Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

No. 68 of 2009

table of provisions

SectionPage

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Criminal Procedure Act2009

3Definitions

4Notice to accompany summons or warrant

5Personal service of summons

6When an indictable offence may be heard and determined summarily

7Division heading substituted

8Admissibility of evidence in absence of accused

9Rules with respect to statements

10Contents of hand-up brief

11Rules with respect to recordings

12Contents of plea brief

13Committal mention hearing

14Recording of evidence

15On committing accused for trial

16Evidence taken after committal

17Special mention hearing

18Transfer of charges to Magistrates' Court

19Powers of court at directions hearing

20Order for legal representation for accused

21Manner of giving evidence

22Determination of appeal

23Abandonment of appeal

24Failure to appear on appeal

25Appeal against conviction

26Determination of application for leave to appeal

27New section 284A inserted

284ADetermination of application for leave to appeal under section283

28Determination of Crown appeal

29Crown appeal against sentence

30Interlocutory appeals

31DPP may refer point of law to Court of Appeal

32Stay of certain orders during appeal period

33Extension of time for filing or serving notice of appeal or
notice of application for leave to appeal

34Powers of single Judge of Appeal

35Bail following appeal

36Petition for mercy

37New section 336A inserted

336AVictim who is a witness entitled to be present in court

38Court may act on application or on own motion

39Service of documents

40Notice to appear—costs

41Issue of warrant to arrest

42Transfer of charge to court with jurisdiction

43Regulations

44New section 14A in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

45New section 24AA in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

46Joint committals—Magistrates' Court Act 1989

47Commencement of proceedings in Children's Court

48Joint committals—Children, Youth and Families Act 2005

49Statute law revision

50New Part 8.2 inserted

Part 8.2—Witnesses

Division 1—Guiding principles

338Guiding principles

Division 2—Evidence concerning complainant

339Application of Division

340Definition

341Prohibition on questions and evidence concerning complainant's chastity

342Restriction on questions and evidence concerning complainant's sexual activities

343Admissibility of sexual history evidence

344Application for leave

345Application for leave out of time

346Contents of application for leave

347Waiver of requirement to apply for leave in writing

348Hearing of application for leave

349Determination of application for leave during summary hearing, committal proceeding or trial

350Determination of application for leave during
sentencing hearing

351Court must state reasons if leave granted

352Limitation on sexual history evidence

Division 3—Cross-examination of protected witnesses

353Application of Division

354Definitions

355Court may declare witness to be protected witness

356Protected witness not to be cross-examined by
accused in person

357When accused is not legally represented

358Jury warning concerning legal representation for
cross-examination

Division 4—Alternative arrangements for giving evidence

359Application of Division

360Alternative arrangements for giving evidence

361Jury warning concerning alternative arrangements

362Evidence given by closed-circuit television or other facilities

363When court must direct use of closed-circuit television or other facilities for complainant

364When court must direct use of screens for complainant

365When court must direct presence of support person
for complainant

Division 5—Use of recorded evidence-in-chief of children
and cognitively impaired witnesses in sexual offence and assault matters

366Application of this Division

367Use of recorded evidence-in-chief

368Admissibility of recorded evidence-in-chief

Division 6—Procedure and rules for children and
cognitively impaired complainants

369Application of Division

370Special hearing for pre-recording evidence

371Time limits for special hearing

372Conduct of special hearing

373Form in which recording of special hearing is to be tendered

374Admissibility of evidence from special hearing

375Jury warning as to recording of special hearing

376Cross-examination of complainant

377Exception to hearsay rule—previous representations made by complainant under 18 years

Division 7—Admission of recorded evidence of
complainant in sexual offence matters

