Crimes (Criminal Trials) Act 1999 - legislation.vic.gov.au · Crimes (Criminal Trials) Act 1999 ... Summary of prosecution opening and notice of pre-trial ... Counsel required to

i

Crimes (Criminal Trials) Act 1999 Act No. 35/1999

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1

1. Purpose 1 2. Commencement 1 3. Definitions 2

PART 2—PRESENTMENT TO BE FILED 3

4. Presentment to be filed 3

PART 3—PRE-TRIAL PROCEDURE 4

5. Directions hearing 4 6. Summary of prosecution opening and notice of pre-trial

admissions 6 7. Defence response to summary of prosecution opening and notice

of pre-trial admissions 7 8. Provisions applicable to prosecution and defence 8 9. Expert evidence 9 10. Disclosure of questions of law 9 11. Taking of evidence from a witness prior to trial 10

PART 4—TRIAL 12

12. Judge constituting court 12 13. Defence response to prosecutor's opening 12 14. Judge's address to the jury 12 15. Evidence at trial 13 16. Comment on departure or failure 14 17. Names of defence witnesses 15 18. Cross-examination 15 19. Jury documents 16 20. Manner of giving evidence 17 21. Retrial 18

Section Page

ii

PART 5—GENERAL 19

22. Power to extend time 19 23. Parties must inform sheriff of certain events 19 24. Costs 19 25. Costs liability of legal practitioner 21 26. Costs order 22 27. Counsel required to retain brief for trial 22 28. Reports to the Legal Practice Board and Legal Ombudsman 23 29. Related trials 23 30. Service of documents by prosecutor 23 31. Exercise of prosecutor's functions and powers 24 32. Relationship with other legislation 24 33. Transitional provisions 24

PART 6—AMENDMENT AND REPEAL OF CERTAIN ACTS 26

34. Amendment of Crimes Act 1958—application for extension of time for the commencement of a trial 26

35. Amendment of Evidence Act 1958 27 55AC. Evidence of a witness at a subsequent trial 27

36. Amendments to the Magistrates' Court Act 1989 27 37. Amendments to the Sentencing Act 1991—sentencing

guidelines 29 38. Repeal of Crimes (Criminal Trials) Act 1993 30

═══════════════

NOTES 31

1

Crimes (Criminal Trials) Act 1999† [Assented to 8 June 1999]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to increase the capacity for judicial management of criminal trials and make other changes for the purpose of improving the efficiency of criminal trials.

2. Commencement

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

Victoria

No. 35 of 1999

Act No. 35/1999

Crimes (Criminal Trials) Act 1999

2

(2) Subject to sub-section (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 sub-section (2) does not come into operation before 1 September 1999, it comes into operation on that day.

3. Definitions

In this Act—

"court" means the Supreme Court or the County Court (as the case requires) at which presentment is made, or at which it is proposed to make presentment, for an offence;

"day on which the trial is due to commence" means the day on which the accused is due to be put in the charge of the jury;

"directions hearing" means a directions hearing under section 5;

"post-committal conference" means a post-committal conference conducted under Schedule 5 to the Magistrates' Court Act 1989;

"presentment" includes indictment;

"prosecutor" means the Director of Public Prosecutions for Victoria or the Director of Public Prosecutions for the Commonwealth;

"sexual offence" has the same meaning as in section 3(1) of the Evidence Act 1958.

_______________

s. 3

Act No. 35/1999


3

PART 2—PRESENTMENT TO BE FILED

4. Presentment to be filed

(1) The court at which presentment is proposed to be made for an offence may fix a date (at least 14 days ahead) for a directions hearing to be conducted in relation to the trial of that offence.

(2) The prosecutor must—

(a) in the case of a trial for a sexual offence, not less than 28 days before the day on which the trial is due to commence; or

(b) in any other case, not less than 14 days before the day on which the first directions hearing is due to be conducted—

cause presentment to be made at, and filed in, the court.

