Criminal Procedure Act 2009

Criminal Procedure Act 2009

No. 7 of 2009

table of provisions

SectionPage

Chapter 1—Preliminary

1Purposes

2Commencement

3Definitions

4References to Parts

Chapter 2—Commencing a Criminal Proceeding

Part 2.1—Ways in which a Criminal Proceeding is Commenced

5How a criminal proceeding is commenced

Part 2.2—Charge-sheet and Listing of Matter

6Commencement of a criminal proceeding in the Magistrates' Court

7Time limits for filing a charge-sheet

8Order for amendment of charge-sheet

9Errors etc. in charge-sheet

10Listing of matter for mention hearing or filing hearing in the Magistrates' Court

11Place of hearing

Part 2.3—Notifying Accused of Court Appearance

Division 1—Summons or warrant to arrest

12Court may issue summons or warrant to arrest

13Summons or warrant to be accompanied by charge-sheet and notice when served

14Police or public official may issue summons

15Contents of summons

16Personal service of summons

17Summons for summary offence may be served by ordinary service

18Informant must nominate address etc. for service of documents

19Extension of return date if summons not served

20Adjournment of proceeding on application of accused

Division 2—Notice to appear

21Police or public official may serve notice to appear

22Notice to appear lapses unless charge-sheet filed within 14 days

23Notice to be given on lapsing

24Preliminary brief to be served if charge-sheet filed

25Non-appearance of accused served with notice to appear

26Notice to appear does not commence proceeding

Chapter 3—Summary Procedure

Part 3.1—When a Summary Hearing May Be Held

27Summary offences

28Indictable offences that may be heard and determined
summarily

29When an indictable offence may be heard and determined summarily

30Procedure for indictable offences that may be heard and determined summarily

Part 3.2—Procedure before Summary Hearing

Division 1—General

31Court may change place of hearing

32Accused entitled to copy of charge-sheet and particulars

33Unrepresented accused who requires legal advice

34Return of property

Division 2—Pre-hearing disclosure of prosecution case

35When preliminary brief is to be served

36How preliminary brief must be served

37Contents of preliminary brief

38Requirements for informant's statement in preliminary brief

39When full brief must be served

40How full brief must be served

41Contents of full brief

42Continuing obligation of disclosure

43Accused may make request for material etc. not provided

44Informant must comply with request or state grounds of refusal

45Grounds on which informant may refuse disclosure

46Accused may apply for order requiring disclosure

47Rules with respect to statements

48Disclosure of address or telephone number of witness

49Informant may place material on database

Division 3—Preliminary disclosure of case of accused

50Expert evidence

51Alibi evidence

52Offence to communicate with alibi witness

Division 4—Mention hearing and contest mention hearing

53Mention hearing

54Summary case conference

55Contest mention hearing

Part 3.3—Summary Hearing

Division 1—Joint or separate hearing of charges

56Multiple charges on single charge-sheet or multiple accused named on single charge-sheet

57Joint hearing of charges on separate charge-sheets

58Order for separate hearing

Division 2—Diversion program

59Adjournment to undertake diversion program

Division 3—Sentence indication

60Court may give sentence indication

61Effect of sentence indication

Division 4—Entering a plea

62Charge to be read or explained to accused before plea

63Legal practitioner may enter plea on behalf of accused

64Refusal to plead

Division 5—Opening addresses

65Parties may give opening addresses

Division 6—Case for the accused

66Accused entitled to respond after close of prosecution case

67Election when accused is legally represented

68Election when accused is not legally represented

69Procedure for joint hearings if nocase submission made

70Questioning to determine proper course of proceeding

71Opening address of accused at beginning of case for the
accused

72Evidential burden on accused for exceptions etc.

Division 7—Closing addresses

73Prosecutor's closing address

74Closing address of the accused

75Supplementary address by prosecutor

Division 8—Determination of charge

76Option of finding of attempt

Division 9—Criminal record

77Criminal record

78Proof of previous convictions by criminal record

Division 10—Non-appearance of party

79Non-appearance of informant

80Non-appearance of accused charged with summary offence

81Non-appearance of accused charged with indictable offence

82Non-appearance of corporate accused charged with indictable offence

83Admissibility of evidence in absence of accused where full
brief served

84Admissibility of evidence in absence of accused where preliminary brief served

85Non-appearance of accused—Infringements Act2006

86Proof of criminal record in absence of accused

87Limitations on sentencing in absence of accused

Part 3.4—Rehearing

88Right to apply for rehearing

89Notice of intention to apply for rehearing

90Service of notice

91Stay of sentence etc.

