Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 (Vic)

No judgment structure available for this case.

Criminal Justice Legislation (Miscellaneous

Amendments) Act 2002

Act No. 35/2002

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1

1. Purposes 1
2. Commencement 2

PART 2—AMENDMENT OF THE CRIMES ACT 1958 4

3. New section 464NA inserted 4
464NA. Fingerscanning for identification purposes 4
4. Destruction of records 5
5. Records of juvenile 6
6. Statute law revision 6

PART 3—AMENDMENT OF THE CORRECTIONS ACT 1986 7

7. Photographing and fingerprinting 7
8. Disclosure of personal information 8
9. Accident compensation 10
10. New section 115 inserted 10

115.

Transitional provisions—Criminal Justice Legislation (Miscellaneous Amendments) Act 2002

10

PART 4—AMENDMENT OF THE POLICE REGULATION

ACT 1958 12

11. Disclosure of information and documents 12
PART 5—AMENDMENT OF THE MAGISTRATES' COURT

ACT 1989 14

12. Filing of charge 14
13. Issue of summons by police 14
14. New section 37A inserted 15

37A. Service of outline of evidence on defendant 15

15. Power to adjourn 17

i

Section Page

16. New section 121A inserted 17

121A. Validation of certain acts 17

17. New section 128A inserted 18

128A. Adjournment to undertake diversion program 18

18. Supreme Court—limitation of jurisdiction 20
19. Regulations 20
20. Pre-hearing disclosure 20
21. Defendant's non-appearance at summary hearing 22

6. Non-appearance of defendant—outline of evidence 22

22. Committal of corporate defendant 24
23. Offence not to appear 24

24B. Offence to fail to appear at trial 24

24. Transitional 24

PART 6—MISCELLANEOUS 26

25. Bail justice 26
26. Appeal Costs Act 1998 27
27. New section 43A inserted 27

43A. Transitional—2002 amendments 27
28. Drugs, Poisons and Controlled Substances (Amendment)

Act 2001 28

__________________

SCHEDULE 29

═══════════════

ENDNOTES 35

ii

Victoria

No. 35 of 2002

Criminal Justice Legislation

(Miscellaneous Amendments) Act 2002†

[Assented to 18 June 2002]
The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes
The purposes of this Act are—

(a)

to provide for the determination of a summary offence in the defendant's absence on the basis of a statement by the informant outlining the alleged offence;

(b)

to provide for the appearance of corporations on their trial for indictable offences;

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 2	Act No. 35/2002

(c) to facilitate the use of electronic lodgment of court documents;
(d) to provide for electronic pre-trial disclosure by the prosecution;
(e) to enable a police officer to issue a summons to answer to a charge;
(f) to provide the Magistrates' Court with the option of adjourning a criminal proceeding to enable a defendant to participate in a diversion program;
(g) to deem persons when participating in diversion programs to be workers employed by the Crown for the purposes of the Accident Compensation Act 1985;
(h) to enable fingerprints of accused persons and prisoners to be taken by scanning devices for identification purposes;
(i)
information relating to prisoners and persons
in community corrections centres or
community corrections programes between
to provide for the exchange of personal force;
(j) to amend the definition of bail justice;

(k)

to amend the Appeal Costs Act 1998 in relation to indemnity certificates in criminal proceedings;

(l)

to make miscellaneous amendments of a transitional and statute law revision nature.
2. Commencement
(1) This Act (except item 5.1 in the Schedule) comes into operation on the day after the day on which it receives the Royal Assent.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 2
(2) Item 5.1 in the Schedule is deemed to have come
into operation on the day on which section 5 of the Sentencing (Amendment) Act 2002 comes into operation.

_______________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 3	Act No. 35/2002

PART 2—AMENDMENT OF THE CRIMES ACT 1958

3. New section 464NA inserted

See:

Act No.	After section 464N of the Crimes Act 1958
6231.	insert—
Reprint No. 16
as at	'464NA. Fingerscanning for identification purposes
1 January

2002 (1) In this section, "fingerscan" means

and
amending	fingerprints taken by means of a device to
Act Nos
45/2001 and	obtain a record of the fingerprints.
11/2002.	Example: Fingerprints may be taken by a scanning
LawToday:
device to obtain a digital record of the
dpc.vic.	fingerprints.
gov.au

(2) If a person of or above the age of 15 years—

(a)

has been charged with an indictable offence or a summary offence referred to in Schedule 7; and