(3) Nothing in this section prevents the making and filing of a fresh presentment.

(4) On the making and filing of a fresh presentment, proceedings on any presentment previously made and filed in relation to the same offence or a related offence are permanently stayed.

(5) For the purposes of sub-section (4), two offences are related to one another if they are founded on the same facts or form or are part of a series of offences of the same or a similar character.

_______________

s. 4

Act No. 35/1999


4

PART 3—PRE-TRIAL PROCEDURE

5. Directions hearing

(1) The court may, between the filing of the presentment and the day on which the trial is due to commence, from time to time on the application of a party or of its own motion conduct a directions hearing.

(2) At the beginning of the first directions hearing each count in the presentment must be read to the accused and the accused asked to plead to that count.

(3) Despite sub-section (2), if the accused pleads not guilty to one or more counts in the presentment and indicates an intention to plead not guilty to one or more remaining counts, it is not necessary for those remaining counts to be read to the accused and he or she must be taken to have pleaded not guilty to those counts.

(4) At the first directions hearing the court may do any one or more of the following—

(a) require the parties to provide an estimate of the time expected to be needed for the trial;

(b) require the parties to advise as to the estimated number and the availability of witnesses for the trial, not including the accused as a witness, and whether any witnesses are from interstate or overseas;

(c) require the accused to advise whether he or she is legally represented and has funding for continued legal representation up to and including the trial;

(d) require the parties to advise whether there are any particular requirements of, or

s. 5

Act No. 35/1999


5

facilities needed for, witnesses and interpreters.

(5) At any subsequent directions hearing the court may do, or specify a time for it to do, any one or more of the following—

(a) require the parties to advise whether they are aware of any questions that require determination before the day on which the trial is due to commence;

(b) determine any question of law or procedure that arises or that is anticipated to arise in the trial;

(c) determine any question of fact that may be determined lawfully by a judge alone without a jury;

(d) determine any question of mixed law and fact that may be determined lawfully by a judge alone without a jury;

(e) require the prosecutor to serve on the defence and file in court a copy of any further evidence that he or she wishes to introduce at the trial;

(f) order a party to make, file in court or serve (as the case requires) any written or oral material required by the court for the purposes of this Act;

(g) allow a party to amend a document that has been prepared by or on behalf of that party under this Act;

(h) if of the opinion that it is in the interests of justice to do so, dispense with or vary any requirement imposed on a party by or under this Act;

s. 5

Act No. 35/1999


6

(i) anything that it may do at the first directions hearing under sub-section (4).

(6) Nothing in this section removes the requirement for the accused to be arraigned in accordance with the Crimes Act 1958 before the commencement of the trial.

(7) The accused is required to be present at the first and, except with the leave of the court, at any subsequent directions hearing.

6. Summary of prosecution opening and notice of pre-trial admissions

(1) Unless there has been a post-committal conference and a magistrate has prepared a written record of it in accordance with Schedule 5 to the Magistrates' Court Act 1989 or the court otherwise directs, the prosecutor must not less than 28 days before the day on which the trial is due to commence, serve on the defence and file in court—

(a) a summary of the prosecution opening; and

(b) a notice of pre-trial admissions.

(2) The summary of the prosecution opening must outline—

(a) the manner in which the prosecution will put the case against the accused; and

(b) the acts, facts, matters and circumstances being relied upon to support a finding of guilt.

(3) The notice of pre-trial admissions must contain a copy of the statements of the witnesses whose evidence, in the opinion of the prosecutor, ought to be admitted as evidence without further proof including evidence that is directed solely to formal matters including—

s. 6

Act No. 35/1999


7

(a) continuity; or

(b) a person's age; or

(c) proving the accuracy of a plan, or that photographs were taken in a certain manner or at a certain time.

(4) Nothing in this section entitles the accused to receive a copy of any document already served on the accused under the Magistrates' Court Act 1989.