92Court may order rehearing

93Failure to appear on application

94Automatic rehearing in certain cases

Chapter 4—Committal Proceeding

Part 4.1—Preliminary

95Definition

96When a committal proceeding must be held

97Purposes of a committal proceeding

98When a committal proceeding commences

99Time limit for determining certain committal proceedings for
a sexual offence

100Hearings in a committal proceeding and attendance of accused

Part 4.2—Filing Hearing

101Filing hearing

102Time limit for filing hearing

Part 4.3—Compulsory Examination

103Application for order

104Order for compulsory examination hearing

105Notice of compulsory examination order to be served

106Compulsory examination hearing

Part 4.4—Pre-hearing Disclosure of Prosecution Case

107Informant must serve hand-up brief

108How hand-up brief must be served

109Copy hand-up brief to be filed and forwarded to DPP

110Contents of hand-up brief

111Continuing obligation of disclosure

112Rules with respect to statements

113Rules with respect to recordings

114Disclosure of address or telephone number of witness

115Inspection of exhibits

116Informant may serve and file plea brief

117Contents of plea brief

Part 4.5—Case Direction

118Case direction notice

119Contents of case direction notice

120Late application for leave to cross-examine witness

121Adjournment without appearance of parties

122Compliance with request to copy or inspect items or disclose previous convictions of witness

123No cross-examination of certain witnesses in sexual offence cases

124Leave required to cross-examine other witnesses

Part 4.6—Committal Mention and Case
Conference

125Committal mention hearing

126Time for holding committal mention hearing

127Committal case conference

Part 4.7—Committal Hearing

128Committal hearing

129Attendance of witnesses

130Giving of evidence by witnesses

131Disclosure of address or telephone number of witness

132Cross-examination of witnesses

133Special rules applicable to sexual offences

134Failure of witness to attend committal hearing

135Court may permit accused to be absent from committal
hearing

136Accused who absconds etc. during a committal hearing

137Accused (natural person) absent at close of prosecution case

138Procedure on accused's attendance after absence

Part 4.8—Evidence in Committal Proceeding

139Admissibility of non-oral evidence

140Procedure if accused makes admission of relevant fact or
matter

Part 4.9—Determination of Committal
Proceeding

141Determination of committal proceeding where hand-up brief
used

142Determination of committal proceeding where plea brief used

143Determination of committal proceeding where accused elects
to stand trial

144Procedure before and on committing accused for trial

Part 4.10—Procedure After Committal

145Transfer of summary offences that are related offences on or
after committal

146Documents to be forwarded to DPP

147Accused entitled to copies of depositions and exhibits

148Absent corporate accused to be notified of committal

Part 4.11—Taking Evidence After Accused Committed for Trial

149Application for order that evidence be taken after committal

150Determination of application

151Attendance of witness

152Taking of evidence after committal

Part 4.12—General

153Special mention hearing

154Non-appearance of corporate accused

155Nature of committal proceeding

156Nothing in Chapter affects certain powers of DPP

157DPP may give directions for release of property tendered in evidence

Chapter 5—Trial on Indictment

Part 5.1—Introduction

158Application of Chapter

Part 5.2—Indictment and Place of Trial

159DPP or Crown Prosecutor may file an indictment

160Choice of Supreme Court or County Court for filing an indictment

161Direct indictment commences criminal proceeding

162Filing of any other indictment does not commence criminal proceeding

163Time limits for filing certain indictments

164Filing of fresh indictment

165Order for amendment of indictment

166Errors etc. in indictment

167Supreme Court may order that accused be tried in County
Court or Supreme Court

168Court may transfer certain charges to Magistrates' Court

169Place of hearing of criminal trial

170Multiple charges or multiple accused on single indictment

Part 5.3—Notifying Accused of Indictment

171Copy indictment to be served

172DPP may nominate address etc. for service of documents

173Extra notice for corporate accused

174Compelling attendance when direct indictment filed

175Service of summons

176Warrant to be accompanied by indictment and notice

Part 5.4—Discontinuing a Prosecution

177DPP may discontinue a prosecution without adjudication

178Release from custody on discontinuance of prosecution

Part 5.5—Pre-trial Procedure

Division 1—Directions hearings

179Directions hearing

180Accused may be arraigned at a directions hearing

181Powers of court at directions hearing

Division 2—Pre-trial disclosure

182Summary of prosecution opening and notice of pre-trial admissions

183Response of accused to summary of prosecution opening and notice of pre-trial admissions

