Criminal Procedure Act 2009

noreply@blogger.com (Dr Manhattan) — Sat, 26 Feb 2011 22:28:00 +0000

This is when information was most recently added, changed or removed on this site.

SCHEDULE 2

noreply@blogger.com (Dr Manhattan) — Sat, 26 Feb 2011 21:45:00 +0000

INDICTABLE OFFENCES THAT MAY BE HEARD AND DETERMINED SUMMARILY

1 Common law

1.1 Offences at common law of conspiracy to cheat and defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000.

1.2 Offences at common law of conspiracy to defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000.

2 Aboriginal Heritage Act 2006

2.1 Indictable offences under the Aboriginal Heritage Act 2006.

3 Assisted Reproductive Treatment Act 2008

3.1 Indictable offences under the Assisted Reproductive Treatment Act 2008.
Sch. 2 item 3A inserted by No. 13/2009 s. 79 (as amended by No. 68/2009 s. 97(Sch. item 14.10)).

3A Bus Safety Act 2009

Indictable offences under the Bus Safety Act 2009.

4 Crimes Act 1958

4.1 Offences under section 17 of the Crimes Act 1958 (causing serious injury recklessly).

4.2 Offences under section 27 of the Crimes Act 1958 (extortion with threat to kill).

4.3 Offences under section 54 of the Crimes Act 1958 (occupier, etc. permitting unlawful sexual penetration).

4.4 Offences under section 74 of the Crimes Act 1958 (theft), if—

(a) the amount or value of the property alleged to have been stolen does not in the judgment of the court exceed $100 000; or

(b) the property alleged to have been stolen is a motor vehicle.

4.5 Offences under section 75 of the Crimes Act 1958 (robbery), if the amount or value of the property alleged to have been stolen does not in the judgment of the court exceed $100 000.

4.6 Offences under section 76 of the Crimes Act 1958 (burglary), if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100 000.

4.7 Offences under section 77 of the Crimes Act 1958 (aggravated burglary), if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100 000.
Sch. 2

4.8 Offences under section 78 of the Crimes Act 1958 (removal of articles from places open to the public), if the amount or value of the article alleged to have been removed does not in the judgment of the court exceed $100 000.

4.9 Offences under section 81 of the Crimes Act 1958 (obtaining property by deception), if the amount or value of the property alleged to have been obtained does not in the judgment of the court exceed $100 000.

4.10 Offences under section 82 of the Crimes Act 1958 (obtaining financial advantage by deception), if the amount or value of the financial advantage alleged to have been obtained does not in the judgment of the court exceed $100 000.

4.11 Offences under section 83 of the Crimes Act 1958 (false accounting), if the amount or value of the alleged gain or loss does not in the judgment of the court exceed $100 000.

4.12 Offences under section 86 of the Crimes Act 1958 (suppression, etc. of documents), if the amount or value of the alleged gain or loss does not in the judgment of the court exceed $100 000.

4.13 Offences under section 88 of the Crimes Act 1958 (handling stolen goods), if—

(a) the stolen goods alleged to have been handled are a motor vehicle; or

(b) in any other case, the amount or value of the stolen goods alleged to have been handled does not in the judgment of the court exceed $100 000.

4.14 Offences under section 176 of the Crimes Act 1958 (receipt or solicitation of secret commission by agent), if the amount or value of the valuable consideration received, solicited, given or offered does not in the judgment of the court exceed $100 000.

4.15 Offences under section 178 of the Crimes Act 1958 (giving or receiving false or misleading receipt or account), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000.

4.16 Offences under section 179 of the Crimes Act 1958 (gift or receipt of secret commission in return for advice given), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000.

4.17 Offences under section 180 of the Crimes Act 1958 (secret commission to trustee in return for substituted appointment), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000.

4.18 Offences under section 181 of the Crimes Act 1958 (aiding and abetting offences within or outside Victoria), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000.

4.19 Offences under section 191 of the Crimes Act 1958 (fraudulently inducing persons to invest money).

4.20 Offences under section 194(1) or (2) of the Crimes Act 1958 (dealing with proceeds of crime), if—

(a) the property alleged to have been dealt with is a motor vehicle; or

(b) in any other case, the amount or value of the proceeds of crime alleged to have been dealt with does not in the judgment of the court exceed $100 000.
Sch. 2

4.21 Offences under section 195A(1) of the Crimes Act 1958 (dealing with property which subsequently becomes an instrument of crime), if the amount or value of the property alleged to have been dealt with does not in the judgment of the court exceed $100 000.

4.22 Offences under section 197(1) or (3) of the Crimes Act 1958 (destroying or damaging property) (including offences charged as arson), if the amount or value of the property alleged to be destroyed or damaged does not in the judgment of the court exceed $100 000.

