mention date.

(3) The purpose of a committal case conference is to assist in the effective
management of the committal proceeding.

(4) The legal practitioners representing the informant and the defendant must
attend a committal case conference.





5. Plea brief may be served by informant



(1) With the consent of the defendant, given in writing by the defendant if
the defendant is not represented 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 at any
time before service of a hand-up brief under this Part, the informant may
serve personally on the defendant a plea brief containing-

   (a)  a copy of the charge-sheet relating to the offence; and

   (b)  a statement of the material facts relevant to the charge; and

   (c)  a copy of any statement relevant to the charge signed by the
        defendant, or a record of interview of the defendant, that is in the
        possession of the informant; and

   (d)  a copy, or a transcript, of any tape-recording within the meaning of
        Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958;
        and

   (e)  a copy or statement of any other evidentiary material that is in the
        possession of the informant relating to a confession or admission
        relevant to the charge made by the defendant.

(2) The informant must include in a plea brief a copy of any statement, that
is in his or her possession and the contents of which would be admissible in
evidence, made by an alleged victim of an offence to which the committal
proceeding relates about the circumstances of the offence.

(3) The informant may include in a plea brief any other statement relevant to
the charge that the informant wants to include in the circumstances.

(4) Clause 8 applies to a statement under subclause (2) or (3) in the same way
that it applies to a statement that the informant intends to tender at the
committal proceeding.

(5) Service of a plea brief may be proved in any manner in which service of a
summons to answer to a charge may be proved under section 35.

(6) The informant must file a copy of the plea brief with the registrar, and
forward another copy to the Director of Public Prosecutions, within 5 days
after service of the brief on the defendant.

6. Service of hand-up brief by informant



(1) Subject to subclause (2), the informant must serve on the defendant a
hand-up brief which must contain-

   (a)  a notice in the prescribed form-

   (i)  specifying the committal mention date; and

   (ii) explaining the nature of a committal proceeding and the purpose of the
        various stages; and

   (iii) explaining the importance of the defendant obtaining legal
        representation, describing the effect of clause 4(7) and providing
        details of how to contact Victoria Legal Aid; and

   (b)  a copy of the charge-sheet relating to the offence; and

   (c)  a list of the persons who have made statements that the informant
        intends to tender at the committal proceeding together with copies of
        those statements; and

   (d)  if a person has been examined under section 56A and the informant
        intends to tender a record of that examination at the committal
        proceeding, a transcript of the recording of the examination; and

   (e)  a copy of any document that the informant intends to produce as
        evidence; and

   (f)  a list of any things proposed to be tendered as exhibits; and

   (g)  a photograph of any proposed exhibit that cannot be described in
        detail in the list; and

   (h)  if the committal proceeding relates (wholly or partly) to a charge
        for-

   (i)  a sexual offence; or

   (ii) an offence which involves an assault on, or injury or a threat of
        injury to, a person- a transcript of any audio or video recording of a
        kind referred to in section 37B(2) of the Evidence Act 1958 that the
        informant intends to tender at the committal proceeding; and

        (i)    if the committal proceeding relates (wholly or partly) to a
               charge for a sexual offence, a copy of every statement made by
               the complainant to any member of the police force that relates
               to the offence with which the defendant is charged and contains
               an acknowledgment of its truthfulness; and

   (j)  a description of any forensic procedure, examination or test that has
        not yet been completed and on which the informant intends to rely as
        tending to establish the guilt of the defendant; and

   (k)  a list of any other statements or other documents that are capable of
        being admitted in evidence and are relevant to the charge that are
        available to the informant but on which the informant does not intend
        to rely; and

   (l)  any other list of material required by the Rules to be included in a
        hand-up brief.

(2) The informant is not required to serve a hand-up brief if he or she has
served a plea brief under clause 5 and the defendant pleads guilty to the
charge.

(3) Nothing in this clause takes away from any duty otherwise imposed on the
prosecution to disclose to the defence material relevant to a charge.

7. Time for service of hand-up brief



(1) The hand-up brief must be served personally on the defendant or, if the
defendant is represented by a legal practitioner, on that legal practitioner,
at least 42 days before the committal mention date unless-

   (a)  the Court fixes another period at a special mention hearing; or

   (b)  the defendant consents in writing to a lesser period.

