County Court (Chapter Iii Judicial Registrar Amendment) Rules 2023 (Vic)
County Court (Chapter III Judicial Registrar Amendment) Rules 2023
S.R. No. 16/2023
table of provisions
Rule Page
Part 1—Preliminary
1Object
2Authorising provisions
3Commencement
4Principal Rules
Part 2—Grants of leave under section 342 of the Criminal Procedure Act 2009
5Pre-trial hearings
Part 3—Appeals under the Criminal Procedure Act 2009 and the Children, Youth and Families Act 2005
6Definitions
7New Subdivision heading inserted
8New Subdivision headings and new Rules 2A.7A, 2A.7B, 2A.7C and 2A.7D inserted
9New Rules 2A.14A, 2A.14B, 2A.14C and 2A.14D inserted
Part 4—Minor and technical amendments
10References to judicial registrars constituting the Court
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Endnotes
statutory rules 2023
S.R. No. 16/2023
County Court Act 1958
County Court (Chapter III Judicial Registrar Amendment) Rules 2023
A majority of the Judges of the County Court makes the following Rules:
PART 1—PRELIMINARY
1Object
The object of these Rules is to amend Chapter III of the Rules of the County Court—
(a)to enable judicial registrars to grant leave permitting the taking of certain evidence at a pre-trial hearing before the Court constituted by a judicial registrar;
(b)to make changes in relation to certain appeals under the Criminal Procedure Act 2009 and the Children, Youth and Families Act 2005—
(i)enabling judicial registrars to strike out appeals by offenders on a repeated failure of the appellant to appear, or if the appellant states that they wish to abandon the appeal;
(ii)enabling charges to be withdrawn on appeal and before the Court constituted by a judicial registrar; and
(iii)enabling judicial registrars to grant leave to appeal if the application for leave is not opposed; and
(c)to make minor and technical amendments.
2Authorising provisions
These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.
3Commencement
These Rules come into operation on 1 April 2023.
4Principal Rules
In these Rules, the County Court Criminal Procedure Rules 2019[1] are called the Principal Rules.
PART 2—GRANTS OF LEAVE UNDER SECTION 342 OF THE CRIMINAL PROCEDURE ACT 2009
5Pre-trial hearings
For Rule 2A.2(6) of the Principal Rules substitute—
"(6)Nothing in paragraph (4)(f) prevents the judicial registrar from exercising the power of the Court to grant leave under section 342 of the Act in respect of—
(a)the taking of evidence (including
cross-examination and re-examination) under section 198 of the Act; or(b)cross-examination and re-examination under section 198A or 198B of the Act—
at a pre-trial hearing before the Court constituted by a judicial registrar.".
PART 3—APPEALS UNDER THE CRIMINAL PROCEDURE ACT 2009 AND THE CHILDREN, YOUTH AND FAMILIES ACT 2005
6Definitions
In Rule 2A.1 of the Principal Rules—
(a)insert the following definition—
"aggregate sentence means a sentence imposed on an offender in respect of more than one offence;
Examples
1An aggregate sentence of imprisonment imposed in accordance with section 9(1) of the Sentencing Act 1991.
2An aggregate sentence of detention imposed in accordance with section 32A of the Sentencing Act 1991 or section 362B of the Children, Youth and Families Act 2005.
3A community correction order that is made in respect of more than one offence in accordance with section 40 of the Sentencing Act 1991.
4An aggregate fine imposed in accordance with section 51 of the Sentencing Act 1991 or section 373(b) of the Children, Youth and Families Act 2005.";
(b)for the definition of preliminary hearing substitute—
"preliminary hearing, in relation to an appeal, means—
(a)if the appeal is to proceed as a rehearing, a hearing in respect of that appeal that occurs before the rehearing commences; and
(b)otherwise, a hearing in respect of that appeal that occurs before the appeal itself has begun to be heard;
Note
Section 260 of the Criminal Procedure Act 2009 and section 429A of the Children, Youth and Families Act 2005 provide for appeals against sentence to be brought if the Director of Public Prosecutions considers that an offender has failed to fulfil an undertaking to assist law enforcement authorities. These appeals must not be conducted as rehearings—see section 262(1) of the Criminal Procedure Act 2009 and section 429C(1) of the Children, Youth and Families Act 2005.".