7. Defence response to summary of prosecution opening and notice of pre-trial admissions

(1) The accused must, after having been served with a copy of the documents referred to in section 6, not less than 14 days before the day on which the trial is due to commence serve on the prosecution and file in court a copy of—

(a) the defence response to the summary of the prosecution opening; and

(b) the defence response to the notice of pre-trial admissions.

(2) The defence response to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

(3) The defence response to the notice of pre-trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken.

s. 7

Act No. 35/1999


8

(4) Despite sub-sections (2) and (3), the accused is not required to state—

(a) the identity of any defence witness other than an expert witness; or

(b) whether the accused will give evidence.

8. Provisions applicable to prosecution and defence

(1) Unless in the opinion of the court there are exceptional circumstances, the prosecutor and the defence when opening their respective cases must restrict themselves to the matters—

(a) set out in their respective documents served and filed under this Part; or

(b) disclosed or identified by them, and recorded by a magistrate, at a post-committal conference—

as the case requires.

(2) For the purposes of sub-section (1), a change of legal practitioner does not constitute exceptional circumstances.

(3) Despite sub-section (1), at the trial the prosecutor is not restricted to a verbatim presentation of the summary of the prosecution opening and the defence is not restricted to a verbatim presentation of the defence response to the summary of the prosecution opening as served and filed under this Part.

(4) A party must inform the court and the other party in advance of any intention to depart substantially from a matter—

(a) set out in a document served and filed by that party under this Part; or

s. 8

Act No. 35/1999


9

(b) disclosed or identified by that party, and recorded by a magistrate, at a post-committal conference—

as the case requires and, if the court so orders, inform the court and the other party of the details of the proposed departure.

9. Expert evidence

(1) The defence must, if intending to call a person as an expert witness at the trial, at least 14 days before the day on which the trial is due to commence serve on the prosecution and file in court a copy of a statement of the expert witness in accordance with sub-section (2).

(2) The statement must—

(a) contain the name and address of the witness;

(b) describe the qualifications of the witness to give evidence as an expert;

(c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed.

10. Disclosure of questions of law

(1) A party who intends to raise a question of law in a criminal proceeding must, at least 14 days before the day on which the trial is due to commence (or, if the party is not aware within that period of the question of law, as soon as possible after the party becomes aware of it), notify the court that a question of law has arisen that requires determination.

(2) For the purposes of sub-section (1), a question of law does not include a general proposition of law relevant to all cases.

s. 9

Act No. 35/1999


10

(3) If the court is notified of a question of law under sub-section (1) at least 14 days before the day on which the trial is due to commence and all the parties to the proceeding agree, the court may determine the question of law entirely on the basis of written submissions, without any physical appearance by the parties or their representatives.

(4) If the parties have agreed to have the question of law determined on the basis of written submissions, the party who raised the question of law must, at least 10 days before the day on which the trial is due to commence, file in court and serve on all other parties a copy of that party's submission.

(5) Within 5 days after a party is served with a copy of a submission under sub-section (4), that party must file in court and serve on all other parties a copy of a written submission in reply.

(6) Within 3 days after a party is served with a written submission in reply under sub-section (5), that party must file in court and serve on all other parties a copy of a written submission in response to the reply.

(7) If the parties have not agreed to have a question of law that could be determined in accordance with sub-section (3) determined in accordance with that sub-section, the party who raised the question of law must, at least 10 days before the day on which the trial is due to commence, notify the court that agreement has not been reached and request the court to conduct a directions hearing.

11. Taking of evidence from a witness prior to trial

(1) Prior to the day on which a trial is due to commence, a party to a criminal proceeding may apply to the court for an order that the evidence of

s. 11

Act No. 35/1999


11

a person be taken at a time and place fixed by the court.

(2) An application may only be made under sub-section (1) if—

(a) the person was not available to be examined as a witness at the committal proceeding; or

(b) a statement from the person was not included in a hand-up brief served on the accused under Schedule 5 to the Magistrates' Court Act 1989—

and the person was not examined under section 56A of the Magistrates' Court Act 1989.