4.23 Offences under section 198 of the Crimes Act 1958 (threats to destroy or damage property), if the amount or value of the property alleged to be threatened to be destroyed or damaged does not in the judgment of the court exceed $100 000.

4.24 Offences under section 199 of the Crimes Act 1958 (possessing anything with intent to destroy or damage property), if the amount or value of the property alleged to be intended to be destroyed or damaged does not in the judgment of the court exceed $100 000.

4.25 Offences under section 247B of the Crimes Act 1958 (computer offences), if the maximum penalty does not exceed level 5 imprisonment.

4.26 Offences under section 314 of the Crimes Act 1958 (perjury).
Sch. 2

4.27 Offences under section 321G of the Crimes Act 1958 (incitement) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies.

4.28 Offences under section 321M of the Crimes Act 1958 (attempt) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies.

4.29 Offences under section 325 of the Crimes Act 1958 (accessories) which are alleged to have been committed in relation to a serious indictable offence (within the meaning of that section) to which section 28(1) of this Act applies.

4.30 Offences under section 326(1) of the Crimes Act 1958 (concealing offences for benefit) which are alleged to have been committed in relation to a serious indictable offence (within the meaning of that section) to which section 28(1) of this Act applies.

5 Dangerous Goods Act 1985

5.1 Indictable offences under the Dangerous Goods Act 1985.

6 Drugs, Poisons and Controlled Substances Act 1981

6.1 Indictable offences under the Drugs, Poisons and Controlled Substances Act 1981, except for offences against sections 71, 71AA, 72 and 72A and offences against the following provisions as in force before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001—

(a) section 71(1) where the alleged offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence;

(b) section 72(1) where the alleged offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant.

7 Electricity Industry Act 2000

7.1 Offences under section 93A(1) or (2) of the Electricity Industry Act 2000.

7.2 Offences by a body corporate under section 97(7) of the Electricity Industry Act 2000.

7.3 Offences under section 97(11) of the Electricity Industry Act 2000.

8 Electricity Safety Act 1998

8.1 Offences under section 141A of the Electricity Safety Act 1998, but the maximum penalty that the court may impose on a body corporate is 10 000 penalty units.

9 Environment Protection Act 1970

9.1 Indictable offences under the Environment Protection Act 1970, but if there are 2 or more accused, one of whom is a natural person charged under section 66B of that Act and one of whom is a body corporate, and the charges must be heard together, the maximum fine that the court may impose on the natural person in respect of a single offence is 2500 penalty units.

Note
See section 56 as to when charges must be heard together.

10 Equipment (Public Safety) Act 1994

10.1 Indictable offences under the Equipment (Public Safety) Act 1994.

11 Firearms Act 1996

11.1 Offences under section 5(1A) of the Firearms Act 1996 (offence for prohibited person to possess, carry or use unregistered firearm).

11.2 Offences under section 7B(2) of the Firearms Act 1996 (offence to possess, carry or use an unregistered category E handgun).

12 Food Act 1984

12.1 Indictable offences under the Food Act 1984.

13 Gas Industry Act 2001

13.1 Offences under section 149A(1) or (2) of the Gas Industry Act 2001.

13.2 Offences by a body corporate under section 208(5) of the Gas Industry Act 2001.

13.3 Offences under section 210(1) of the Gas Industry Act 2001.

14 Gas Safety Act 1997

14.1 Offences under section 107 of the Gas Safety Act 1997, but the maximum penalty that the court may impose on a body corporate is 10 000 penalty units.

15 Health Records Act 2001

15.1 Indictable offences under the Health Records Act 2001.

16 Heritage Act 1995

16.1 Indictable offences under the Heritage Act 1995.

17 Information Privacy Act 2000

17.1 Indictable offences under the Information Privacy Act 2000.

18 Juries Act 2000

18.1 Indictable offences under the Juries Act 2000.

19 Major Sporting Events Act 2009

19.1 Indictable offences under the Major Sporting Events Act 2009.

20 Occupational Health and Safety Act 2004

20.1 Indictable offences under the Occupational Health and Safety Act 2004.

21 Police Regulation Act 1958

21.1 Offences under section 127A(1AB) of the Police Regulation Act 1958.

22 Pollution of Waters by Oil and Noxious Substances Act 1986

22.1 Indictable offences under the Pollution of Waters by Oil and Noxious Substances Act 1986, but subject to section 24C of that Act.