184Intention to depart at trial from document filed and served

185Continuing obligation of disclosure

186Disclosure of address or telephone number of witness

187Previous convictions of witness

188Prosecution notice of additional evidence

189Expert evidence

190Alibi evidence

191Offence to communicate with alibi witness

Division 3—Orders

192Power to change place of trial

193Order for separate trial

194Order for separate trial—sexual offences

195Order for separate trial—conspiracy

196Other powers of court not affected

197Order for legal representation for accused

198Order for taking evidence from a witness before trial

Division 4—Procedure for pre-trial orders and other decisions

199Court may make orders and other decisions before trial

200Disclosure of pre-trial issues

201Court may decide pre-trial issue without a hearing

202Hearing of application for exclusion of evidence

203Judge at pre-trial hearing need not be trial judge

204Pre-trial orders and other decisions generally binding on trial judge

205Pre-trial orders and other decisions may be applied in new trial

206Procedure if prosecution proposes not to lead evidence

Part 5.6—Sentence Indication

207Court may give sentence indication

208Application for sentence indication

209Effect of sentence indication

Part 5.7—Trial

Division 1—Preliminary

210When trial commences

211Time limit for commencing trial for offences other than
sexual offences

212Time limits for commencing trials for sexual offences

213Powers of trial judge not affected

214Non-appearance of corporate accused at trial

Division 2—Arraignment

215Arraignment

216Written pleas of guilty may be accepted

217Arraignment in presence of jury panel

218Special pleas in addition to plea of not guilty

219Plea of guilty to alternative offence

220Form of plea of previous conviction or previous acquittal

221Refusal to plead

Division 3—Assisting the jury

222Judge may address jury

223Jury documents

Division 4—Opening addresses

224Opening address by prosecutor

225Response of accused to prosecution opening

Division 5—Case for the accused

226Accused entitled to respond after close of prosecution case

227Election when accused is legally represented

228Election when accused is not legally represented

229Procedure for joint trials if no-case submission made

230Questioning to determine proper course of proceeding

231Opening address of accused

Division 6—Giving of evidence

232Manner of giving evidence

233Introduction of evidence not previously disclosed

Division 7—Closing addresses and judge's directions to the jury

234Prosecution closing address

235Closing address of the accused

236Supplementary prosecution address

237Comment on departure or failure

238Judge's directions to the jury

Division 8—Alternative verdicts and discharge of jury from delivering verdict

239Alternative verdicts on charges other than treason or murder

240Judge may order that guilt in respect of alternative offences is
not to be determined

241When judge may enter finding of guilty or not guilty

Part 5.8—General

Division 1—Hearing of charges for related and unrelated summary offences

242Summary offence related to indictable offence

243Unrelated summary offence

Division 2—Criminal record

244Criminal record

245Proof of previous convictions by criminal record

Division 3—Powers and obligations

246Attendance of accused at hearings

247Power to extend or abridge time

248Parties must inform Juries Commissioner of certain events

249Counsel required to retain brief for trial

250Complaints about legal practitioners

251Judge at earlier trial not prevented from presiding at later trial

252Offence for corporate accused to fail to appear

253Abolition of grand jury procedure

Chapter 6—Appeals and Cases stated

Part 6.1—Appeal from Magistrates' Court to County Court

Division 1—Appeal by offender

254Right of appeal

255How appeal is commenced

256Determination of appeal

Division 2—Appeal by DPP against sentence

257DPP's right of appeal against sentence

258How appeal is commenced

259Determination of DPP's appeal

Division 3—Appeal by DPP—Failure to fulfil undertaking

260DPP's right of appeal—failure to fulfil undertaking

261How appeal is commenced

262Determination of DPP's appeal—failure to fulfil undertaking

Division 4—Procedure

263Late notice of appeal deemed to be application for leave to
appeal

264Stay of order

265Bail pending appeal

266Abandonment of appeal

267Appellant's failure to appear

268Respondent's failure to appear on appeal by DPP

269One notice of appeal for 2 or more sentences

270Appeal against aggregate sentence

271Appeal to County Court authorised by other Acts

Part 6.2—Appeal from Magistrates' Court to Supreme Court on a Question of Law

272Appeal to Supreme Court on a question of law

273Appeal on question of law precludes appeal to County Court

Part 6.3—Appeal and Case Stated from County Court or Trial Division of Supreme Court to Court of Appeal