(3) An application under sub-section (1) must state the grounds on which an order is sought.

(4) The court must not make an order under sub-section (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.

_______________

s. 11

Act No. 35/1999


12

PART 4—TRIAL

12. Judge constituting court

(1) The judge constituting the court when the trial of an accused takes place before a jury need not be the judge who constituted the court at a directions hearing held in connection with the trial.

(2) Any ruling made by a judge at a directions hearing who is not the trial judge is binding on the trial judge unless, in the opinion of the trial judge, it would not be in the interests of justice for the ruling to be binding.

13. Defence response to prosecutor's opening

(1) In all trials before a jury the defence must, immediately after the prosecution opening, present to the jury the defence response to the prosecution opening prepared in accordance with Part 3 or in conformity with the matters disclosed or identified by the defence, and recorded by a magistrate, at a post-committal conference, as the case requires.

(2) The trial judge may limit the length of the prosecution opening or the defence response.

14. Judge's address to the jury

Immediately after the defence response to the prosecution opening or at any other time the trial judge thinks appropriate, the trial judge may address the jury on—

(a) the issues in the trial; or

(b) the relevance to the conduct of the trial of any admissions made, directions given or matters determined prior to the commencement of the trial.

s. 12

Act No. 35/1999


13

15. Evidence at trial

(1) With the leave of the court, the prosecutor or the defence may introduce evidence at the trial before the jury which was not recorded by a magistrate at a post-committal conference or disclosed in accordance with Part 3 and which represents—

(a) a substantial departure by a party from an agreement reached at a post-committal conference; or

(b) in the case of the prosecutor, a substantial departure from—

(i) the summary of the prosecution opening; or

(ii) the notice of pre-trial admissions—

as served on the accused and filed in court; or

(c) in the case of the accused, a substantial departure from—

(i) the defence response to the summary of the prosecution opening; or

(ii) the defence response to the notice of pre-trial admissions—

as served on the prosecution and filed in court.

(2) The trial judge may allow the prosecutor after he or she has closed his or her case to call evidence in reply to evidence given by the defence which could not reasonably have been foreseen by the prosecution having regard to—

(a) the defence response to the summary of the prosecution opening; and

s. 15

Act No. 35/1999


14

(b) the defence response to the notice of pre-trial admissions—

as served on the prosecution and filed in court.

(3) Nothing in this section limits any other power of the trial judge to allow the prosecutor to call evidence after he or she has closed his or her case.

16. Comment on departure or failure

(1) Subject to sub-sections (2) and (3), the trial judge or, with the leave of the court, a party may make any comment that the trial judge thinks appropriate on—

(a) a departure referred to in section 15(1); or

(b) a failure by a party to comply with a requirement of this Act or an order made under this Act.

(2) The trial judge may only grant leave to a party to comment on a departure or failure if satisfied that—

(a) the proposed comment is relevant; and

(b) the proposed comment is not likely to produce a miscarriage of justice.

(3) A comment made by the trial judge or a party must not—

(a) in the case of a departure, suggest that an inference of guilt may be drawn from the departure except in those circumstances in which such an inference might be drawn before the commencement of this section from a lie told by an accused; and

(b) in the case of a failure—

(i) suggest that an inference of guilt may be drawn from the failure except in those circumstances in which such an

s. 16

Act No. 35/1999


15

inference might be drawn before the commencement of this section from the failure of an accused to adduce evidence from a particular witness; or

(ii) suggest that the failure may be taken into account in considering the probative value of the prosecution evidence except in those circumstances in which a failure of an accused to give evidence or adduce evidence from a particular witness may be taken into account for that purpose before the commencement of this section.

17. Names of defence witnesses

At the close of the prosecution case, the trial judge must call on the defence to indicate the names of the witnesses, other than the accused, whom the defence intends to call to give evidence at the trial.