(b)

is present in a police station because of the charging or has been remanded in custody in relation to the charge—
a member of the police force may take a
fingerscan of the person for the purpose only
of identifying the person.
(3) Before fingerscanning a person under this section, a member of the police force must inform the person, in language likely to be understood by the person, that the
fingerscan—

(a)

is to be taken only for the purpose of identifying the person; and
(b) is inadmissible as evidence.
(4) A member of the police force may use
reasonable force to take the fingerscan of a
person referred to in sub-section (2) who

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 4
refuses to allow it to be taken voluntarily
if—

(a) the use of reasonable force is authorised by a member in charge of a police station at the relevant time or a member of or above the rank of sergeant; and
(b) before fingerscanning the person, the member of the police force informs the person, in language likely to be understood by the person, that reasonable force may be used to obtain it.
(5) A person of the same sex as the person to be

fingerscanned must, if practicable, take the
fingerscan.

(6) A fingerscan is inadmissible as evidence in any proceeding.
(7) A fingerscan which is not required to be

destroyed under section 464O may be
recorded on a computerised database and
may be accessed, disclosed, communicated
or made use of by a person for the
performance of official duties if the
recording, accessing, disclosing,
communicating or making use of fingerscans
on that database by that person, or a person
belonging to a class of persons, for that
purpose is authorised in writing by the Chief
Commissioner of Police.'.

4. Destruction of records
In section 464O(1) of the Crimes Act 1958, after
"section" insert—
' "destroy", in relation to a fingerscan, means
permanently de-identify information—

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 5	Act No. 35/2002

(a) which identifies the person from whom the fingerscan was taken; or
(b) from which the person's identity may be ascertained;
"fingerprints" includes fingerscan taken under section 464NA;'.

5. Records of juvenile
In section 464P of the Crimes Act 1958, before sub-section (1) insert—
'(1A) In this section, "fingerprints" includes
fingerscan taken under section 464NA.'.

6. Statute law revision
Sections 6, 7(1)(b) and 10 of the Crimes (Fingerprinting) Act 1988 are repealed.

_______________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 7

PART 3—AMENDMENT OF THE CORRECTIONS ACT 1986

7. Photographing and fingerprinting

See:

(1) In section 3(1) of the Corrections Act 1986, Act No.

before the definition of "function" insert— 117/1986.
Reprint No. 4

' "fingerprints" includes finger, palm, toe and sole prints, whether taken by impression or

as at
26 August
1999

by means of a device to obtain a record of and
amending

the fingerprints;

Act Nos 38/1988,

Example: Fingerprints may be taken by a scanning device 11/1993 (as

to obtain a digital record of the fingerprints.'. amended by Nos 45/1996
and 11/2002),
86/2000,
45/2001,
72/2001 and
2/2002.
LawToday:

dpc.vic.
gov.au

(2) In section 11(7A) of the Corrections Act 1986, for "must" substitute "may".
(3) In section 28(1) of the Corrections Act 1986, for "must" substitute "may".
(4) In section 28(2) of the Corrections Act 1986,

after "photographs of the prisoner" insert "or take
the prisoner's fingerprints or both".

(5) In section 99(1) of the Corrections Act 1986, for

"must take photographs of the offender"
substitute "may take photographs of the offender
and may take the offender's fingerprints".

(6) In section 99(2) of the Corrections Act 1986,

after "photographs of the offender" insert "or take
the offender's fingerprints or both".

(7) In section 99(3) of the Corrections Act 1986,
after "photographs" insert "and fingerprints".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 8	Act No. 35/2002

8. Disclosure of personal information
(1) In section 30(3) of the Corrections Act 1986, after paragraph (d) insert—
"(daa) recording, accessing, disclosing, communicating or making use of information—
(i) relating to the personal affairs of a prisoner; or
(ii) concerning the investigation of a breach or possible breach of the law by a prisoner—

on a computerised database in the
performance of the person's official duties
if—
(iii) the person holds a position other than as a volunteer; and
(iv) the Minister has given written authority under sub-section (4) that applies to the person; or".