378Application of Division

379Admissibility of recording of complainant's evidence

380Prosecution to give notice of intention to tender recording

381Admission of recording of evidence of complainant

382Jury warning as to recorded evidence of complainant

383Attendance of complainant

384Direct testimony in addition to recording

385Cross-examination of complainant

386Form in which recording of complainant's evidence
is to be tendered

387Exception to hearsay rule

Division 8—Miscellaneous

388Evidence of specialised knowledge in certain cases

389Audiovisual link evidence from overseas in certain proceedings

51Amendment of cross-references consequential on renumbering

52Renumbering of sections 338–361 consequential on insertion
of new Part8.2

53New section 414 inserted

414Acknowledgment of false statement

54Renumbering of sections 362 onwards

55New Chapter 10 inserted

Chapter 10—Savings and Transitional Provisions

439Savings and transitional provisions

56Substitution of Schedule 2

SCHEDULE 2—Indictable Offences that may be Heard
and Determined Summarily

1Common law

2Aboriginal Heritage Act 2006

3Assisted Reproductive Treatment Act 2008

4Crimes Act 1958

5Dangerous Goods Act 1985

6Drugs, Poisons and Controlled Substances Act1981

7Electricity Industry Act 2000

8Electricity Safety Act 1998

9Environment Protection Act 1970

10Equipment (Public Safety) Act 1994

11Firearms Act 1996

12Food Act 1984

13Gas Industry Act 2001

14Gas Safety Act 1997

15Health Records Act 2001

16Heritage Act 1995

17Information Privacy Act 2000

18Juries Act 2000

19Major Sporting Events Act 2009

20Occupational Health and Safety Act 2004

21Police Regulation Act 1958

22Pollution of Waters by Oil and Noxious Substances Act 1986

23Prohibition of Human Cloning for Reproduction Act2008

24Prostitution Control Act 1994

25Rail Safety Act 2006

26Research Involving Human Embryos Act 2008

27Road Management Act 2004

28Tobacco Act 1987

29Transport Act 1983

30Water Act 1989

31Water Industry Act 1994

57Amendment of Schedule 3

58New Schedule 4 inserted

SCHEDULE 4—Savings and Transitional Provisions

1Definitions

2General transitional provision

3Renumbering

4References to superseded provisions

5Commencing a criminal proceeding

6Summary procedure

7Committal proceeding

8Trial

9New trial or further hearing

10Appeals

11Petitions for mercy

12Witnesses

13Costs

14Power to amend when there is a defect or error

15Transfer of charge to court with jurisdiction

16Perjury

17Transitional regulations

Part 3—Amendment of Children, Youth and Families Act 2005

59Definitions

60Procedure on appeals to County Court or Supreme Court

61DPP reference

62Children to be proceeded against by summons

63Child to be brought before Court or bail justice

64Referral to Secretary

65Adjournment of criminal proceeding when therapeutic
treatment order made

66Division heading amended

67Section heading amended

68Part 5.3 amended

69Substitution of Part 5.4

Part 5.4—Appeals

Division 1—Appeal by offender to the County Court or
Trial Division of the Supreme Court

424Right of appeal

425How appeal is commenced

426Determination of appeal

Division 2—Appeal by DPP against sentence

427DPP's right of appeal against sentence

428How appeal is commenced

429Determination of DPP appeal

Division 3—Procedure on appeals from Children's Court

430Late notice of appeal deemed to be application for
leave to appeal

430AStay of order

430BBail pending appeal

430CAbandonment of appeal

430DAppellant's failure to appear

430ERespondent's failure to appear on appeal by DPP

430FOne notice of appeal for 2 or more sentences

430GAppeal to County Court or Trial Division of Supreme Court authorised by other Acts

Division 4—Reports

430HApplication of Division

Subdivision 1—Pre-sentence reports

430ICourt may order pre-sentence report

430JNotification of requirement to submit presentence
report

430KPre-sentence report to be filed with court

430LAttendance at appellate court of author of presentence report

430MDisputed pre-sentence report

Subdivision 2—Group conference reports

430NGroup conference report

430OGroup conference report to be filed with court

Division 5—Appeal to Supreme Court on a question of law

430PAppeal to Supreme Court on a question of law

430QAppeal on question of law precludes other appeals

Division 6—Appeal to Court of Appeal and referral of
point of law to Court of Appeal

430RRight of appeal against sentence of detention imposed
on appeal from Children's Court

430SHow appeal is commenced

430TDetermination of appeal

430UOrders etc. on successful appeal

430VPowers and procedure

430WDPP may refer point of law to Court of Appeal

Division 7—Status of sentence and orders during appeal period

430XSentence not stayed during appeal period

430YBail pending appeal

430ZStay of certain orders during appeal period

430ZAExecution of order for forfeiture or destruction of property

Division 8—Miscellaneous

430ZBAppeal by child under 15 years

430ZCParent may enter into bail

430ZDAppeals to be heard in open court

430ZELegal representation

430ZFInterpreters

430ZGExplanation of and reasons for orders

Division 9—Costs on appeal

430ZHNo costs on appeal or new hearing

70Establishment of corrective services

71Power of arrest in youth justice centre

72Assignment of magistrates

73Jurisdiction of Criminal Division

74Koori Court (Criminal Division)