(2) Service of a hand-up brief may be proved in any manner in which service of
a summons to answer to a charge may be proved under section 35.

(3) The informant must file a copy of the hand-up brief with the registrar,
and forward another copy to the Director of Public Prosecutions, within 5 days
after service of the brief on the defendant.

(4) If a document a copy of which would have been required to be included, or
material which would have been required to be listed, in a hand-up brief had
it been in the informant's possession, or had the informant been aware of it,
at the time of service of the hand-up brief, comes into the informant's
possession or to his or her notice at any time thereafter, a copy of the
document or the list (as the case requires) must be served on the defendant,
and a copy filed with the registrar and another copy forwarded to the Director
of Public Prosecutions, as soon as practicable after the document or material
comes into the informant's possession or to his or her notice.

8. Rules with respect to statements



(1) A statement that the informant intends to tender at the committal
proceeding must be-

   (a)  in the form of an affidavit; or

   (b)  signed by the person making the statement and contain an
        acknowledgment signed by that person in the presence of a person, or a
        person belonging to a class of persons, prescribed by the Rules that
        the statement is true and correct and is made in the belief that a
        person making a false statement in the circumstances is liable to the
        penalties of perjury; or29







   (c)  in a form, and attested to in a manner, prescribed by the Rules.





(2) A statement that the informant intends to tender at the committal
proceeding must not disclose the address or telephone number (including a
private, business or official address or telephone number) of the person who
made the statement or of any other living individual unless-

   (a)  the statement does not identify the address or telephone number as
        that of any particular person; or

   (b)  the address or telephone number is a materially relevant part of the
        evidence; or

   (c)  the Court permits the disclosure on an application made by the
        informant or the defendant-

and, for this purpose, the informant may delete, or render illegible, an
address or telephone number included in the statement or any copy of the
statement before service on the defendant.

(3) The Court may only grant an application made under subclause (2)(c) if
satisfied that-

   (a)  disclosure is not likely to present a reasonably ascertainable risk to
        the welfare or protection of any person; or

   (b)  the interests of justice (including the defendant's right to prepare
        properly for the committal proceeding or for trial) outweigh any such
        risk.

(4) Compliance, or a failure to comply, with subclause (2) does not affect the
admissibility of a statement.

(5) If a person under the age of 18 years makes a statement that the informant
intends to tender at the committal proceeding, the statement must include the
person's age.

(6) If a person who cannot read makes a statement that the informant intends
to tender at the committal proceeding-

   (a)  the statement must be read to the person before he or she signs it;
        and

   (b)  the acknowledgment must state that the statement was read to the
        person before he or she signed it.

(7) A person who acknowledges a statement that the informant intends to tender
at the committal proceeding and that the person knows at the time to be false
is liable to the penalties of perjury.

9. Rules with respect to recordings



(1) A transcript of an audio or video recording of an examination under
section 56A or of the evidence-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.

(2) A person who acknowledges the contents of a recording that the informant
intends to tender at the committal proceeding and that the person knows at the
time to be false may be dealt with as if the contents of the recording had
been evidence given in court.

10. Inspection of exhibits

The defendant may inspect the exhibits at a time and place agreed between the
defendant and the informant.





10A. Time limit applicable to certain committal proceedings



(1) This clause applies to a committal proceeding for a sexual offence if-

   (a)  the complainant is a child or a person with a cognitive impairment;
        and

   (b)  a witness, other than the complainant, is to be cross-examined in the
        proceeding.

(2) The Court must determine a committal proceeding within the period of 60
days after the committal mention date or the final committal mention date if
more than one committal mention hearing is held.

(3) The Court may fix a longer or shorter period for the determination of a
committal proceeding but cannot do so unless the Court is satisfied that,
having regard to all the circumstances of the case including the seriousness
of the offence and the overall interests of justice, another period should be
fixed because of the existence of exceptional circumstances or another good
and sufficient reason.

(4) Subclause (2) does not apply-

   (a)  if the defendant has failed to appear in accordance with the
        conditions of his or her bail; or

   (b)  if a warrant to arrest the defendant has been issued and at the end of
        the relevant period referred to in clause 4(2) from the commencement
        of the proceeding for the offence the defendant has not been arrested;
        or

   (c)  if the defendant requests that the committal proceeding be determined
        after the period referred to in subclause (2) and the Court is
        satisfied that in the interests of justice the request should be
        granted.