23 Prohibition of Human Cloning for Reproduction Act 2008

23.1 Indictable offences under the Prohibition of Human Cloning for Reproduction Act 2008.

24 Sex Work Act 1994

24.1 Offences under section 6(1) of the Sex Work Act 1994 (obtaining payment for sexual services provided by a child).

24.2 Offences under section 7(1) of the Sex Work Act 1994 (agreement for provision of sexual services by a child).

25 Rail Safety Act 2006

25.1 Indictable offences under the Rail Safety Act 2006.

26 Research Involving Human Embryos Act 2008

26.1 Indictable offences under the Research Involving Human Embryos Act 2008.

27 Road Management Act 2004

27.1 Indictable offences under the Road Management Act 2004.

28 Tobacco Act 1987

28.1 Indictable offences under the Tobacco Act 1987.

29 Transport Act 1983

29.1 Indictable offences under the Transport Act 1983.

30 Water Act 1989

30.1 Indictable offences under the Water Act 1989.

31 Water Industry Act 1994

31.1 Indictable offences under the Water Industry Act 1994.

Changes to the site

noreply@blogger.com (Dr Manhattan) — Sat, 12 Jun 2010 02:18:00 +0000

I've made some changes to the site over the weekend, including removing the subscription feature. Don't worry; if there's major additions to the commentary or a landmark case is handed down, you'll still hear about it via our QCIC feed. Not signed up yet? Go there now.

We'll continue to add commentary to the Criminal Procedure Act 2009 as it evolves.

House rules

noreply@blogger.com (Dr Manhattan) — Thu, 29 Apr 2010 00:09:00 +0000

Edit: In response to some feedback, I should clarify that the NSW/Vic/Tas interstate divide extends beyond interlocutory appeals into post-trial appeals also. I've tidied up the language of the original post so as to remove confusion.

When introducing the UEA I heard the predicted benefits grouped under three main headings:

(1) Reduction in complexity of evidence law;
(2) Reduction in cost of the legal process;
(3) Consistency across Australian jurisdictions.

The first two are presumably linked together by an expectation that (1) will produce (2). The accuracy of either can be doubted.

PNJ v DPP (discussed below) demonstrates that the UEA fails to produce (3), as well. (A point I wasn't brave or original in making last year in The NSW Supreme Court in Victoria). The Court of Appeal didn't even stop to mention the purpose at s 1 when stating a preference for the traditional Victorian approach over the one taken in NSW.

Whether the approach taken in interlocutory appeals must be the same as that taken at a post-trial appeal is a question for another time, but tentatively I question if that is so. The tests applicable for an appeal against conviction (and particularly the application of the proviso) are necessarily different than those confronting the Court during an interlocutory appeal.

There's an expectation that an increase in interlocutory appeals will lead to a reduction in post-trial appeals. Whether that will occur remains to be seen, but appears as unlikely to me as the predictions that were made about the UEA.

The first truly significant point of departure from the NSW Court of Appeal on the so-called Uniform Evidence Laws has arrived.

In PNJ v DPP [2010] VSCA 88, Maxwell P, Buchanan and Bongiorno JJ rejected the notion that interlocutory appeals under s 295 should be decided according to the principles of House v The King (1936) 55 CLR 499. In House, the High Court set out the test appellate courts apply when reviewing the discretionary decision of lower court. Dixon, Evatt and McTiernan JJ,

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Short version: appeal courts aren't supposed to step into the shoes of the original decision-maker and ask themselves if that was the call they would have made.

In NSW, the Criminal Court of Appeal have traditionally determined that the House test applies to an appeal under s 395: R v Fletcher (2005) 156 A Crim R 308, Simpson JA (McClellan CJ at CL agreeing, Rothman J dissenting). See also R v Zhang (2005) 227 ALR 311 where Simpson J (Buddin J agreeing) restated the law as in Fletcher, and Basten JA dissented.

The dissenting judgment of Basten JA at 45,

45 At [139] below, Simpson J seeks to adopt an approach to the application of s 98, which her Honour set out in respect of s 97 in R v Fletcher [2005] NSWCCA 338 at [32]- [35]. Two preliminary points may be made in relation to that material. First, her Honour stated in Fletcher at [32] that a decision about the admissibility of evidence “necessarily and of itself involves the determination of a question of law”. That proposition may cover several issues. For example, wrongful admission of evidence may mean that the trial proceeded on a legally erroneous basis, but the error in assessing admissibility need not be a legal error: c.f. R v Gidley [1984] 3 NSWLR 168, 169-170 (Mahoney JA). However, that issue need not be addressed for present purposes. More importantly, her Honour suggested in the same paragraph that appellate challenge to such a decision, which involves “an evaluative process”, may only be made in limited circumstances which she identified at [48] in Fletcher by reference to the principles established in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505. House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of “evaluation and judgment”: see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Combes [1979] HCA 9; (1979) 142 CLR 531.