(2) In section 30 of the Corrections Act 1986, after sub-section (3) insert—
"(4) The Minister may, by instrument in writing,

authorise persons, or classes of persons,
specified in the authority, who hold a
position, other than as volunteers, to record,
access, disclose, communicate or make use
of, for the performance of their official
duties, confidential information, or classes of
confidential information, of a kind referred
to in sub-section (3)(daa) on a computerised
database specified in the authority that is
able to be accessed by—

(a)

persons holding a position, other than as volunteers; or

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 8

(b)

officers within the meaning of section 85; or
(c) members of the police force.
(5) Nothing in this section prevents the
recording or accessing and using of health with that Act.".
information within the meaning of the
(3) At the end of section 91 of the Corrections Act 1986 insert—
"(2) Sub-section (1) does not prevent an officer
from recording, accessing, disclosing, communicating or making use of any information referred to in that sub-section on
a computerised database in the performance
of official duties if the Minister has given
written authority under sub-section (3) that
applies to the officer.
(3) The Minister may, by instrument in writing,

authorise officers, or classes of officers,
specified in the authority, to record, access,
disclose, communicate or make use of, for
the performance of their official duties,
information, or classes of information, of a
kind referred to in sub-section (1) on a
computerised database specified in the
authority that is able to be accessed by—

(a) officers; or

(b)

persons holding a position within the meaning of section 30, other than as volunteers; or
(c) members of the police force.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 9	Act No. 35/2002

(4) Nothing in this section prevents the
recording or accessing and using of health with that Act.".
information within the meaning of the
9. Accident compensation
In section 110 of the Corrections Act 1986—

(a)

in paragraph (b), for "location—" substitute "location; or";
(b) after paragraph (b) insert—

"(c) a person who is required or directed by
section 128A of the Magistrates'

or under a diversion program under in a program of activities—".

10. New section 115 inserted
After section 114 of the Corrections Act 1986 insert—
"115. Transitional provisions—Criminal Justice Legislation (Miscellaneous Amendments) Act 2002
(1) The amendments to this Act made by
section 7 of the Criminal Justice commencement of that section.
Legislation (Miscellaneous Amendments)
(2) The amendments to this Act made by
section 8 of the Criminal Justice obtained before or after the commencement of that section.".
Legislation (Miscellaneous Amendments)

__________________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002
Act No. 35/2002
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 11

Act No. 35/2002

PART 4—AMENDMENT OF THE POLICE REGULATION

ACT 1958

11. Disclosure of information and documents

See:	In section 127A of the Police Regulation Act
Act No.
6338.	1958, after sub-section (1) insert—
Reprint No. 8
as at	"(1A) Sub-section (1) does not prevent a member
15 October

1998 of the police force from recording, accessing,

and	disclosing, communicating or making use of
amending
Act Nos	any fact or document referred to in that sub-
30/1999,	section, whether obtained before or after the
61/1999,
95/2000,	commencement of section 11 of the
9/2001,	Criminal Justice Legislation
36/2001 and
84/2001.	(Miscellaneous Amendments) Act 2002, on
LawToday:	a computerised database in the performance
	dpc.vic.	of official duties if the Chief Commissioner
gov.au	of Police has given written authority under sub-section (1B) that applies to the member.

(1B) The Chief Commissioner of Police may, by

instrument in writing, authorise members, or
classes of members, of the police force
specified in the authority, to record, access,
disclose, communicate or make use of, for
the performance of their official duties,
information, or classes of information,
referred to in sub-section (1) on a
computerised database specified in the
authority that is able to be accessed by—

(a) members of the police force; or

(b) persons holding a position within the meaning of section 30 of the Corrections Act 1986, other than as volunteers; or
(c)
officers within the meaning of 1986.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 11
(1C) Nothing in sub-section (1A) prevents the
recording or accessing and using of health with that Act.".
information within the meaning of the

_______________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 12

Act No. 35/2002

PART 5—AMENDMENT OF THE MAGISTRATES' COURT

ACT 1989

12. Filing of charge

See:	(1) In section 26 of the Magistrates' Court Act
Act No.
51/1989.	1989, at the foot of sub-section (1) insert—
Reprint No. 8
as at	"Note: The Electronic Transactions (Victoria) Act 2000
24 April 2002	applies to enable a charge to be filed electronically.".
and
amending Act
Nos 2/2001
and 2/2002. Law Today: dpc.vic.
gov.au

(2) In section 26 of the Magistrates' Court Act

1989, after sub-section (2) insert—

"(2A) If a charge is filed in accordance with the method prescribed by the regulations for electronic filing, the requirements of sections
8(1) and 9(1) of the Electronic to have been met.".