(5) If a committal proceeding has not been determined before the expiry of the
period referred to in subclause (2), or any other period fixed under subclause
(3), the Court may, on the application of the defendant, order the defendant
to be discharged.





11. Procedure where plea brief served and filed



(1) If a plea brief is served under clause 5, then on the committal mention
date or at a special mention hearing held after the filing of a copy of the
brief under clause 5(6), the Court must-

   (a)  caution the defendant in the prescribed manner and inform the
        defendant of the options set out in section 398 of the Crimes Act 1958
        and of the provisions of section 399A of that Act and, if relevant, of
        Rules (5) to (5C) in section 37A(1) of the Evidence Act 1958; and

   (b)  if the defendant pleads guilty to the charge to which the committal
        proceeding relates and, in the opinion of the Court, the evidence is
        of sufficient weight to support a conviction for the offence with
        which the defendant is charged, commit the defendant for trial.



(2) If the defendant does not plead guilty to the charge to which the
committal proceeding relates, the Court must direct the informant to prepare
and serve a hand-up brief.





11AA. Case direction notices



(1) If a hand-up brief is served under clause 6, the defendant and the
Director of Public Prosecutions must jointly file with the registrar a case
direction notice no later than 7 days before the committal mention date.

(2) A case direction notice-

   (a)  must be in the prescribed form;

   (b)  must specify the procedure by which it is proposed that the matter be
        dealt with or indicate whether an adjournment of the hearing of the
        committal proceeding would assist the parties in determining how the
        matter should be dealt with;

   (c)  must state the names of any witnesses that the defendant intends to
        seek leave to cross-examine and specify in respect of each such
        witness whether the informant 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 defendant to which the proposed
        questioning relates and any reason provided by the defendant as to why
        the evidence of the witness is relevant to that issue; and

   (ii) why cross-examination of the witness on that issue is justified; and

   (iii) why the informant opposes leave being granted;

   (e)  may include any thing required or permitted to be included in a notice
        under clause 12(1);

   (f)  must be signed by or on behalf of the defendant and the Director of
        Public Prosecutions.

(3) If the defendant is not represented by a legal practitioner and does not
sign a case direction notice, the Director of Public Prosecutions must file
the case direction notice in accordance with this clause despite it not being
signed by or on behalf of the defendant and despite (if that be the case) the
defendant not having participated in any discussion or other activity
connected with its preparation.

(4) Nothing in this clause prevents the Court, in the interests of justice,
allowing the defendant to apply for leave to cross-examine a witness after the
expiry of the period for filing a case direction notice stating that intention
under this clause but, in considering that application, the Court may take
account of the failure to state that intention in a case direction notice and
any reason for that failure.

(5) If the Court allows a defendant to apply for leave to cross-examine a
witness in the circumstances referred to in subclause (4), the defendant and
the Director of Public Prosecutions must jointly file with the registrar
another case direction notice no later than 7 days before the next committal
mention date or within such other period as is fixed by the Court.

(6) Subclause (2)(b) does not apply to a case direction notice required to be
filed under subclause (5).

(7) If the Court at any time fixes another committal mention date, the Court
may direct that another case direction notice is to be jointly filed with the
registrar by the defendant and the Director of Public Prosecutions no later
than 7 days before that committal mention date or within such other period as
is fixed by the Court and may give any direction that it thinks fit as to the
matters to be dealt with by that case direction notice.

11AB. Adjournment in absence of parties



(1) If the parties have indicated in a case direction notice under clause 11AA
that an adjournment of the hearing of the committal proceeding would assist
them in determining how the matter should be dealt with, the Court may,
without requiring the attendance of the informant or the defendant, if
satisfied that it is in the interests of justice to do so-

   (a)  adjourn the hearing for up to 14 days and fix another committal
        mention date; and

   (b)  if the defendant has been granted bail in respect of the committal
        proceeding-

   (i)  excuse him or her from appearing on the date on which he or she was
        bailed to appear; and

   (ii) extend his or her bail to the committal mention date fixed under
        paragraph (a).