7New Subdivision heading inserted
After the heading to Division 2 of Part 2 of Order 2A of the Principal Rules insert—
"Subdivision 1—Preliminary hearings at which a judicial registrar may constitute the Court".
8New Subdivision headings and new Rules 2A.7A, 2A.7B, 2A.7C and 2A.7D inserted
After Rule 2A.7 of the Principal Rules insert—
"Subdivision 2—Striking out appeals and withdrawing charges
2A.7AAppeal by offender—striking out appeal on repeated failure to appear
(1)If, at a preliminary hearing before the Court constituted by a judicial registrar in an appeal under section 254 of the Act, the appellant fails to appear at the time listed for the hearing—
(a)the power of the Court to strike out the appeal under section 267 of that Act is delegated to the judicial registrar; and
(b)the judicial registrar may constitute the Court for the purpose of exercising that power.
(2)The judicial registrar may exercise the power referred to in paragraph (1)(a) only if the appellant has previously failed to appear at another preliminary hearing in the appeal.
2A.7BAppeal by offender—striking out appeal if appellant expresses a wish to abandon it during preliminary hearing
(1)If, at a preliminary hearing before the Court constituted by a judicial registrar in an appeal under section 254 of the Act, the appellant expresses a wish to abandon the appeal—
(a)the power of the Court to strike out the appeal is delegated to the judicial registrar so that the appeal may be abandoned with the leave of the Court; and
(b)the judicial registrar may constitute the Court for the purpose of granting that leave and exercising that power.
(2)A reference in paragraph (1) to abandoning an appeal or striking out an appeal includes, where the appeal is against conviction and sentence, doing so only in relation to conviction so that an appeal against sentence alone may be pursued.
2A.7CAppeal by offender or DPP—withdrawal of charges on appeal
(1)This Rule applies if the prosecution is to withdraw a charge that is to be heard and determined on an appeal under section 254 or 257 of the Act.
(2)A judicial registrar may constitute the Court for the purposes of the withdrawal of the charge.
(3)Without limiting paragraph (2), a judicial registrar may constitute the Court under that paragraph if the judicial registrar is already constituting the Court for a preliminary hearing in the appeal.
(4)When a judicial registrar constitutes the Court under paragraph (2), all the powers that the Court would have to enable the withdrawal of the charge are delegated to the judicial registrar.
(5)If it is proposed that a charge be withdrawn, and the sentence imposed in respect of that charge is an aggregate sentence, a judicial registrar must not exercise a power for the purposes of the withdrawal of that charge except as provided for by paragraph (6).
(6)If it is proposed to withdraw all the charges in respect of which an aggregate sentence was imposed, a judicial registrar may exercise a power for the purposes of the withdrawal of all of those charges.
(7)If it is proposed that a charge be withdrawn, and the sentence imposed in respect of that charge is not wholly concurrent with another sentence, a judicial registrar must not exercise a power for the purposes of the withdrawal of that charge except as provided for by paragraph (8).
(8)If it is proposed to withdraw all the charges for which the sentences imposed were not wholly concurrent with another sentence, a judicial registrar may exercise a power for the purposes of the withdrawal of all of those charges.
(9)Nothing in this Rule authorises the Court, when constituted by a judicial registrar under paragraph (2), to hear and determine the appeal except to the extent that is necessary for a charge to be withdrawn.
Subdivision 3—Leave to appeal and costs
2A.7DApplication for leave to appeal
(1)A judicial registrar may constitute the Court for the purposes of an application for leave under section 263(1) of the Act.