75Neighbourhood Justice Division

76Procedural guidelines

77Explanation of and reasons for orders

78Powers of Children's Court

79Process

80Pre-sentence reports

81Witness or other person who has previously appeared in Children's Court

82Transfer of proceedings

83Powers of Supreme Court or County Court

84Rules

85Supreme Court—limitation of jurisdiction

86New sections 609 and 610 inserted

609Transitional provision—Criminal Procedure
Act 2009

610Transitional provision—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

87Amendment of Schedules

Part 4—Amendment of Public Prosecutions
Act1994

88Definitions

89Chief Crown Prosecutor is responsible to Director

90Functions of Director

91Power to discontinue criminal proceedings

92Delegation

93Functions of Crown Prosecutors

94Functions of Solicitor for Public Prosecutions

95Outcome of trial cannot be challenged on ground relating to special decision

96Substitution of section 49

49Supreme Court—limitation of jurisdiction

Part 5—Consequential and Other Amendments
to Other Acts

97Consequential and other amendments

Part 6—Repeal

98Repeal of Act

______

SCHEDULE—Consequential and Other Amendments

1Aboriginal Heritage Act 2006

2Aboriginal Lands Act 1970

3Accident Compensation Act 1985

4Accident Towing Services Act 2007

5Administrative Law Act 1978

6Agricultural and Veterinary Chemicals (Victoria)
Act 1994

7Alcoholics and Drug-dependent Persons Act 1968

8Appeal Costs Act 1998

9Australian Crime Commission (State Provisions)
Act 2003

10Australian Grands Prix Act 1994

11Bail Act 1977

12Biological Control Act 1986

13Building Act 1993

14Bus Safety Act 2009

15Business Franchise (Tobacco) Act 1974

16Casino Control Act 1991

17Cemeteries and Crematoria Act 2003

18Charter of Human Rights and Responsibilities Act2006

19Children's Services Act 1996

20Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

21Collusive Practices Act 1965

22Competition Policy Reform (Victoria) Act 1995

23Confiscation Act 1997

24Conservation, Forests and Lands Act 1987

25Constitution Act 1975

26Construction Industry Long Service Leave Act 1997

27Control of Weapons Act 1990

28Conveyancers Act 2006

29Co-operatives Act 1996

30Coroners Act 2008

31Corporations (Ancillary Provisions) Act 2001

32Corporations (Victoria) Act 1990

33Corrections Act 1986

34Country Fire Authority Act 1958

35County Court Act 1958

36Court Security Act 1980

37Credit (Administration) Act 1984

38Credit Act 1984

39Crimes (Mental Impairment and Unfitness to be Tried) Act1997

40Crimes Act 1958

41Crown Land (Reserves) Act 1978

42Crown Proceedings Act 1958

43Dairy Act 2000

44Dangerous Goods Act 1985

45Domestic Animals Act 1994

46Domestic Building Contracts Act 1995

47Drugs, Poisons and Controlled Substances Act 1981

48Education and Training Reform Act 2006

49Electricity Industry Act 2000

50Environment Protection Act 1970

51Equal Opportunity Act 1995

52Equipment (Public Safety) Act 1994

53Estate Agents Act 1980

54Evidence Act 1958

55Evidence Act 2008

56Fair Trading Act 1999

57Family Violence Protection Act 2008

58Fisheries Act 1995

59Food Act 1984

60Forests Act 1958

61Fuel Prices Regulation Act 1981

62Gambling Regulation Act 2003

63Gas Industry Act 2001

64Goods Act 1958

65Health Professions Registration Act 2005

66Heritage Act 1995

67Housing Act 1983

68Impounding of Livestock Act 1994

69Imprisonment of Fraudulent Debtors Act 1958

70Infringements Act 2006

71Interpretation of Legislation Act 1984

72Judicial Proceedings Reports Act 1958

73Juries Act 2000

74Land Act 1958

75Landlord and Tenant Act 1958

76Legal Aid Act 1978

77Legal Profession Act 2004

78Liquor Control Reform Act 1998

79Livestock Disease Control Act 1994

80Local Government Act 1989

81Long Service Leave Act 1992

82Magistrates' Court Act 1989

83Major Sporting Events Act 2009

84Marine Act 1988

85Marine Safety Legislation (Lakes Hume and Mulwala) Act2001

86Mental Health Act 1986

87Mines Act 1958

88Motor Car Traders Act 1986

89New Tax System Price Exploitation Code (Victoria)
Act1999

90Occupational Health and Safety Act 2004

91Petroleum (Submerged Lands) Act 1982

92Plant Health and Plant Products Act 1995

93Police Regulation Act 1958

94Pollution of Waters by Oil and Noxious Substances
Act1986

95Prevention of Cruelty to Animals Act 1986

96Prisoners (Interstate Transfer) Act 1983

97Prohibition of Human Cloning for Reproduction
Act2008

98Prostitution Control Act 1994

99Public Health and Wellbeing Act 2008

100Radiation Act 2005

101Rail Safety Act 2006

102Research Involving Human Embryos Act 2008

103Residential Tenancies Act 1997

104Road Legislation Amendment Act 2009

105Road Management Act 2004

106Road Safety Act 1986

107Sale of Land Act 1962