(2) If the Court extends bail under subclause (1)(b)(ii) it must cause to be
given to the defendant and the surety or sureties, if any, for the appearance
of the defendant notice in writing stating that-

   (a)  bail has been extended by the Court in the absence of the defendant
        and the surety; and

   (b)  the date, time and place at which the defendant is bound to attend;
        and

   (c)  the consequences of failure to attend at that time and place.

11A. No cross-examination of certain witnesses

Despite anything to the contrary in this Part, the Court must not grant leave
to cross-examine a witness who-

   (a)  is a complainant in a legal proceeding that relates (wholly or partly)
        to a charge for a sexual offence; and

   (b)  was a child or a person with a cognitive impairment at the time at
        which the proceeding was commenced; and



   (c)  made a statement a copy of which was served in the hand-up brief or a
        transcript of a recording of whose evidence-in-chief or examination
        under section 56A was served in the hand-up brief.

12. Defence notice



(1) If a hand-up brief is served under clause 6, the defendant may, no later
than 7 days before the committal mention date, give notice in writing to the
informant, the Director of Public Prosecutions and the registrar stating-



* * * * *





   (b)  that the defendant requires specified items as listed in the hand-up
        brief in accordance with clause 6(1)(j), (k) or (l) to be produced for
        inspection or a copy given to the defendant on or before the committal
        mention date;

   (c)  that the defendant is prepared, or is not prepared, to proceed, or
        proceed further, with the hearing of the committal proceeding while a
        forensic procedure, examination or test described in the hand-up brief
        in accordance with clause 6(1)(j) remains uncompleted.

(2) The defendant must include in the notice under subclause (1) any other
thing required by the Rules to be included.



* * * * *





(3) Subject to subclause (4)(a), the informant must comply with any reasonable
request under subclause (1)(b) for a copy of an item but, if the informant
considers that it is not reasonable to copy the item owing to its size or
nature, the informant must allow the defendant to inspect it on or before the
committal mention date.

(4) Nothing in this clause-

   (a)  prevents the informant objecting to the production of any item
        requested under subclause (1)(b) on any ground on which the informant
        might object if production of the item were sought by a witness
        summons; or

   (b)  prevents the defendant applying for the issue of a witness summons in
        respect of any item listed in the hand-up brief in accordance with
        clause 6(1)(j), (k) or (l); or

   (c)  requires the informant to produce any item referred to in paragraph
        (b) if its production is not requested under subclause (1)(b) or a
        witness summons is not issued in respect of it, unless the Court
        otherwise orders; or

   (d)  prevents the Court or the informant proceeding, or proceeding further,
        with the hearing of the committal proceeding irrespective of any
        statement included by the defendant in the notice under subclause
        (1)(c).



* * * * *





13. Application for leave to cross-examine a witness



(1) This clause applies to a witness who made a statement a copy of which was
served in the hand-up brief or a transcript of a recording of whose
evidence-in-chief or examination under section 56A was served in the hand-up
brief.

(2) A witness to whom this clause applies cannot be cross-examined without
leave.

(3) Subclause (2) also applies to any oral evidence-in-chief supplementary to
the statement or recording that the witness may give with the leave of the
Court.

(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.

(4A) If the informant consents to leave being granted to cross-examine a
witness, the Court must grant leave unless it is of the opinion that it is
inappropriate to do so.

(5) The Court must not grant leave to cross-examine a 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
        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 that-

   (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 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; and

   (e)  matters relevant to a potential plea of guilty are clarified; and

   (f)  matters relevant to a potential nolle prosequi are clarified; and



   (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 subclause (5A), if the witness is
under 18 years of age the Court must 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 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

   (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

   (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

        (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.

(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.

(6) Subject to clause 14(1), a witness to whom this clause applies is not
required to attend a committal proceeding.

14. Attendance of witnesses



(1) If leave is granted to cross-examine a witness to whom clause 13 applies
or to call such a witness to give oral evidence-in-chief, the witness must
attend on the date to which the hearing of the proceeding is adjourned for the
witness to give evidence and, if he or she does not do so, his or her
statement or recorded evidence or examination is inadmissible in evidence.

(2) If a witness who is required to attend a committal proceeding does not
attend, the Court may-

   (a)  adjourn the proceeding; or

   (b)  cause a warrant to arrest or summons to be issued to compel the
        attendance of the witness; or

   (c)  continue the committal proceeding in the absence of the witness if
        satisfied that it would not be unfair to the defendant to do so.