13. Issue of summons by police
(1) In section 30 of the Magistrates' Court Act
1989, for sub-section (1) substitute—
"(1) Without limiting the power of a registrar in
any way—
(a) a member of the police force; or

(b) in the case of a charge for a prescribed summary offence, a prescribed person—
may, at the time of signing a charge-sheet, issue a summons to answer to the charge.".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 14
(2) In section 30(2) of the Magistrates' Court Act
1989—

(a)

after "If " insert "a member of the police force or";
(b) omit "original".

(3) In section 30(4) of the Magistrates' Court Act
1989—

(a)

after "If" insert "a member of the police force or";
(b) omit "original";

(c)
after "charge" (where last occurring) insert offence".

14. New section 37A inserted
After section 37 of the Magistrates' Court Act
1989 insert—
'37A. Service of outline of evidence on defendant
(1) The informant may serve on the defendant,

in the case of a charge for a summary
offence, an outline of evidence and a notice
in the prescribed form explaining this section
and clause 6 of Schedule 2.

(2) An outline of evidence is a statement by the informant—

(a)

describing the nature and circumstances of the alleged offence, including—

(i) the background and consequences
of the alleged offence; and
(ii)
any, made by the defendant
the comments or statements, if and

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 14

Act No. 35/2002

(b) including—
(i) the names of all persons who may be called to give evidence by or on behalf of the informant at the hearing of the charge and indicating whether those persons have made statements; and
(ii) a list of any things that may be tendered as exhibits.

(3) An outline of evidence must be—
(a) in the form of an affidavit; or

(b)
signed by the informant and must the presence of—
(i) a member of the police force of Victoria, of any other State or of an internal Territory; or
(ii) a member of the Australian Federal Police—

that the statement is true and correct
and is made in the belief that a person
making a false statement in the
circumstances is liable to the penalties
of perjury.

(4) Despite sub-section (3), a copy of an outline of evidence that—
(a) is served on the defendant; or

(b)

is used for the purposes of clause 6 in Schedule 2—
need not bear the manual signature of the
informant.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 15
(5) An informant who acknowledges an outline

of evidence which the informant knows at
the time to be false is liable to the penalties
of perjury.

(6) The outline of evidence and notice referred

to in sub-section (1) must be served in
accordance with section 34 or 36(1) (as the
case requires) as though they were a
summons to answer to a charge.

(7) Service of documents referred to in sub-
section (1) may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35.
(8) Section 90 of the Road Safety Act 1986

applies as if a reference to "summons" were
a reference to "outline of evidence under
section 37A of the Magistrates' Court Act
1989".

(9) An informant must retain an outline of
evidence bearing the manual signature of the informant for a period of 12 months after the determination of the charge.'.
15. Power to adjourn
In section 41(3) of the Magistrates' Court Act 1989, after "Schedule 2" insert "or may adjourn the proceeding on any terms that it thinks fit".

16. New section 121A inserted
After section 121 of the Magistrates' Court Act

1989 insert—
"121A. Validation of certain acts
If, before the commencement of section 25
of the Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002, a

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 17

Act No. 35/2002

person holding a prescribed office under
section 121 performed any act or made any
decision under this or any other Act in
purported exercise of a power to act as a bail
justice appointed under section 120, the act
or decision is not invalid only by reason of
the lack of appointment of the person as a
bail justice under section 120 of the
Magistrates' Court Act 1989.".
17. New section 128A inserted
After section 128 of the Magistrates' Court Act
1989 insert—

"128A. Adjournment to undertake diversion

program
(1) This section does not apply to an offence

punishable by a minimum or fixed sentence
or penalty.

(2) If, at any time before taking a formal plea from a defendant in a criminal proceeding for a summary offence or an indictable

offence triable summarily—

(a)
the defendant acknowledges to the and

(b)

it appears appropriate to the Court, which may inform itself in any way it thinks fit, that the defendant should participate in a diversion program; and

(c)

both the prosecution and the defendant consent to the Court adjourning the proceeding for this purpose—
the Court may adjourn the proceeding for a
period not exceeding 12 months to enable the
defendant to participate in and complete the
diversion program.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 17
(3) A defendant's acknowledgment to the Court

of responsibility for an offence is
inadmissible as evidence in a proceeding for
that offence and does not constitute a plea.