108Second-Hand Dealers and Pawnbrokers Act 1989

109Securities Industry Act 1975

110Sentencing Act 1991

111Serious Sex Offenders Monitoring Act 2005

112Sex Offenders Registration Act 2004

113Shop Trading Reform Act 1996

114State Electricity Commission Act 1958

115Summary Offences Act 1966

116Supreme Court Act 1986

117Surveillance Devices Act 1999

118Sustainable Forests (Timber) Act 2004

119Terrorism (Community Protection) Act 2003

120Tobacco Act 1987

121Trade Measurement Act 1995

122Trade Unions Act 1958

123Transport Accident Act 1986

124Transport Act 1983

125Travel Agents Act 1986

126Trustee Act 1958

127Trustee Companies Act 1984

128Unclaimed Money Act 2008

129Utility Meters (Metrological Controls) Act 2002

130Victims' Charter Act 2006

131Victorian Civil and Administrative Tribunal Act1998

132Vital State Projects Act 1976

133Water Act 1989

134Water Industry Act 1994

135Wildlife Act 1975

136Working with Children Act 2005

137Wrongs Act 1958

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Endnotes

1

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Victoria

1

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Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009[†]

No. 68 of 2009

[Assented to 24 November 2009]

1

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009
No. 68 of 2009

1

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009
No. 68 of 2009

The Parliament of Victoriaenacts:

1

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009
No. 68 of 2009

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a) to make consequential amendments as a result of the Criminal Procedure Act 2009; and

(b)to provide transitional arrangements for the commencement of that Act; and

(c)to amend that Act to provide for witnesses in sexual offence or family violence cases; and

(d)to make other miscellaneous amendments relating to criminal procedure.

2Commencement

s. 2

(1)This Part and Parts 2 and 6 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 1 January 2011, it comes into operation on that day.

______

Part 2—Amendment of Criminal Procedure Act2009

3Definitions

s. 3

See:
Act No.
7/2009.
LawToday:
www.
legislation.
vic.gov.au

In section 3 of the Criminal Procedure Act 2009—

(a) in the definition of conviction, for "Chapters6 and 8" substitute "Chapter 6";

(b)the definition of prison officer is repealed;

(c)in the note at the foot of the definition of sentence, for "to make any sentencing order which the Children's Court may make" substitute "to impose any sentence which the Children's Court may impose";

(d)insert the following definitions—

"evidence in support of alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular areaat a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

notice to appear means a notice served under section 21;

special hearing means a hearing conducted under section 370;".

4Notice to accompany summons or warrant

In section 13 of the Criminal Procedure Act 2009—

(a)after "summons to answer to a charge" insert "issued under section12 or14";

(b)for paragraph (b)(i) substitute—

"(i)if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part4.4; and

(ii)if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and";

(c)in paragraph (b)(ii), for "(ii)" substitute "(iii)";

(d)in paragraph (b)(iii), for "(iii)" substitute "(iv)".

5Personal service of summons

s. 5

In section 16(b) of the Criminal Procedure Act 2009, for "regulations" substitute "rules of court".

6When an indictable offence may be heard and determined summarily

In section 29(2)(b) of the Criminal Procedure Act 2009, for "sentencing orders" substitute "sentences".

7Division heading substituted

For the heading to Division 4 of Part 3.2 of Chapter 3 of the Criminal Procedure Act 2009substitute—

"Division 4—Mention hearing, summary case conference and contest mention hearing".

8Admissibility of evidence in absence of accused

In sections 83(1)(a), 83(4), 84(1)(a) and 84(6) ofthe Criminal Procedure Act 2009, for "section80" substitute "section 25(1) or80".

9Rules with respect to statements

s. 9

In the Criminal Procedure Act 2009—

(a)in section 38(1), omit "(1)";

(b)section 38(2) is repealed;

(c)the note at the foot of section 38(2)is repealed;

(d)at the foot of section 38 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(e)section 47(4) is repealed;

(f) the note at the foot of section 47(4)is repealed;

(g)at the foot of section 47 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(h) the note at the foot of section 49(5) is repealed;

(i)at the foot of section 49 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(j)section 112(4) is repealed;

(k) at the foot of section 112insert—

"Note

Section 414 provides for acknowledgment of false statements.".