18. Cross-examination

(1) Without limiting any other power that the trial judge has to forbid or disallow questions, the trial judge may disallow any question asked of a witness in the course of cross-examination in a trial which appears to the trial judge—

(a) to have no substantial relevance to facts in issue; or

(b) to be repetitive of an earlier question; or

(c) to be oppressive in the form, or manner, in which it is asked.

(2) If in the opinion of the trial judge, the issue to which a question asked of a witness in cross-examination is directed is not apparent, the trial judge may require counsel to specify the issue to

s. 17

Act No. 35/1999


16

which the question is directed and its relevance to that issue.

(3) Before the trial judge forbids or disallows a question under sub-section (1), the parties may make submissions to the judge as to whether the question ought be allowed or disallowed.

19. Jury documents

(1) For the purpose of helping the jury to understand the issues, the trial judge may order on the application of a party or of his or her own motion that copies of any of the following shall be given to the jury in any form that the trial judge considers appropriate—

(a) the presentment;

(b) the summary of the prosecution opening and the notice of pre-trial admissions of the prosecution;

(c) the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions;

(d) any document admitted as evidence;

(e) any statement of facts;

(f) the opening and closing speeches of the prosecution and the defence;

(g) any address of the trial judge to the jury under section 14;

(h) any schedules, chronologies, charts, diagrams, summaries or other explanatory material;

(i) transcripts of evidence;

(j) transcripts of any audio or audio visual recordings;

s. 19

Act No. 35/1999


17

(k) the trial judge's summing up;

(l) any other document that the trial judge thinks fit.

(2) The trial judge may specify in an order under sub-section (1) when any material is to be given to the jury.

20. Manner of giving evidence

(1) The trial judge may permit a person to give evidence—

(a) with the consent of the parties, by the witness reading from the witness' statement prepared in advance of giving evidence;

(b) where the person is called in his or her capacity as an expert witness, by the presentation of audio or audio visual material;

(c) by means of playing an audio or audio visual recording;

(d) in any other manner that the trial judge considers may be of assistance.

(2) Nothing in sub-section (1) precludes—

(a) in the case of paragraph (b) of that sub-section, the questioning of an expert witness by cross-examination or otherwise before, during or after a presentation; or

(b) in the case of paragraph (c) of that sub-section, if unanticipated issues arise during the trial, the trial judge making an order that the witness physically appear before the court.

(3) Nothing in this section affects the operation of sections 42A and 42B and Part IIA of the Evidence Act 1958.

s. 20

Act No. 35/1999


18

21. Retrial

If a retrial is held, the court may treat any order made, direction given or any other thing done at a directions hearing held in connection with the earlier trial as if it had been made, given or done at a directions hearing held in connection with the retrial unless to do so would, in the opinion of the court, be inconsistent with any order made or direction or ruling given on an appeal or would otherwise not be in the interests of justice.

_______________

s. 21

Act No. 35/1999


19

PART 5—GENERAL

22. Power to extend time

(1) On the application of a party or of its own motion, the court may extend or abridge any time fixed by or under this Act or by any order extending or abridging time made under this section if it is of the opinion that it is in the interests of justice to do so.

(2) The court may extend time under sub-section (1) before or after the time expires and whether or not any application is made before the time expires.

23. Parties must inform sheriff of certain events

It is a duty of each party to a criminal proceeding listed for trial before a jury to inform the sheriff within the meaning of the Juries Act 1967 as soon as practicable of any event of which the party becomes aware that affects the question of whether or not or when a jury will be required for the trial and the dates on which persons will be required to attend for jury service.

24. Costs

(1) If there has been—

(a) any unreasonable act or omission by, or on behalf of, a party before the accused has been put in the charge of the jury that the court is satisfied resulted in prolonging the trial; or

(b) a departure referred to in section 15(1); or

(c) a failure by a party to comply with a requirement of this Act or an order made under this Act—

the court may make any order that it thinks fit with respect to the costs of and incidental to the

s. 22

Act No. 35/1999


20

trial and, for this purpose, it has full power to determine by whom, to whom and to what extent those costs are to be paid.