(4) If a defendant completes a diversion program to the satisfaction of the Court—
(a) no plea to the charge is to be taken; and

(b) the Court must discharge the defendant without any finding of guilt; and
(c) the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of—
(i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and
(ii) section 9 of the Control of Weapons Act 1990; and
(iii) section 151 of the Firearms Act 1996; and
(iv) Part 4 of the Sentencing Act 1991; and

(d) the fact of participation in the diversion program and the discharge of the defendant is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances.
(5) If a defendant does not complete a diversion program to the satisfaction of the Court and the defendant is subsequently found guilty of
the charge, the Court must take into account the extent to which the defendant complied

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 18

Act No. 35/2002

with the diversion program when sentencing
the defendant.
(6) Nothing in this section affects the
requirement to observe the rules of natural
justice.".
18. Supreme Court—limitation of jurisdiction
At the end of section 139A of the Magistrates'
Court Act 1989 insert—
"(2) It is the intention of section 121A to alter or

vary section 85 of the Constitution Act
1975.".

19. Regulations
In section 140(1) of the Magistrates' Court Act
1989, after paragraph (c) insert—
"(ca) prescribing a method for the electronic filing
of charges; and".

20. Pre-hearing disclosure
(1) In clause 1A(2) of Schedule 2 to the Magistrates' Court Act 1989, for "14" substitute "10".
(2) In clause 1A of Schedule 2 to the Magistrates' Court Act 1989, after sub-clause (2) insert—
"(2A) If—

(a)

the informant is a member of the police force or an officer of a prescribed agency; and

(b)

the defendant's legal practitioner is authorised by the Secretary to access electronically the information and matters referred to in sub- clause (2); and

(c)

it is practicable to transmit electronically the information and matters referred to in sub- clause (2)—
the informant must, subject to this clause, place on the
prescribed database as soon as practicable and as the
information or matters become available to the
informant—

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 20

(d) all information and matters referred to in sub- clause (2); and
(e) a list of the exhibits proposed to be tendered.".
(3) In clause 1A(4) of Schedule 2 to the Magistrates' Court Act 1989, after "sub-clause (2)" (where first occurring) insert "or to place on the database information or matters required to be placed under sub-clause (2A)".
(4) In clause 1A(5) of Schedule 2 to the Magistrates' Court Act 1989—
(a) for "7th" substitute "5th"; and
(b) for "14" substitute "10".

(5) In clause 1A of Schedule 2 to the Magistrates' Court Act 1989, after sub-clause (5) insert—
"(5A) If the informant refuses to place on the database
information or matters required to be placed under
sub-clause (2A) or to provide access to exhibits, the
informant must, without delay, serve on the
defendant's legal practitioner a written statement of
the ground or grounds for refusing to comply.".

(6) In clause 1A(6) of Schedule 2 to the Magistrates' Court Act 1989, after "(2)" insert "or to place on the database information or matters required to be placed under sub-clause (2A)".
(7) In clause 1A(7) of Schedule 2 to the Magistrates'
Court Act 1989, after "(2)" insert "or a requirement to place information or matters required to be placed under sub-clause (2A)".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 21

Act No. 35/2002

21. Defendant's non-appearance at summary hearing In Schedule 2 to the Magistrates' Court Act 1989, after clause 5 insert—
"6. Non-appearance of defendant—outline of evidence
(1) If—

(a)
under section 41(2) or (3) the Court proceeds to defendant's absence; and

(b)
on the defendant in accordance with
the informant has served an outline of evidence mention date; and

(c)

the Court considers that the matters set out in the outline of evidence disclose the offence charged—
the following are admissible in evidence, despite the
rule against hearsay—

(d)

the outline of evidence referred to in section 37A(1);

(e)

any exhibit referred to in the outline of evidence.
(2) Without limiting any other power conferred on the
Court, if the Court considers that the matters set out in an outline of evidence do not disclose the offence charged, the Court may require the informant to provide additional evidence.

(3) The additional evidence referred to in sub-section (2)
is inadmissible unless—

(a) it is in the form of written statements that comply with section 37A(3); and
(b)
a copy of each statement has been served on the Court considers the additional evidence.

(4) The Court must reject a statement, or any part of a
statement, tendered in a proceeding if the statement or
part is inadmissible because of this clause.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 21

(5) The Court may rule as inadmissible the whole or any
part of an outline of evidence, a statement or an
exhibit.
(6) If the Court finds a defendant guilty in the defendant's
absence on the basis of an outline of evidence—

(a) the Court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991; and
(b) the Court must not make a community-based order under Division 3 of Part 3 of the Sentencing Act 1991; and
(c) the Court must not make an order for a fine exceeding 20 penalty units under Division 4 of Part 3 of the Sentencing Act 1991 and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and
(d) the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or compensation
must not exceed $2000.