46 A separate concern relates to the five principles identified by her Honour in undertaking the exercise required under s 98 of the Evidence Act, at [139] below. The first two principles set out are unexceptionable. The third principle introduces a concept of the “actual probative value” of evidence, being the probative value assigned by the jury. The decision under s 98 is then said to be a two stage process by which the trial judge first identifies whether evidence is “capable of” rationally affecting the probability of a fact in issue, and, secondly, evaluating the likelihood that the jury would assign the evidence significant probative value. I do not agree with that approach, nor do I think it is supported by the judgment of Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457. His Honour’s discussion in Lockyer, at least at 460, was concerned with the exercise required by s 135 (and one might add, relevantly for present purposes, s 101(2)), namely the assessment of whether the probative value outweighs any prejudicial effect. It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of “probative value” requires such an exercise. That conclusion follows from the definition of “probative value” in the Dictionary to the Act, namely “the extent to which the evidence could rationally affect the assessment of the probability” of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98.

47 It follows that, in my view, her Honour has set herself a legally incorrect test at [139] below and has applied an overly constrained approach in her assessment of factual findings, limited by the principles stated in House: see [141] below.

The Victorian Court of Appeal prefers Basten JA's analysis, bolstered by the Tasmanian Chief Justice's decision in L v Tasmania (2006) 15 Tas 381. (Whichever way a Victorian court went, it would still leave the eastern states with an inconsistent approach.)

Underwood CJ [at 52] in L v Tasmania (Tennant J agreeing, Crawford J examining the issue but expressing no judgment),

52 Whether or not evidence is admissible is a question of law. The determination of the question may require the trial judge to find certain facts, the existence of which constitute a condition precedent for the admission of the evidence. See Sinclair v R [1946] HCA 55; (1946) 73 CLR 316 at 325 - 326. In cases where the admission of evidence is dependent upon an evaluation process such as that imposed by the Act, ss97(1) and 98(1), the determination of the trial judge is, as Spigelman CJ said in Ellis, not an exercise of discretion, but a matter of judgment.

Though not argued, the Victorian Court of Appeal held in PNJ v DPP,

15 A question arose, at the commencement of argument on the application for leave to appeal, as to the nature of the appeal from a ruling of this kind. As noted by Stephen Odgers SC in his Uniform Evidence Law in Victoria, the New South Wales Court of Criminal Appeal has (by majority) held that a decision of this kind is reviewable on appeal only on the principles stated in House v The King. That view was expressed by Simpson J (with whom McClellan CJ at CL agreed) in R v Fletcher, and her Honour adopted the same approach (with the concurrence of Buddin J) in R v Zhang. In the latter case, however, Basten JA in dissent expressed the view that the appeal court should decide for itself whether the relevant evidence was admissible.

16 On this application, senior counsel for the Crown accepted that the Court should, if leave to appeal were granted, decide for itself whether the coincidence evidence was admissible. Unsurprisingly, counsel for the applicant concurred. We have approached the matter on that basis. With respect to those members of the New South Wales Court of Criminal Appeal who have taken a different view, we think that the analysis of Basten JA in Zhang, together with that of Underwood CJ in L v Tasmania, accords with the approach which this Court has consistently taken in dealing on appeal with questions of admissibility of evidence.

It's possible that the NSW Court of Appeal, when it inevitably re-visits this issue, will reach the same conclusion as its southern neighbours. But for now NSW and Victoria divide on the appropriate test to apply in appeals.

CPA Legislative Guide

noreply@blogger.com (Dr Manhattan) — Thu, 25 Mar 2010 11:04:00 +0000

The newly-released Criminal Procedure 2009 Legislative Guide is a unique (and useful) educational tool.

It's not quite the Explanatory Memorandum to the Act, but that might be the most appropriate thing to compare it to. It goes through the CPA section by section, separating out each provision under three headings of Overview, Legislative History, and Discussion.

Perhaps most handy will be the many tables and diagrams in the 386-page document. They convey the processes and relationships that DOJ originally intended for the Act. (For example, the flowchart on page 303 explains when an accused is required to appear at court and when they are required to attend, something that I still find confusing).

Hardcopies of the Guide are going to be made available from the Law Institute and Information Victoria.

Summary case conference not the time to dismiss charges

noreply@blogger.com (Elucubrator) — Fri, 05 Mar 2010 13:30:00 +0000

Section 54 of the Criminal Procedure Act 2009 provides for summary case conferences between the prosecution and accused in a summary proceeding.

It's essentially a case-flow management system, or compulsory pre-trial conference, intended to make the parties sit down and sensibly resolve what can be resolved, and identify with some precision and particularity issues that can be resolved, so valuable court time is used productively.

There's deliberately not a lot of detail in the Act about how or where a summary case conference should happen, to make it as flexible as possible for the parties to talk. The Magistrates' Court's Practice Direction 6 of 2009 Summary Case Conference Procedure doesn't add much, and nor does rule 21 of the Magistrates' Court Criminal Procedure Rules 2009.