(2)When a judicial registrar constitutes the Court under paragraph (1), the power of the Court under section 263(2) of the Act to grant leave to appeal is delegated to the judicial registrar.
(3)A judicial registrar may exercise the power of the Court under section 263(2) of the Act to grant leave to appeal only if the application for leave is not opposed.
(4)Nothing in this Rule authorises the Court, when constituted by a judicial registrar under paragraph (1), to hear and determine the appeal.".
9New Rules 2A.14A, 2A.14B, 2A.14C and 2A.14D inserted
After Rule 2A.14 of the Principal Rules insert—
2A.14AChildren, Youth and Families Act 2005—appeal by offender—striking out appeal on repeated failure to appear"
(1)If, at a preliminary hearing before the Court constituted by a judicial registrar in an appeal under section 424 of the Children, Youth and Families Act 2005, the appellant fails to appear at the time listed for the hearing—
(a)the power of the Court to strike out the appeal under section 430D of that Act is delegated to the judicial registrar; and
(b)the judicial registrar may constitute the Court for the purpose of exercising that power.
(2)The judicial registrar may exercise the power referred to in paragraph (1)(a) only if the appellant has previously failed to appear at another preliminary hearing in the appeal.
2A.14BChildren, Youth and Families Act 2005—appeal by offender—striking out appeal if appellant expresses a wish to abandon it during preliminary hearing
(1)If, at a preliminary hearing before the Court constituted by a judicial registrar in an appeal under section 424 of the Children, Youth and Families Act 2005, the appellant expresses a wish to abandon the appeal—
(a)the power of the Court to strike out the appeal is delegated to the judicial registrar so that the appeal may be abandoned with the leave of the Court; and
(b)the judicial registrar may constitute the Court for the purpose of granting that leave and exercising that power.
(2)A reference in paragraph (1) to abandoning an appeal or striking out an appeal includes, where the appeal is against conviction and sentence, doing so only in relation to conviction so that an appeal against sentence alone may be pursued.
2A.14CChildren, Youth and Families Act 2005—appeal by offender or DPP—withdrawal of charges on appeal
(1)This Rule applies if the prosecution is to withdraw a charge that is to be heard and determined on an appeal under section 424 or 427 of the Children, Youth and Families Act 2005.
(2)A judicial registrar may constitute the Court for the purposes of the withdrawal of the charge.
(3)Without limiting paragraph (2), a judicial registrar may constitute the Court under that paragraph if the judicial registrar is already constituting the Court for a preliminary hearing in the appeal.
(4)When a judicial registrar constitutes the Court under paragraph (2), all the powers that the Court would have to enable the withdrawal of the charge are delegated to the judicial registrar.
(5)If it is proposed that a charge be withdrawn, and the sentence imposed in respect of that charge is an aggregate sentence, a judicial registrar must not exercise a power for the purposes of the withdrawal of that charge except as provided for by paragraph (6).
(6)If it is proposed to withdraw all the charges in respect of which an aggregate sentence was imposed, a judicial registrar may exercise a power for the purposes of the withdrawal of all of those charges.
(7)If it is proposed that a charge be withdrawn, and the sentence imposed in respect of that charge is not wholly concurrent with another sentence, a judicial registrar must not exercise a power for the purposes of the withdrawal of that charge except as provided for by paragraph (8).
(8)If it is proposed to withdraw all the charges for which the sentences imposed were not wholly concurrent with another sentence, a judicial registrar may exercise a power for the purposes of the withdrawal of all of those charges.
(9)Nothing in this Rule authorises the Court, when constituted by a judicial registrar under paragraph (2), to hear and determine the appeal except to the extent that is necessary for a charge to be withdrawn.
2A.14DChildren, Youth and Families Act 2005—application for leave to appeal
(1)A judicial registrar may constitute the Court for the purposes of an application for leave under section 430(1) of the Children, Youth and Families Act 2005.
(2)When a judicial registrar constitutes the Court under paragraph (1), the power of the Court under section 430(2) of the Children, Youth and Families Act 2005 to grant leave to appeal is delegated to the judicial registrar.