(2) An order under sub-section (1) may be made on the application of a party or by the court of its own motion.

(3) An order under sub-section (1) may be made against—

(a) a party, whether the Crown or the accused; or

(b) a party's legal practitioner or, in the case of a legal practitioner who is employed by another legal practitioner or a firm of legal practitioners, his or her employer.

(4) The court must not make an order awarding costs against a party in the exercise of its discretion under sub-section (1) without giving that party a reasonable opportunity to be heard.

(5) If the accused and the accused's legal practitioner have complied with the requirements of this Act and any orders made thereunder and the hearing of a criminal proceeding is—

(a) discontinued or adjourned; and

(b) the reason for the discontinuance or the adjournment was not attributable in any way to the act, neglect or fault of an accused or that accused's legal practitioner—

any indemnity certificate granted by the court under section 16 or 17 of the Appeal Costs Act 1998 may include an indemnity certificate for the accused's own costs incurred in consequence of a requirement imposed on the accused under this Act.

s. 24

Act No. 35/1999


21

25. Costs liability of legal practitioner

(1) If a legal practitioner for a party in a criminal proceeding to which this Act applies, 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 order that—

(a) 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

(b) 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

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

(2) Without limiting sub-section (1), a legal practitioner is in default for the purposes of that sub-section if any 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) be prepared with any proper evidence or account; or

(e) otherwise proceed.

s. 25

Act No. 35/1999


22

(3) The court must not make an order under sub-section (1) without giving the legal practitioner a reasonable opportunity to be heard.

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

26. Costs order

If the court determines that costs should be paid, the order must provide—

(a) if the court is satisfied that a party or a party's legal practitioner has reasonably incurred additional costs as a consequence of any act or omission of another party, for payment of costs to the first-mentioned party or that party's legal practitioner;

(b) in any other case, for payment of costs into court for payment into the Consolidated Fund.

27. Counsel required to retain brief for trial

(1) A legal practitioner who has been briefed or otherwise agreed to appear for an accused at a trial must, at least 7 days before the day on which the trial is due to commence, advise the court of his or her intention to appear for the accused.

(2) A legal practitioner may only relinquish a brief to appear or withdraw from an agreement to appear for an accused within 7 days before the day on which the trial is due to commence with leave of the court.

(3) In an application for leave under sub-section (2), the court may make an order as to costs to be paid personally by the legal practitioner if of the opinion that in the circumstances of the case—

s. 26

Act No. 35/1999


23

(a) the agreement to appear at trial for the accused or the acceptance of a brief to appear for the accused at trial; or

(b) the withdrawal from an agreement to appear for the accused at trial or the relinquishment of a brief to appear for the accused at trial—

is unreasonable.

28. Reports to the Legal Practice Board and Legal Ombudsman

If in the opinion of the court there has been, on the part of a legal practitioner for a party, a failure to comply with a requirement of this Act or an order made under this Act, including a failure to comply with an order or requirement under section 5, the court may make a complaint about the legal practitioner and refer the complaint to the Legal Practice Board or the Legal Ombudsman for such action as may be required under the Legal Practice Act 1996.

29. Related trials

A court is not prevented from being constituted at a trial by the same judge who constituted the court at an earlier trial where the offences charged at the later trial are founded on the same facts or form or are part of a series of offences of the same or a similar character merely because the judge made a ruling at the earlier trial or at a directions hearing held in connection with the earlier trial on any question about the admissibility of evidence or other question of law that, in his or her opinion, is likely to be contentious in the later trial.

30. Service of documents by prosecutor

If by or under this Act the prosecutor is required or permitted to serve a document on the defence at any time, the document must be taken to have

s. 28

Act No. 35/1999


24

been duly served on the defence if it is sent by registered post addressed to the legal practitioner for the accused at that legal practitioner's business address.