But a recent South Australian decision considering similar provisions there suggests that while summary case conferences are subject to curial control, they're not a step in the curial process and so the court can't dismiss charges at that stage — even if they're called into open court.

A magistrate dismissed a charge of criminal damage at a pre-trial conference, largely because the prosecution had stuffed around for too long and hadn't complied with its disclosure obligations.

The Supreme Court held in Police v Beard [2010] SASC 49 that the magistrate didn't have the power to do that at a pre-trial stage — but in some cases either a permanent stay or costs order would be warranted.

Is your adjournment request "good"?

noreply@blogger.com (Dr Manhattan) — Sat, 27 Feb 2010 00:40:00 +0000

The folks responsible for the government's end of the Criminal Procedure Act have released a Best Practice Guide to the new procedures:

Summary case conferencing is now available at all metropolitan Magistrates’ Courts (except Melbourne where it will be introduced on 15 March) as well as Ballarat and Geelong. It is one of the new features of the Criminal Procedure Act 2009. Other significant features include the Notice to Appear and preliminary briefs.

The Best Practice Guide was commissioned by the Summary Procedure Steering Group which oversees the implementation and roll out of the changes. It aims to promote common understanding of the legislative framework and provide best practice advice. It is important for criminal law practitioners to appreciate the impact that the changes may have on their practice.

It's hardly comprehensive, but offers the most detail so far of what the powers-that-be have in mind for the summary process. One of the key points seems to be an expectation that the Magistrates' Court will refuse many adjournment applications which would previously have been granted as a matter of course (at page 7):

The Good Adjournment

In Notice to Appear cases a spare copy of the preliminary brief will be available at court on the return date. Therefore, a case can no longer be adjourned because the accused or their legal practitioner does not have a copy of the brief.

It also means that where a summary case conference could not be conducted before court, it can now be conducted at court on the return date. The idea that an accused is entitled to a couple of initial adjournments without question will be a thing of the past. The accused will no longer automatically obtain an adjournment at the counter.

Generally, adjournments should only occur to advance the progress of the case. Good adjournments will be for:

• a plea hearing

• to obtain further disclosure

• to obtain the full brief

• contest mention

• contested hearing.

The Magistrates' Court of Victoria Listing Protocols (updated in January) don't offer much more explanation of this, although they do seem to suggest that adjournments may be shorter than previously granted:

Listing Timeframes

The Court aims to list criminal cases in accordance with the following timeframes:

* Return Date to further mention hearing: 2-4 weeks

* Return Date/second mention hearing to plea: 2-4 weeks

* Return Date to contest mention hearing: 4-8 weeks

* Return Date to hearing (less than 1 Day with Case Conference, if appropriate) but no contest mention: 6-10 weeks

* From contest mention hearing to hearing: 10-14 weeks

The above timeframes do not apply to cases involving persons in custody.

Note: Return Date is the first date on which the proceeding is listed before the Court Proceedings may be adjourned at the discretion of the court. There is no right to an "automatic" adjournment on the first return of a case. One of the case management objectives of the court is to reduce delay.

None of these guidelines are referred to by the Act. How strictly they will be adhered to remains to be seen. It seems likely that, until funding issues for counsel are resolved, the new procedures may prove difficult to comply with.

Notices to Appear

noreply@blogger.com (Dr Manhattan) — Thu, 04 Feb 2010 14:49:00 +0000

Notices to Appear are a new method for police and other authorised officials to require an accused person to appear before the Magistrates' Court.

They are an alternative to summons or bail procedures, and may be used for any summary offence or indictable offence triable summarily. The form of a Notice to Appear is set out at Form 7 of the Magistrates' Court Criminal Procedure Rules 2009.

Notices to Appear are dealt with in Division 2 of Part 2.3 of the Criminal Procedure Act 2009, ss 22 - 26. Although these provisions came into effect on 1 January 2010, courts and the police are using a staggered introduction of these new notices.

The proposed commencement dates for the rollout of the process across metropolitan Magistrates' Court locations are:

February – Heidelberg and Ballarat

May – Broadmeadows

June – Sunshine

July – Frankston

August – Melbourne and Neighbourhood Justice Centre

September – Dandenong

October – Moorabbin

December – Ringwood

VLA lawyer Paul Jansen is working with the Victoria Police on the roll-out of these new summary procedures. He's included a lot of useful information on the VLA website, including a two-page summary of how the new system is supposed to work.

So what's important here?

noreply@blogger.com (Dr Manhattan) — Sun, 31 Jan 2010 08:49:00 +0000

Well, it's all important.

But, if I were on a really tight schedule I would have a look at Chapter 8, under the innocuous-sounding title of General.