10Contents of hand-up brief

s. 10

In section 110 of the Criminal Procedure Act 2009—

(a)omit "(1)";

(b)in paragraph (d)(vi), for "video recording of a kind referred to in section 37B(2) of the Evidence Act 1958" substitute "audiovisual recording of a kind referred to in section367,".

11Rules with respect to recordings

In section 113(1) of the Criminal Procedure Act 2009—

(a)for "video" substitute "audiovisual";

(b)for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2".

12Contents of plea brief

At the foot of section 117 of the Criminal Procedure Act 2009 insert—

"Note

Section 414 provides for acknowledgment of false statements.".

13Committal mention hearing

In section 125(1)(a) of the Criminal Procedure Act 2009, for "section 141 or 142" substitute "section 141, 142 or 143".

14Recording of evidence

In the Criminal Procedure Act 2009—

(a)in section 130(1), in the definition of recording, for "video" substitute "audiovisual";

(b)in section 139(3), for "a video" substitute "an audiovisual".

15On committing accused for trial

s. 15

For section 144(2)(b)(ii) of the Criminal Procedure Act 2009 substitute—

"(ii)the provisions of sections 342,344 and 346, if relevant; and".

16Evidence taken after committal

(1)In section 150(2)(c) of the Criminal Procedure Act 2009, for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2".

(2)After section 150(4) of the Criminal Procedure Act 2009 insert—

"(5)The Magistrates' Court must not make an order under subsection (1) in respect of a witness referred to in section 123.".

(3) For section 152(3) of the Criminal Procedure Act 2009substitute—

"(3)Without limiting subsection (2), the Magistrates' Court may order that the accused may cross-examine the person giving evidence under this section, irrespective of who calls the person as a witness.".

17Special mention hearing

In section 153(c) of the Criminal Procedure Act 2009, for "section 142" substitute "section 141, 142 or 143".

18Transfer of charges to Magistrates' Court

s. 18

After section 168(3) of the Criminal Procedure Act 2009 insert—

"(4)If an order is made under this section, the transferring court may—

(a)order that the accused appear before the Magistrates' Court on a specified date; or

(b)if the accused is a natural person, remand the accused in custody, or grant bail, to appear before the Magistrates' Court on a specified date; or

(c)in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, before the Magistrates' Court on a specified date.".

19Powers of court at directions hearing

In section 181(2)(d) of the Criminal Procedure Act 2009, for "section 41G of the Evidence Act 1958" substitute "Division 6 of Part 8.2".

20Order for legal representation for accused

In section 197(7) of the Criminal Procedure Act 2009, for "section 17A of the Supreme Court Act 1986" substitute "this or any other Act".

21Manner of giving evidence

In section 232(3) of the Criminal Procedure Act2009, for "section 41G and"substitute "Division 6 of Part 8.2 of this Act,".

22Determination of appeal

s. 22

At the foot of section 256 of the Criminal Procedure Act 2009insert—

"Note

See the definition of sentence in section 3. This includes the recording of a conviction.".

23Abandonment of appeal

(1)For section 266(1) of the Criminal Procedure Act 2009 substitute—

"(1)Subject to subsections (2) and (3), an appeal to the County Court may be abandoned by filing a notice of abandonment of appeal, in the form prescribed by the rules of the County Court,with the County Court.".

(2)For section 266(3) of the Criminal Procedure Act 2009substitute—

"(3)An appellant who has been sentenced to a term of imprisonment or detention but who is not in custody mayabandon the appeal by—

(a)surrendering to the registrar of the County Court; and

(b)immediately filing a notice of abandonment of appeal in accordance with subsection (1).

(3A)If a person surrenders to the registrar of the County Court in accordance with subsection (3), the registrar may issue, in accordance with the Magistrates' Court Act 1989,a warrant to imprison the person.".

(3)In section 266(4) of the Criminal Procedure Act 2009omit "in accordance with subsection (2) or the rules of the County Court".

(4) In section 266(5)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and".

24Failure to appear on appeal

s. 24

(1)In section 267(2)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and".

(2)After section 267(6) of the Criminal Procedure Act 2009 insert—

"(7)On the reinstatement of an appeal under subsection (6), the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when—

(a)if required, the appellant signs the undertaking referred to in subsection (6)(b); and

(b)if the appellant is in custody because of the sentence appealed against and bail is granted under section 265, the appellant enters bail.