31. Exercise of prosecutor's functions and powers

A person briefed to appear in a proceeding on behalf of the Director of Public Prosecutions may exercise any function or power of the prosecutor under this Act in relation to that proceeding.

32. Relationship with other legislation

Nothing in this Act limits the operation of—

(a) section 391A or 391B of the Crimes Act 1958; or

(b) Order 4 of Chapter VI of the Rules of the Supreme Court; or

(c) Order 11 of Chapter II of the Rules of the County Court.

33. Transitional provisions

(1) This Act applies only to and in relation to—

(a) trials of an offence, or of an offence that is not materially different from an offence, for which the accused was committed on a committal proceeding on or after the commencement of section 4; or

(b) trials for which presentment is made on or after that commencement other than trials of an offence, or of an offence that is not materially different from an offence, for which the accused was committed on a committal proceeding before that commencement.

(2) The Crimes (Criminal Trials) Act 1993 continues to apply to and in relation to a trial to

s. 31

Act No. 35/1999


25

and in relation to which this Act does not apply by virtue of sub-section (1) as if that Act had not been repealed.

(3) Despite sub-sections (1) and (2), on a joint application by all the parties to a trial to and in relation to which this Act does not apply by virtue of sub-section (1) the court may order that—

(a) this Act is to apply to and in relation to the trial; and

(b) the Crimes (Criminal Trials) Act 1993 is to cease to apply to and in relation to the trial—

to the extent set out in the order.

(4) If an order is made under sub-section (3), then this Act applies, and the Crimes (Criminal Trials) Act 1993 ceases to apply, to and in relation to the trial to the extent set out in the order.

_______________

s. 33

Act No. 35/1999


26

PART 6—AMENDMENT AND REPEAL OF CERTAIN ACTS

34. Amendment of Crimes Act 1958—application for extension of time for the commencement of a trial

(1) In section 353 of the Crimes Act 1958, after sub-section (6) insert—

"(6A) An application for an extension of time under sub-section (5) may be made to the court orally.

(6B) Unless the court otherwise orders, no material in support of the application need be filed.

(6C) On the making of an order under sub-section (5), the Judge's Associate must annotate the presentment to indicate that the time for the commencement of the trial has been extended by the period set out in the order.".

(2) In section 359A of the Crimes Act 1958, after sub-section (3) insert—

"(4) An application for an extension of time under sub-section (2) may be made to the court orally.

(5) Unless the court otherwise orders, no material in support of the application need be filed.

(6) On the making of an order under sub-section (2), the Judge's Associate must annotate the presentment to indicate that the time for the commencement of the trial has been extended by the period set out in the order.".

s. 34

No. 6231. Reprint No. 14 as at 1 July 1998. Further amended by Nos 65/1998 and 80/1998.

Act No. 35/1999


27

35. Amendment of Evidence Act 1958

After section 55AB of the Evidence Act 1958 insert—

"55AC. Evidence of a witness at a subsequent trial

(1) For the purposes of this section, two offences are related to one another if they are founded on the same facts or form or are part of a series of offences of the same or a similar character.

(2) If on the trial of a person for an offence it appears to the court that a person has given evidence in a previous trial and that evidence was recorded and transcribed under Part VI and that person—

(a) is refusing to be sworn or give evidence; or

(b) is dead; or

(c) is out of Victoria; or

(d) is so ill as not to be able to travel; or

(e) cannot, after diligent search be found; or

(f) has become mentally ill; or

(g) is keeping or is being kept out of the way to avoid giving evidence; or

(h) is incapable of giving evidence—

the evidence of that person, as recorded and transcribed, is admissible in any subsequent trial of the same person for the same offence or a related offence.".