(7)

If, at any time during the hearing, the Court considers that the charge, if proved, is likely to result in an order prohibited by sub-clause (6), the Court—

(a)

must adjourn the proceeding to enable the defendant to appear or to be brought before the Court to answer to the charge; and
(b) may issue a warrant to arrest the defendant.

(8)

Except as provided by section 90 of the Road Safety Act 1986, the Court must not be informed of nor have regard to any prior convictions or findings of guilt of the defendant.

(9)

If the Court finds a charge against a person proven and makes a sentencing order in their absence, the Court must give by post written notice to the person,
at the address on the register, of—
(a) the order of the Court; and

(b)

their right to apply for a re-hearing of the charge.

(10) If a person is served with a notice under sub-clause
(9) and applies under section 93 for a re-hearing of the

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 22

Act No. 35/2002

charge within 28 days after the date of service of the notice, the Court must set aside the sentencing order and re-hear the charge.

(11) This clause does not limit the power of the Court to
proceed to hear and determine the charge in the
defendant's absence under section 41(2) or (3) on the
basis of evidence on oath given by or on behalf of the
informant if the informant had not served an outline
of evidence on the defendant in accordance with
section 37A.".
22. Committal of corporate defendant
In clause 24(1) of Schedule 5 to the Magistrates'
Court Act 1989—

(a)

in paragraph (b), after "(b)" insert "if the defendant is a natural person,";
(b) after paragraph (b) insert—
"(ba) if the defendant is a body corporate,
order the defendant to appear, by a
representative or a legal practitioner, at
its arraignment; and".

23. Offence not to appear
In Part 6 of Schedule 5 to the Magistrates' Court
Act 1989, after clause 24A insert—
"24B. Offence to fail to appear at trial
A body corporate must comply with an order made under clause 24(1)(ba).

Penalty: 240 penalty units.".

24. Transitional
In Schedule 8 to the Magistrates' Court Act
1989—

(a)

in clause 25 (where secondly occurring) for "25." substitute "26.";
(b) after clause 26 insert—

"27. (1) The amendments made to this Act by
sections 12, 13, 14, 15, 19 and 20 of the

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 24
Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002
apply to a criminal proceeding
commenced on or after the
commencement of that Act.

(2) Section 128A as inserted by section 17 of

the Criminal Justice Legislation
(Miscellaneous Amendments) Act 2002
applies to a criminal proceeding for an
offence, whether commenced before or
after the commencement of section 17 of
that Act.".

__________________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 25

Act No. 35/2002

PART 6—MISCELLANEOUS

25. Bail justice

(1) In section 3 of the Bail Act 1977, for the

definition of "bail justice" substitute—
' "bail justice" means—

(a)

bail justice appointed under section 120 of the Magistrates' Court Act 1989; or

(b)

bail justice by virtue of holding a prescribed office under section 121 of the Magistrates' Court Act 1989;'.

(2) In section 3(1) of the Children and Young
Persons Act 1989, for the definition of "bail
justice" substitute—
' "bail justice" means—

(a) bail justice appointed under section 120 of the Magistrates' Court Act 1989; or
(b) bail justice by virtue of holding a prescribed office under section 121 of the Magistrates' Court Act 1989;'.

(3) In section 38 of the Interpretation of Legislation

Act 1984, for the definition of "bail justice"
substitute—
' "bail justice" means—

(a)

bail justice appointed under section 120 of the Magistrates' Court Act 1989; or

(b)

bail justice by virtue of holding a prescribed office under section 121 of the Magistrates' Court Act 1989;'.

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 s. 26
26. Appeal Costs Act 1998
(1) In section 17(1) of the Appeal Costs Act 1998—

(a)

in paragraph (b), for "practitioner; and" substitute "practitioner—";
(b) paragraph (c) is repealed.

(2) In section 17 of the Appeal Costs Act 1998, for sub-section (2) substitute—
"(2) The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that the reason for the adjournment
was as set out in sub-section (1)(b).".

(3) In section 17(3) of the Appeal Costs Act 1998,

after "own costs of the adjournment" insert "that
have been incurred,".

(4) In section 17(4) of the Appeal Costs Act 1998,

for "the accused" substitute "the party accused or
convicted of an offence (whether that party is a
defendant, appellant or respondent in the
proceeding) to which the proceeding relates".