(3) A witness who is required to attend a committal proceeding must attend on
any date to which the hearing of the proceeding is adjourned unless excused
from attendance by the Court.

15. Giving of evidence by witnesses



(1) If the Court grants leave for the cross-examination of a witness to whom
clause 13 applies, the witness must confine his or her evidence-in-chief to
identifying himself or herself and attesting to the truthfulness of the
statement or of the contents of the recording.

(1A) The Court may, on application made by or on behalf of the informant or
the defendant, permit a statement or the contents of a recording to be read
out in full in the court room before the witness is asked to attest to its
truthfulness or is cross-examined if the Court is satisfied that it is in the
interests of justice to do so.

(2) With the leave of the Court, the prosecution may call-

   (a)  a witness to whom clause 13 applies-

   (i)  to give the whole of his or her evidence-in-chief orally; or

   (ii) to give oral evidence-in-chief supplementary to the statement or
        recording (whether or not the statement or recording has been read out
        under subclause (1A)); or

   (b)  any other witness to give oral evidence-in-chief.

(3) In considering whether to grant leave under subclause (2), the Court must
have regard to the interests of justice and must not, except where exceptional
circumstances exist, grant leave for a witness to whom clause 13 applies to
give the whole of his or her evidence-in-chief orally.

(4) Subject to clause 13(2) and (3), a witness who gives evidence-in-chief may
be cross-examined and re-examined.

(5) Evidence given at a committal proceeding must be recorded in accordance
with Part VI of the Evidence Act 1958.





16. Cross-examination of witnesses



(1) Without limiting any other power that it has to 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-

   (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

   (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 ensure that-

   (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 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; and

   (e)  matters relevant to a potential plea of 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

   (h)  the interests of justice are otherwise served.

(3) In addition to the requirements of subclause (2), if the witness is under
18 years of age the Court must 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)  the need to prevent the witness being asked a question that is-

   (i)  misleading or confusing; or

   (ii) phrased in inappropriate language; or

   (iii) unduly annoying, harassing, intimidating, offensive, oppressive or
        repetitive; and

   (c)  any relevant condition or characteristic of the witness, including,
        age, culture, personality, education and level of 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

   (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 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

   (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.

17. Special rules applicable to sexual offences



(1) This clause applies to a committal proceeding relating to a charge for a
sexual offence, whether or not the committal proceeding relates to any other
charge against the same or any other person and whether or not it is alleged
that there are aggravating circumstances.

(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 his or her examination under section 56A is being
played, only the following may be present-

   (a)  the informant;

   (b)  the defendant;

   (c)  a person whom the complainant wishes to have present for the purpose
        of providing emotional support to him or her and who is reasonably
        available and approved by the court to be present;

   (d)  the legal practitioners and their clerks acting for the prosecution
        and the defence;

   (e)  the court officials whose presence is required;

   (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 1958;

   (h)  other persons who have been authorised by the Court to be present.

(4) The Court must give reasons for authorising a person to be present under
subclause (3)(h).

18. Admissibility of non-oral evidence



(1) On proof of their service on the defendant in accordance with Part 3 the
following are, subject to subclauses (2) and (3), admissible as if their
contents were a record of evidence given orally-

   (a)  any statement the truthfulness of which has been attested to;

   (b)  subject to clause 14(1), any other statement a copy of which has been
        served in the hand-up brief;

   (c)  any exhibit or document referred to in a statement which is
        admissible;

   (d)  any recording the truthfulness of the contents of which has been
        attested to;

   (e)  any other recording a transcript of which has been served in the
        hand-up brief.

(2) The 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

   (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 defendant and his or her legal
practitioner were given a reasonable opportunity to listen to and, in the case
of a video recording, view the recording.







19. Procedure if defendant makes admission of relevant fact or matter



(1) If under section 149A of the Evidence Act 1958 a defendant makes, during a
committal proceeding, an admission of any fact or matter that is relevant in
the proceeding, the Court must cause the admission to be included in the
record of the proceeding.

(2) An admission made by a defendant during a committal proceeding may be used
in evidence at the subsequent trial.