What will make the Evidence Act 2008 so difficult for generations of legal students to come is that it's natural, given the title it has been given and the way it has been laid out, to assume that it's a one-stop shop on evidence law. And, come to think of it, that's the way it was sold, too.

Then you get to s 8 of that Act and realise that any contradictory provision in any other act is going to have primacy.

So for that reason alone, dip into s 328 through 389 and see how they modify the existing law.

410. Costs liability of legal practitioner

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:25:00 +0000

410. Costs liability of legal practitioner

(1) If a legal practitioner for a party to—

(a) a criminal proceeding in the Magistrates' Court; or

(b) a criminal proceeding in the Supreme Court or the County Court before the commencement of trial—

whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by undue delay or negligence or by any other misconduct or default, the court may make an order that—

(c) all or any of the costs between the legal practitioner and the client be disallowed or that the legal practitioner repay to the client the whole or part of any money paid on account of costs; or

(d) the legal practitioner pay to the client all or any of the costs which the client has been ordered to pay to any party; or

(e) the legal practitioner pay all or any of the costs payable by any party other than the client.

(2) Without limiting subsection (1), a legal practitioner is in default for the purposes of that subsection if a proceeding cannot conveniently be heard or proceed, or fails or is adjourned without any useful progress being made, because the legal practitioner failed to—

(a) attend in person or by a proper representative; or

(b) file any document which ought to have been filed; or

(c) file any document in court which ought to have been filed; or

(d) lodge or deliver any document for the use of the court which ought to have been lodged or delivered; or

(e) be prepared with any proper evidence or account; or

(f) otherwise proceed.

(3) The court may order that notice of a proceeding or order against a legal practitioner under this section may be given to the client in any manner that the court directs.

403. Convicted accused to pay filing fee

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:21:00 +0000

403. Convicted accused to pay filing fee

If—

(a) a charge-sheet containing one or more charges is filed with a registrar of the Magistrates' Court; and

(b) no filing fee is payable because of an exemption provided for in the regulations; and

(c) the accused is convicted of one or more of the alleged offences and is ordered to pay a fine—

the Magistrates' Court must order the accused to pay by way of costs, in addition to the amount of the fine and any other costs, the amount of the filing fee that, but for the exemption, would have been payable.

Victoria Police are exempt from paying filing fees.

402. Notice to appear

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:17:00 +0000

402. Notice to appear

(1) If a notice to appear lapses under section 22(1) and notice is given in accordance with section 23, the member of the police force or public official who served the notice is not liable for any costs of the person served with the notice in respect of the serving or lapsing of the notice.

(2) If a notice to appear lapses under section 22(1) and notice is not given in accordance with section 23, the Magistrates' Court may award costs against the member of the police force or public official who served the notice as if the notice to appear were a criminal proceeding in the Magistrates' Court.

401. Costs in Magistrates' Court

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:13:00 +0000

401. Costs in Magistrates' Court

(1) Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates' Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) In exercising its discretion under subsection (1) in a criminal proceeding, the Magistrates' Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the court is satisfied resulted in prolonging the proceeding.

(3) If the Magistrates' Court strikes out a charge under section 14(3), the court may award costs against the informant.

(4) This section and section 410 apply to a purported proceeding in the Magistrates' Court which is beyond the jurisdiction of the court as if the purported proceeding were within jurisdiction.

(5) If the Magistrates' Court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police.

This section grants the Magistrates' Court a wide discretion to award costs in a criminal proceeding. (Criminal proceedings are initiated using the procedure described found at s 5.) However, the Court must still comply with the requirement under s 400 to give the subject of a proposed costs order a reasonable opportunity to be heard.

The leading authority on costs, the High Court's decision in Latoudis v Casey (1990) 170 CLR 534, holds that costs ordinarily follow a failed prosecution [Toohey J, at 14]. The purpose of costs is not to punish the prosecution, but to indemnify the accused from the expense of defending themselves against charges which have not been proved (McHugh J at 3, though see also the dissenting judment of Dawson J on this point].

The costs awarded must be just and reasonable: Norton v Morphett (1995) 83 A Crim R 90.

Though Latoudis v Casey spoke against a presumption of costs as occurs in the civil jurisdiction, courts increasingly look to indemnify a successful defendant. What constitutes a successful defendant will depend upon the individual circumstances of the case: Do v Bowers (Unreported, Supreme Court of Victoria, O'Bryan J, 10 October 1996). In Costa v Parks [2008] VSC 47, Habersberger J extended this definition to include the raising of unsuccessful jurisdictional argument that unnecessarily delayed proceedings, though the charges eventually failed.

The prosecution may be entitled to costs. In Balshaw v CPS [2009] EWCA Crim 470 the UK Court of Appeal upheld a costs order for the preparation of a report by forensic accountants. Costs might be distinguishable between between costs of investigation, which may be recompensable, and those of prosecution.