Division 1—Appeal against conviction

274Right of appeal against conviction

275How appeal is commenced

276Determination of appeal against conviction

277Orders etc. on successful appeal

Division 2—Appeal by offender against sentence

278Right of appeal against sentence imposed by originating court

279How appeal is commenced

280Determination of application for leave to appeal

281Determination of appeal

282Orders etc. on successful appeal

283Right of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court

284How appeal is commenced

285Determination of appeal

286Orders etc. on successful appeal

Division 3—Crown appeal against sentence

287Right of appeal—inadequate sentence

288How appeal is commenced

289Determination of Crown appeal

290Orders etc. on successful appeal

291Right of appeal—failure to fulfil undertaking

292How appeal is commenced

293Determination of Crown appeal—failure to fulfil undertaking

294Powers of Court of Appeal on successful appeal

Division 4—Interlocutory appeal

295Right of appeal against interlocutory decision

296Review of refusal to certify

297When leave to appeal may be given

298How interlocutory appeal is commenced

299Adjournment of trial if leave to appeal given

300Determination of appeal

301Determination of interlocutory appeal to be entered on record

Division 5—Case stated for Court of Appeal

302Reservation of question of law

303Adjournment if question of law reserved

304Refusal to reserve question of law

305Case to be stated if question of law reserved

306General powers of Court of Appeal on case stated

307Judgment to be entered on record

308DPP may refer point of law to Court of Appeal

Division 6—Status of sentences and orders during appeal period

309Sentence not stayed during appeal period

310Bail pending appeal

311Stay of certain orders during appeal period

312Execution of order for forfeiture or destruction of property

Division 7—Powers and procedure

313Extension of time for filing or serving notice of appeal or
notice of application for leave to appeal

314Abandonment of appeal

315Powers which may be exercised by a single Judge of Appeal

316Trial judge may be required to provide report on appeal

317Production of documents, exhibits or other things

318Order for examination of compellable witness

319Evidence of competent but not compellable witness

320Reference of question to special commissioner

321New evidence—effect on sentence

322Sentence in absence of offender

323Bail following appeal

324Warrants

325Ancillary orders of originating court

326Expenses of assessors and special commissioners

Chapter 7—Reference TO COURT OF APPEAL on petition for mercy

327Reference by Attorney-General

Chapter 8—General

Part 8.1—Conduct of Proceeding

328Appearance

329When accused etc. is required to appear at hearing

330When accused etc. is required to attend hearing

331Power to adjourn proceeding

332Transfer of accused between place of detention and court

333Power to return accused to youth justice centre

334Proceedings against bodies corporate

335Interpreter

336Subpoenas and witness summonses

337Court may act on application or on own motion

Part 8.2—Service of Documents

338General rules as to service

339Personal service

340Service on informant or DPP

341Service on company, registered body, incorporated association
or other body corporate