20. Absence of defendant



(1) If the Court-

   (a)  has commenced to conduct a committal proceeding; and

   (b)  is satisfied that there are special circumstances in respect of a
        defendant; and

   (c)  is of the opinion that the committal proceeding cannot be postponed
        without undue prejudice or inconvenience to the prosecution or any
        other defendant or any witness-

the Court may, on application made by or on behalf of a defendant, authorise
the defendant to be absent from the committal proceeding for a period fixed by
the Court, subject to any conditions, limitations or restrictions that the
Court imposes.

(2) If, during a committal proceeding, a defendant-

   (a)  absconds; or

   (b)  behaves in a manner necessitating the defendant's removal from the
        court room and the Court orders the defendant to be removed; or

   (c)  is authorised under subclause (1) to be absent; or

   (d)  is absent for any other reason-

the Court may continue the committal proceeding in the absence of the
defendant if the Court is of the opinion that the committal proceeding cannot
be postponed without undue prejudice or inconvenience to the prosecution or
any other defendant or any witness.

21. Procedure if defendant absent at close of prosecution case

If-

   (a)  a committal proceeding is continued in the absence of a defendant; and

   (b)  the defendant is not present when the evidence for the prosecution is
        concluded-

the Court must, unless it makes an order under clause 23(2)(a) for the
defendant to be discharged-

   (c)  postpone the committal proceeding until the defendant is present; or

   (d)  if any other defendant is present, postpone the committal proceeding
        in respect of the charge against the absent defendant.

22. Procedure on defendant's attendance after absence

If a defendant-

   (a)  has been absent from a committal proceeding; and

   (b)  was not represented by a legal practitioner during the absence-

then, on the defendant's attendance, the Court-

   (c)  must direct that-

   (i)  the record of evidence be played or the shorthand notes be read in the
        presence of the defendant; or

   (ii) the defendant be supplied with a transcript of the evidence; and

   (d)  may, on the application of the defendant, recall for further
        examination any witness who gave oral evidence during the defendant's
        absence.

23. Determination of committal proceeding



(1) After the evidence for the prosecution is concluded, the Court must
enquire whether the defence intends to call any witness or make any
submission.

(2) If the defence indicates that it does not intend to call any witness or
make any submission, the Court must-

   (a)  if in its opinion the evidence is not of sufficient weight to support
        a conviction for any indictable offence, order the defendant to be
        discharged; or

   (b)  if in its opinion the evidence is of sufficient weight to support a
        conviction for the offence with which the defendant is charged-

   (i)  caution the defendant in the prescribed manner; and

   (ii) inform the defendant of the options set out in section 398 of the
        Crimes Act 1958 and of the provisions of section 399A of that Act and,
        if relevant, of Rules (5) to (5C) in section 37A(1) of the
        Evidence Act 1958; and

   (iii) commit the defendant for trial; or

   (c)  if in its opinion the evidence is of sufficient weight to support a
        conviction for an indictable offence other than that with which the
        defendant is charged, direct the informant to prepare a charge for
        that offence and cause the defendant to be charged with that offence
        and then proceed in accordance with paragraph (b)(i) and (ii) and
        commit the defendant for trial.

(3) At the conclusion of the evidence of the witness or witnesses called by
the defence or any submissions made by the defence, the Court must-

   (a)  if in its opinion the evidence is not of sufficient weight to support
        a conviction for any indictable offence, order the defendant to be
        discharged; or

   (b)  if in its opinion the evidence is of sufficient weight to support a
        conviction for the offence with which the defendant is charged,
        proceed in accordance with subclause (2)(b)(i) and (ii) and commit the
        defendant for trial; or

   (c)  if in its opinion the evidence is of sufficient weight to support a
        conviction for an indictable offence other than that with which the
        defendant is charged-

   (i)  direct the informant to prepare a charge for that offence and cause
        the defendant to be charged with that offence; and

   (ii) proceed in accordance with subclause (2)(b)(i) and (ii) and commit the
        defendant for trial.