Note also the provisions of s 410, which empowers a court to make specific orders about the fees charged by practitioners to their clients.

400. Right to be heard

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:07:00 +0000

400. Right to be heard

(1) Subject to subsection (2), the court must not make an order awarding costs against a person without giving that person a reasonable opportunity to be heard.

(2) Subsection (1) does not apply to an order for costs made on the hearing and determination of a charge in the absence of the accused in accordance with Division 10 of Part 3.3.

399. Proof of service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:05:00 +0000

399. Proof of service

(1) Service of a document may be proved by—

(a) oral sworn evidence; or

(b) affidavit; or

(c) declaration.

(2) Evidence of service must identify the document served and state the time and manner in which service was effected.

(3) A document purporting to be an affidavit or declaration under subsection (1)(b) or (1)(c) is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements in it.

(4) An affidavit or declaration under subsection (1)(b) or (1)(c) must be filed in court—

(a) in the case of service of a summons to answer to a charge for an indictable offence where a date for a filing hearing has been fixed, at least 2 days before the filing hearing;

(b) in the case of service of any other summons to answer to a charge, at least 7 days before the return date;

(c) in the case of service of any other document, a reasonable time before the hearing to which it applies.

398. Who may effect service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:02:00 +0000

398. Who may effect service

If by or under this Act a person is required or permitted to serve a document, the person may serve the document by causing it to be served by another person.

397. Order for substituted service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 11:00:00 +0000

397. Order for substituted service

If it appears to a court by sworn evidence, whether oral or by affidavit, that service cannot be promptly effected, the court may make an order for substituted service.

396. Last known place of residence or business

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:57:00 +0000

396. Last known place of residence or business

Rules of court may prescribe how the last known place of residence or business of an accused is to be ascertained in specified circumstances.

395. Personal service satisfies ordinary service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:55:00 +0000

395. Personal service satisfies ordinary service

If this Act requires or permits service of a document to be effected in accordance with section 394 or by ordinary service, the document may be served in accordance with section 391.

394. Ordinary service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:52:00 +0000

394. Ordinary service

(1) Unless this Act or any other Act or the rules of court otherwise provide, ordinary service of a document is effected—

(a) by sending a copy of the document by prepaid ordinary post addressed to the person to be served at the last known place of residence or business of the person; or

(b) if the person to be served is represented by a legal practitioner, by sending a copy of the document by prepaid ordinary post addressed to the legal practitioner at the ordinary business address of the legal practitioner; or

(ba) if the person to be served is represented by a legal practitioner who has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the legal practitioner into those facilities; or

(c) in any other manner agreed by the parties.

Notes

1 See section 49 of the Interpretation of Legislation Act 1984 as to service by post.

2 The Electronic Transactions (Victoria) Act 2000 applies to enable a document to be served electronically, including fax transmission and email, in accordance with that Act.

(2) If a document is delivered into the facilities of a document exchange in accordance with subsection (1)(ba), the day of service of the document is taken to be—

(a) the day following the day on which it is so delivered; or

(b) if the document is delivered on a Friday, the following Monday—
or on any other day that may be proved.

393. Service on company, registered body, incorporated association or other body corporate

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:48:00 +0000

393. Service on company, registered body, incorporated association or other body corporate

(1) If the person to be served is a company within the meaning of the Corporations Act, service of a document on the person may be effected in accordance with section 109X of that Act or in accordance with subsection (4).

(2) If the person to be served is a registered body within the meaning of the Corporations Act, service of a document on the person may be effected in accordance with section 601CX of that Act or in accordance with subsection (4).

(3) If the person to be served is an incorporated association within the meaning of the Associations Incorporations Act 1981, service of a document on the person may be effected in accordance with section 48 of that Act or in accordance with subsection (4).

(4) If the person to be served is a body corporate and service is not effected in accordance with subsection (1), (2) or (3), service of a document on the person must be effected—

(a) by leaving a copy of the document at the registered office or principal place of business of the body corporate; or

(b) by sending a copy of the document by prepaid ordinary post to the registered office or principal place of business of the body corporate; or

(c) if the body corporate is represented by a legal practitioner, by sending a copy of the document by prepaid ordinary post addressed to the legal practitioner at the ordinary business address of the legal practitioner; or

(d) by serving a copy of the document on a representative of the body corporate within the meaning of section 334 in a manner nominated in writing by the representative.

Note

The Electronic Transactions Act 1999 of the Commonwealth or the Electronic Transactions (Victoria) Act 2000 applies to enable a document to be served electronically, including fax transmission and email, in accordance with the relevant Act.

392. Service on informant or DPP

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:44:00 +0000

392. Service on informant or DPP

(1) In this section—
informant includes an appellant, applicant or respondent who was the informant at first instance.