27. New section 43A inserted
After section 43 of the Appeal Costs Act 1998 insert—

"43A. Transitional—2002 amendments

The amendments of section 17 of this Act made by section 26 of the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 apply to an application under section 17 made on or after the commencement of section 26 of that Act, irrespective of when the criminal proceeding commenced.".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

s. 28

Act No. 35/2002

28. Drugs, Poisons and Controlled Substances (Amendment) Act 2001
On the coming into operation of an item in the amended as set out in that item.

__________________
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 Sch.

SCHEDULE

1. Bail Act 1977

1.1 In section 4(2)(aa) of the Bail Act 1977, after sub-paragraph
(i) insert—

"(ia) an offence of trafficking in relation to a commercial quantity of a drug of dependence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and an offence of cultivating a narcotic plant under section 72 of that Act in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that narcotic plant or an offence of conspiring to commit either of those offences under section 79(1) of that Act; or".

1.2 In section 4(4) of the Bail Act 1977, after paragraph (ca)
insert—
"(cab) subject to sub-section (2)(aa), with an offence of
trafficking in a drug of dependence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001 or
an offence of cultivating a narcotic plant under
section 72 of that Act or an offence of conspiring to
commit either of those offences under section 79(1) of
that Act;".

2. Confiscation Act 1997

2.1 In Schedule 2 to the Confiscation Act 1997, after clause 1
insert—

"1A.

An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—

(a)

section 71(1) (trafficking in a drug of dependence) in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Sch.	Act No. 35/2002
commercial quantity applicable to that drug of dependence;

(b) section 72(1) (cultivation of narcotic plants) in circumstances where the 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;
(c) section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a)
or (b);

(d)
etc.) in circumstances where the offence that is
aided, abetted, counselled, procured, solicited
section 80(1) or 80(3)(b) (aiding and abetting (a) or (b) or an offence committed in the circumstances referred to in paragraph (a) or (b) under a law in force in a place outside Victoria that is a corresponding law in relation to section 71(1) or 72(1), as the case requires.".

2.2 In Schedule 3 to the Confiscation Act 1997, after clause 1
insert—

"2.

An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—

(a)

section 71(1) (trafficking in a drug of dependence) in circumstances where the 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) (cultivation of narcotic plants) in circumstances where the 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;

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 Sch.

(c) section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a)
or (b);

(d)
etc.) in circumstances where the offence that is
aided, abetted, counselled, procured, solicited
section 80(1) or 80(3)(b) (aiding and abetting (a) or (b) or an offence committed in the circumstances referred to in paragraph (a) or (b) under a law in force in a place outside Victoria that is a corresponding law in relation to section 71(1) or 72(1), as the case requires.".

3. Crimes Act 1958

3.1 In section 464(2) of the Crimes Act 1958, in the definition
of "relevant suspect", after "Act 1981" (where twice
occurring) insert "or under section 71, 72(1)(ab) or 72(1)(b)
of the Drugs, Poisons and Controlled Substances Act
1981 as in force immediately before the commencement of
the Drugs, Poisons and Controlled Substances
(Amendment) Act 2001".
3.2 In section 464U(3) of the Crimes Act 1958, after "Act
1981" (where twice occurring) insert "or under section 71,
72(1)(ab) or 72(1)(b) of the Drugs, Poisons and Controlled
Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and Controlled
Substances (Amendment) Act 2001".
3.3 In section 464ZF of the Crimes Act 1958, after sub-section
(2) insert—

"(2AA) If the finding of guilt referred to in sub-section (2)—

(a) occurs between 1 January 2002 and the commencement of item 3.4 in the Schedule to the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002; and
(b) is in respect of an offence referred to in item 29, 30 or 31 of Schedule 8—
an application under sub-section (2) may be made not later than 12 months after the expiration of any appeal period or the final determination of an appeal
(whichever is the later).".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Sch.	Act No. 35/2002

3.4 In Schedule 8 to the Crimes Act 1958, after clause 28
insert—

"29. An offence against section 71 of the Drugs, Poisons
and Controlled Substances Act 1981 as in force
immediately before the commencement of the Drugs,
Poisons and Controlled Substances (Amendment)
Act 2001 (trafficking in a drug of dependence).
30.
Poisons and Controlled Substances Act 1981 as in
force immediately before the commencement of the
Drugs, Poisons and Controlled Substances
(Amendment) Act 2001 (cultivation of a narcotic
plant in circumstances where the offence is committed

An offence against section 72(1)(ab) of the Drugs, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant).
31. An offence against section 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (cultivation of a narcotic plant for a purpose related to trafficking in that narcotic plant).".