342Ordinary service

343Personal service satisfies ordinary service

344Last known place of residence or business

345Order for substituted service

346Who may effect service

347Proof of service

Part 8.3—Costs

Division 1—Preliminary

348Right to be heard

Division 2—Costs in summary proceedings and committal proceedings

349Costs in Magistrates' Court

350Notice to appear

351Convicted accused to pay filing fee

Division 3—Costs in trials on indictment

352Costs in the Supreme Court and County Court

353Costs order

Division 4—Costs on appeal

354Costs on appeal to County Court

355Costs on abandonment of appeal to County Court

356Costs on appeal from Magistrates' Court to Supreme Court
on a question of law

357No costs on appeal to Court of Appeal or on new trial

Division 5—Legal practitioners

358Costs liability of legal practitioner

Part 8.4—Miscellaneous

359Issue of warrant to arrest

360Power to amend when there is a defect or error

361Transfer of charge to court with jurisdiction

362Court may direct that a person be prosecuted for perjury

363Disclosure of material by prosecution

364Court fees not payable by accused

365Supreme Court—limitation of jurisdiction

366Rules of court

367Regulations

Chapter 9—REPEALS AND CONSEQUENTIAL AND
OTHER AMENDMENTS

Part 9.1—Crimes (Criminal Trials) Act 1999

368Repeal

Part 9.2—Crimes Act 1958

369Amendment of the Crimes Act 1958

Part 9.3—Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997

370New section 14A inserted

14AAppeal in relation to fitness to plead

371New section 24AA inserted

24AAAppeal against mental impairment verdict

372Consequential amendments

Part 9.4—Magistrates' Court Act 1989

373Joint committals

374Consequential amendments

Part 9.5—Children, Youth and Families Act 2005

375Definitions inserted

376New Part 5.1A inserted in Chapter 5

Part 5.1A—COMMENCEMENT OF PROCEEDINGS

344ATime limits for filing a charge

344BApplication for extension of time for commencement
of proceeding

344CExtension of time

344DRehearing

377New section 516A inserted

516AJoint committal proceedings

Part 9.6—Appeal Costs Act 1998

378New sections 15A, 15B and 15C inserted

15AApplication for indemnity certificate if interlocutory appeal by accused is successful

15BApplication for indemnity certificate by respondent
if interlocutory appeal by prosecution

15CApplication for indemnity certificate if case stated
for Court of Appeal

Part 9.7—Sentencing Act 1991

379Repeal

380New section 112A inserted

112AMaximum fine for indictable offence heard and determined summarily

381Maximum fine for body corporate

Part 9.8—Miscellaneous Amendments

382Reclassification of certain offences

383Option of jury trial removed

384Repeal of provisions concerning sentence indications in
Supreme Court and County Court

385Repeal of Chapter

______

SCHEDULES

SCHEDULE 1—Charges on a Charge-Sheet or Indictment

1Statement of offence

2Statement of particulars

3Statutory offence

4Exceptions, exemptions etc.

5Joinder of charges

6Charge against multiple accused

7Descriptions generally

8Description of persons

9Description of document

10Description of property

11Statement of intent to deceive, injure or defraud

12Perjury, subornation of perjury, etc.

13Names of witnesses to be included on indictment

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

1Common law

2Control of Weapons Act 1990

3Crimes Act 1958

4Dangerous Goods Act 1985

5Drugs, Poisons and Controlled Substances Act 1981

6Electricity Industry Act 2000

7Electricity Safety Act 1998

8Environment Protection Act 1970

9Equipment (Public Safety) Act 1994

10Firearms Act 1996

11Food Act 1984

12Gas Industry Act 2001

13Gas Safety Act 1997

14Health Records Act 2001

15Heritage Act 1995

16Infertility Treatment Act 1995

17Information Privacy Act 2000

18Juries Act 2000

19Major Events (Aerial Advertising) Act 2007

20Occupational Health and Safety Act 2004

21Police Regulation Act 1958

22Pollution of Waters by Oil and Noxious Substances
Act 1986

23Prostitution Control Act 1994

24Road Management Act 2004

25Sex Offenders Registration Act 2004

26Sports Event Ticketing (Fair Access) Act 2002

27Tobacco Act 1987

28Water Act 1989

29Water Industry Act 1994

SCHEDULE 3—Persons who may Witness Statements in Preliminary Brief, Full Brief or Hand-up Brief

═══════════════

Endnotes

INDEX318

SectionPage

Victoria

SectionPage

Criminal Procedure Act 2009[†]

No. 7 of 2009

[Assented to 10 March 2009]

Criminal Procedure Act 2009
No. 7 of 2009

The Parliament of Victoriaenacts:

Criminal Procedure Act 2009
No. 7 of 2009

Chapter 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court;

(b)to introduce a new procedure permitting the service of a notice to appear in the Magistrates' Court;

(c)to provide new pre-trial disclosure requirements for the prosecution;

s. 1

(d) to provide for a 6-month timelimit for the filing of charges for summary offences in the Children's Court;

(e) to provide for the transfer to the County Court or Supreme Court of summary offences related to an offence to be tried on indictment by the relevant court;

(f) to abolish the procedure of indictment by grand jury;

(g) to provide for interlocutory appeals in criminal proceedings in the County Court and the Supreme Court;

(h) to clarify the tests relating to determination of appeals by the Court of Appeal;

(i) to provide for the stay of sentences on appeal;

(j) to amend the Sentencing Act 1991 to provide for a maximum fine that may be imposed for an indictable offence that is heard and determined summarily;

(k) to amend the Crimes Act 1958, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, theChildren, Youth and Families Act 2005 and the Appeal Costs Act 1998;

(l) to repeal the Crimes (Criminal Trials) Act 1999;

(m) to make consequential and other amendments.

2Commencement

s. 2

(1)This Chaptercomes into operation on the day after the day on which this Act receives the Royal Assent.

(2)Section 384 comes into operation on 1 July 2010.

(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

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