(3)A judicial registrar may exercise the power of the Court under section 430(2) of the Children, Youth and Families Act 2005 to grant leave to appeal only if the application for leave is not opposed.
(4)Nothing in this Rule authorises the Court, when constituted by a judicial registrar under paragraph (1), to hear and determine the appeal.".
PART 4—MINOR AND TECHNICAL AMENDMENTS
10References to judicial registrars constituting the Court
(1)In Rule 2A.5(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(2)In Rule 2A.5(3) of the Principal Rules, for "the Court constituted by a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(3)In Rule 2A.6(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(4)In Rule 2A.6(3) of the Principal Rules, for "the Court constituted by a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(5)In Rule 2A.7(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(6)In Rule 2A.7(3) of the Principal Rules, for "the Court constituted by a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(7)In Rule 2A.11(4) of the Principal Rules, for "in accordance with this Rule," substitute "under paragraph (1),".
(8)In Rule 2A.12(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(9)In Rule 2A.12(3) of the Principal Rules, for "a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(10)In Rule 2A.13(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(11)In Rule 2A.13(3) of the Principal Rules, for "a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(12)In Rule 2A.14(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(13)In Rule 2A.14(3) of the Principal Rules, for "a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(14)In Rule 2A.18(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(15)In Rule 2A.18(3) of the Principal Rules, for "a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(16)In Rule 2A.21(2) of the Principal Rules—
(a)for "for the purposes of the preliminary hearing," substitute "under paragraph (1),";
(b)for "such a hearing" substitute "a preliminary hearing in the appeal".
(17)In Rule 2A.21(3) of the Principal Rules, for "a judicial registrar" substitute "the Court, when constituted by a judicial registrar under paragraph (1),".
(18)In Rule 2A.26(1) of the Principal Rules—
(a)after "this Rule," insert "when a judicial registrar constitutes the Court under Rule 2A.25 for the purposes of hearing and determining a matter referred under Rule 2A.24(1),";
(b)for "in hearing and determining a matter referred under Rule 2A.24(1)" substitute "in hearing and determining that matter".
Dated: 10 March 2023
| PETER KIDD, Chief Judge | J G MORRISH |
| M. E. SEXTON, Deputy Chief Judge | K L BOURKE |
| FRANCES E. HOGAN | P M E WISCHUSEN |
| S S DAVIS | FRANK GUCCIARDO |
| F. P. HAMPEL | MARK GAMBLE |
| GERARD MULLALY | JOHN CAIN |
| MICHAEL H. TINNEY | S LEIGHFIELD |
| G CANNON | DAVID J. N. PURCELL |
| JOHN CARMODY | F H TODD |
| P COSGRAVE | MY ANH TRAN |
| G F MEREDITH | J VANDERSTEEN |
| SARA HINCHEY | JULIE CLAYTON |
| A J CHAMBERS | M DEMPSEY |
| SAMANTHA L MARKS | S BURCHELL |
| GREGORY LYON | P TIWANA |
| TED WOODWARD | KATE HAWKINS |
| C R GWYNN | K BLAIR |
| D A TRAPNELL | NOLA KARAPANAGIOTIDIS |
| A M RYAN | DANIEL P HOLDING |
| T E WRAIGHT | ANGELA ELLIS |
| MICHAEL CAHILL | ANDREW FRAATZ |
| S. JOHNS | SIMON MOGLIA |
| P.J. GINNANE | GARY CLARK |
| ELIZABETH BRIMER | CAITLIN ENGLISH |
| G A GEORGIOU | PETER ROZEN |
| A S PILLAY | A M MAGEE |
| R E CARLIN | JOHN KELLY |
| ANNE HASSAN | B A MYERS |
| KEVIN DOYLE |
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ENDNOTES
[1] Rule 4: S.R. No. 126/2019 as amended by S.R. Nos 16/2020, 98/2021 and 90/2022.
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