24. Procedure after committal



(1) On committing a defendant for trial the Court must-

   (aa) in the manner prescribed by the rules of court-

   (i)  ask the defendant whether the defendant pleads guilty or not guilty to
        the charge; and

   (ii) inform the defendant 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; and

   (a)  if the defendant was not represented by a legal practitioner in the
        committal proceeding, explain to the defendant the importance of
        obtaining legal representation for the trial; and

   (b)  if the defendant is a natural person, remand the defendant in custody,
        or grant bail, until trial or a date before trial fixed by the Court;
        and





   (ba) if the defendant is a body corporate, order the defendant to appear,
        by a representative or a legal practitioner, at its arraignment; and



   (c)  warn the defendant that if he or she wishes to be legally aided, that
        it is the defendant's responsibility to make application to Victoria
        Legal Aid as soon as possible.

(2) After committal the registrar must forward to the Director of Public
Prosecutions-

   (a)  a copy of any plea brief filed in the Court in the proceeding; and

   (b)  the depositions; and

   (c)  all exhibits which have remained in the custody of the Court; and

   (d)  copies of all process filed in the Court in the proceeding; and

   (e)  copies of all bail undertakings in the proceeding.

(3) A defendant committed for trial is entitled as soon as possible after
being committed-

   (a)  to receive free of charge from the Director of Public Prosecutions-

   (i)  a copy of the depositions; and

   (ii) subject to this Schedule and the regulations made under section 152 of
        the Evidence Act 1958, a copy of any exhibit not previously supplied
        to the defendant, if in the opinion of the Director of Public
        Prosecutions it is reasonable to provide a copy for the preparation of
        the defence; and

   (b)  to examine any exhibits.



* * * * *





(9) The magistrate who conducted the committal proceeding may make a
recommendation to the court in which the presentment is filed that a
directions hearing under section 5 of the Crimes (Criminal Trials) Act 1999
may be desirable.

24AA. Absent corporate defendant to be notified of committal



(1) The Director of Public Prosecutions must, after a defendant that is a body
corporate is committed for trial at a committal proceeding from which the
defendant has been absent, serve on the defendant within 14 days after the
committal a notice stating-

   (a)  that the defendant has been committed for trial on a specified charge
        or specified charges; and

   (b)  that the Court has ordered the defendant to appear, by a
        representative or a legal practitioner, at its arraignment and that it
        is an offence not to comply with that order; and

   (c)  the date and time at which the defendant must appear at its
        arraignment; and

   (d)  that if the defendant does not appear at its arraignment the trial
        court may proceed to hear and determine the charge in its absence.





(2) If the defendant is a company or registered body (within the meaning of
the Corporations Act), a notice under subsection (1) may be served on the
defendant in accordance with section 109X or 601CX of that Act, as the case
requires.

24A. Evidence taken after accused person directed to be tried



(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.

(2) An applicant for an order under subsection (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 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 subsection (1) is given may
attend the hearing of the application and address the Court on it.

(4) The Court must not make an order under subclause (1) in respect of a
person who-

   (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 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 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 truthfulness of which has been attested to.

(5) The Court must not make an order under subclause (1) in respect of a
person who subsequently makes a statement or a supplementary statement unless
it is satisfied 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

   (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-

   (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 defendant is able adequately to prepare and present
        a defence; and

   (d)  matters relevant to a potential plea of guilty are clarified; and

   (e)  matters relevant to a potential nolle prosequi are clarified; and

   (f)  trivial, vexatious or oppressive taking of evidence is not permitted;
        and

   (g)  the interests of justice are otherwise served.

(7) In addition to the requirements of subclause (6), if the witness is under
18 years of age the Court must 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 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

   (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

   (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

        (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.

(8) If the Director of Public Prosecutions or the defendant obtains an order
under subclause (1), the other party may attend the hearing of the proceeding
and address the Court.

(9) If the defendant obtains an order under subclause (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 Court for examination.

(10) The Court may, on making an order under subsection (1) or at the
examination, make any 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 evidence under this clause is
not limited to cross-examining the witness on the issue with respect to which
the order was made under subclause (1).

(12) Clause 16 applies in relation to the cross-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 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 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.

24B. Offence to fail to appear at trial

A body corporate must comply with an order made under clause 24(1)(ba).
Penalty: 240 penalty units.





25. Costs order

Without limiting its discretion under section 131(1), the Court may take into
account, in determining whether to award costs against a party, any
unreasonable failure on the part of the party to comply with the requirements
of this Schedule, or with any order made by the Court under this Schedule,
that it is satisfied resulted in prolonging the proceeding.

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