36. Amendments to the Magistrates' Court Act 1989

No. 6246. Reprint No. 12 as at 1 September 1998. Further amended by No. 80/1998.

s. 36

Act No. 35/1999


28

(1) In Schedule 2 to the Magistrates' Court Act 1989—

(a) in clause 1A, sub-clause (8) is repealed;

(b) after clause 1A insert— "1B. Expert witness statement

Whether or not the informant serves a brief of evidence on the defendant in accordance with section 37, the defendant must serve on the informant at least 7 days before the mention date (or, if the statement is not then in existence, as soon as possible after it comes into existence) a copy of the statement of any expert witness whom the defendant intends to call to give evidence at the hearing.".

(2) In Schedule 5 to the Magistrates' Court Act 1989—

(a) in clause 24(1), after paragraph (b) insert— "; and

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

(b) after clause 24(3) insert— "(4) Immediately after the conclusion of the

committal proceeding, the magistrate who conducted the proceeding must inform the parties that they may request the magistrate to convene and conduct a post-committal conference as soon as possible.

(5) If the magistrate convenes a post-committal conference the parties must attend.

(6) The purposes of a post-committal conference are—

(a) for the prosecution to disclose the main evidence being relied on to support a finding of guilt for the offence on which the defendant was committed for trial;

No. 51/1989. Reprint No. 5 as at 1 July 1998. Further amended by Nos 60/1998 and 102/1998.

Act No. 35/1999


29

(b) to identify any matters that a party believes will require resolution prior to trial;

(c) to identify any witnesses that the Director of Public Prosecutions, by agreement with the defendant, need not call to give evidence at trial;

(d) to disclose whether any and what evidence of a witness referred to in paragraph (c) is admitted by the defendant as evidence without further proof;

(e) to identify what evidence is disputed by the defendant and the reasons for such dispute.

(7) If the magistrate and the parties to a post-committal conference agree that the purposes set out in sub-clause (6) have been substantially met, the magistrate must prepare a written record of the matters disclosed or identified, for signing by the parties (or their legal practitioners) and the magistrate.

(8) A written record under sub-clause (7) must contain a statement to the effect that the parties have agreed that the matters disclosed or identified may be disclosed or identified at trial.

(9) Whether or not a post-committal conference takes place, the magistrate who conducted the committal proceeding may make a recommendation to the court in which the presentment is filed that a directions hearing under section 5 of the Crimes (Criminal Trials) Act 1999 may be desirable.".

37. Amendments to the Sentencing Act 1991—sentencing guidelines

s. 37

Act No. 35/1999


30

(1) In section 5(2C) of the Sentencing Act 1991—

(a) for "on the trial" substitute "on or in connection with the trial";

(b) after "indication of" insert "remorse or".

(2) For section 5(2D) of the Sentencing Act 1991 substitute—

"(2D) In having regard to the conduct of the offender under sub-section (2C), the court may consider the extent to which the offender complied with, or failed to comply with, a requirement imposed on the offender by or under the Crimes (Criminal Trials) Act 1999.".

38. Repeal of Crimes (Criminal Trials) Act 1993

The Crimes (Criminal Trials) Act 1993 is repealed.

═══════════════

No. 49/1991. Reprint No. 4 as at 1 July 1998. Further amended by No. 57/1998.

No. 60/1993. Reprint No. 1 as at 23 July 1998.

Act No. 35/1999


31

NOTES † Minister's second reading speech—

Legislative Assembly: 6 May 1999

Legislative Council: 26 May 1999

The long title for the Bill for this Act was "to improve the efficiency of criminal trials, to amend the Crimes Act 1958, the Evidence Act 1958, the Magistrates' Court Act 1989 and the Sentencing Act 1991, to repeal the Crimes (Criminal Trials) Act 1993 and for other purposes."

Notes

Documents

Crimes (Criminal Trials) Act 1999 - legislation.vic.gov.au · Crimes (Criminal Trials) Act 1999 ... Summary of prosecution opening and notice of pre-trial ... Counsel required to