(2) If the person to be served is the informant, a document may be served—

(a) by giving a copy of the document to—

(i) the informant; or

(ii) a person representing the informant at a hearing in relation to the charge; or

(b) by sending a copy of the document by prepaid ordinary post addressed to the informant at the business address nominated by the informant under section 18; or

(c) by sending a copy of the document by fax or email addressed to the informant at the fax number or email address nominated by the informant under section 18; or

(d) by leaving a copy of the document for the informant at the informant's business address nominated under section 18 with a person who appears to work there; or

(da) if the DPP has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the DPP into those facilities; or

(e) in any other manner agreed between the informant and the party serving the document.

(3) If the person to be served is the DPP, a document may be served—

(a) by giving a copy of the document to a person representing the DPP at a hearing in relation to the charge; or

(b) by leaving a copy of the document at the Office of Public Prosecutions with a person who appears to work there; or

(c) by sending a copy of the document by prepaid ordinary post addressed to the Office of Public Prosecutions at the ordinary business address of the Office of Public Prosecutions; or

(d) by sending a copy of the document by prepaid ordinary post addressed to the DPP at the business address, if any, nominated by the DPP under section 172; or

(e) by sending a copy of the document by fax or email addressed to the DPP at the fax number or email address, if any, nominated by the DPP under section 172; or

(f) in any other manner agreed between the DPP and the party serving the document.

(4) If a document is delivered into the facilities of a document exchange in accordance with subsection (3)(da), the day of service of the document is taken to be—

(a) the day following the day on which it is so delivered; or

(b) if the document is delivered on a Friday, the following Monday—
or on any other day that may be proved.

Notes

1 The Electronic Transactions (Victoria) Act 2000 applies to enable a document to be served electronically, including facsimile transmission and email, in accordance with that Act.

2 Section 172 provides that the DPP may nominate an address for service of documents.

391. Personal service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:38:00 +0000

391. Personal service

(1) Unless this Act or any other Act or the rules of court otherwise provide, personal service of a document must be effected in accordance with subsection (2), (3) or (4).

(2) Personal service of a document is effected by—

(a) giving a copy of the document to the person to be served; or

(b) if the person does not accept the copy, putting the copy down in the person's presence and telling the person the nature of the document; or

(c) leaving a copy of the document for the person at the person's last known or usual place of residence with a person who appears to be of or over the age of 16 years.

(3) If the person to be served is in detention or in immigration detention within the meaning of section 5 of the Migration Act 1958 of the Commonwealth, personal service of a document on the person may be effected by sending a copy of the document by registered post addressed to the person at the place of detention.

Note

See the definition of in detention in section 3.

(4) If a legal practitioner has given written notice to the informant or the prosecution that the legal practitioner represents an accused and is instructed to accept personal service of documents on behalf of the accused, personal service of a document on the accused may be effected by—

(a) giving a copy of the document to the legal practitioner; or

(b) leaving a copy of the document at the ordinary place of business of the legal practitioner with a person who appears to work there; or

(c) sending a copy of the document by registered post addressed to the legal practitioner at the ordinary business address of the legal practitioner.

390. General rules as to service

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:33:00 +0000

390. General rules as to service

Unless this Act or any other Act or the rules of court otherwise provide—

(a) if a document is to be served personally, it must be served in accordance with section 391;

(b) if a document is to be served on the informant or the prosecution, it must be served in accordance with section 392;

(c) if a document is to be served on a company, registered body, incorporated association or other body corporate, it must be served in accordance with section 393;

(d) in any other case, a document may be served in accordance with section 394.

389. Audiovisual link evidence from overseas in certain proceedings

noreply@blogger.com (Dr Manhattan) — Sun, 24 Jan 2010 10:28:00 +0000

389. Audiovisual link evidence from overseas in certain proceedings

(1) This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against section 49A(1) of the Crimes Act 1958.

(2) The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if—

(a) the witness will give the evidence from outside Australia; and

(b) the witness is not an accused in the proceeding; and

(c) the facilities required by subsection (3) are available or can reasonably be made available; and

(d) the court is satisfied that attendance of the witness at the court to give the evidence would—

(i) cause unreasonable expense or inconvenience; or

(ii) cause the witness psychological harm or unreasonable distress; or

(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link.

(3) A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting (the Victorian point) and the place where the evidence is given (the overseas point) are equipped with audiovisual facilities that—

(a) enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and

(b) enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point.

(4) The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence.

(5) An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either—

(a) by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or

(b) at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court.

(6) A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section.

(7) This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies.

(8) Nothing in this section limits the application of this Part to a charge for an offence against section 49A(1) of the Crimes Act 1958.

Section 49A(1) of the Crimes Act is principally directed to prohibiting the facilitation of sex tourism, but may also extend to other offences.