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
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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.