4. Magistrates' Court Act 1989

4.1 In item 49 of Schedule 4 to the Magistrates' Court Act
1989, after "72A" insert "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)
in relation to a quantity of a drug of dependence,
section 72(1) where the alleged offence is committed commercial quantity applicable to that narcotic plant".

5. Sentencing Act 1991

5.1 In section 18ZN(1) of the Sentencing Act 1991 at the end of
paragraph (a) insert "or".

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 Sch.

5.2 In clause 4 of Schedule 1 to the Sentencing Act 1991, after
paragraph (a) insert—

"(ab)

an offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—
(i)  section 71 (trafficking in a drug of dependence) in circumstances where the 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;
(ii)  section 72 (cultivation of narcotic plants) in circumstances where the 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;
(iii)  section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence against section 71 of that
Act in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence or an offence under a law in force in a place outside Victoria that is a corresponding law in relation to that section in relation to that quantity;
(iv)  section 80(1) or 80(3)(b) (aiding and abetting etc.) in circumstances where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence against section 71 of that Act in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence or an offence under a law in force in a place outside Victoria that is a corresponding law in relation to that section in relation to that quantity;
(v)  section 80(4) (preparatory act) in circumstances where the offence to which the act relates is an offence under a law in force in a place outside Victoria that is a corresponding law in relation to section 71 of that Act in relation to a quantity

Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Sch.	Act No. 35/2002
of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence;

(ac) an offence of attempting to commit an offence

referred to in paragraph (ab)(i);".

6. Surveillance Devices Act 1999

6.1 In section 3(1) of the Surveillance Devices Act 1999, in the
definition of "serious drug offence"—
(a) in paragraph (g), for "(e);" substitute "(e)—";

(b) after paragraph (g) insert—
"or an offence against any of the following provisions
of the Drugs, Poisons and Controlled Substances
Act 1981 as in force immediately before the
commencement of the Drugs, Poisons and
Controlled Substances (Amendment) Act 2001—

(h) section 71(1) (trafficking in a drug of dependence);
(i) section 72(1) (cultivation of narcotic plants) other than an offence that is not committed for any purpose related to trafficking in a narcotic plant;

(j)

section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (h) or (i);

(k)

section 80(1) (aiding and abetting etc.) in circumstances where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence referred to in paragraph (h) or (i);".

7. Transport Act 1983

7.1 In section 86(1) of the Transport Act 1983, after paragraph
(a) of the definition of "level 2 offence" insert—

"(ab)

an offence under section 71 of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs,
Poisons and Controlled Substances (Amendment)
Act 2001; or".

═══════════════
Criminal Justice Legislation (Miscellaneous Amendments) Act
2002

Act No. 35/2002 Endnotes

ENDNOTES

†
Minister's second reading speech—
Legislative Assembly: 9 May 2002
Legislative Council: 6 June 2002
The long title for the Bill for this Act was "to amend the Crimes Act
1958, the Corrections Act 1986, the Police Regulation Act 1958, the
Magistrates' Court Act 1989, the Confiscation Act 1997, the
Sentencing Act 1991, the Bail Act 1977, the Children and Young
Persons Act 1989, the Interpretation of Legislation Act 1984, the
Surveillance Devices Act 1999, the Transport Act 1983 and the Appeal
Costs Act 1998 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 9 May 2002
Legislative Council: 6 June 2002
Absolute majorities:
Legislative Assembly: 5 June 2002
Legislative Council: 11 June 2002

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Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 (Vic)

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3.	New section 464NA inserted	4
464NA. Fingerscanning for identification purposes	4
4.	Destruction of records	5
5.	Records of juvenile	6
6.	Statute law revision	6

7.	Photographing and fingerprinting	7
8.	Disclosure of personal information	8
9.	Accident compensation	10
10.	New section 115 inserted	10

12.	Filing of charge	14
13.	Issue of summons by police	14
14.	New section 37A inserted	15

18.	Supreme Court—limitation of jurisdiction	20
19.	Regulations	20
20.	Pre-hearing disclosure	20
21.	Defendant's non-appearance at summary hearing	22

22.	Committal of corporate defendant	24
23.	Offence not to appear	24

25.	Bail justice	26
26.	Appeal Costs Act 1998	27
27.	New section 43A inserted	27

(a)	to provide for the determination of a summary offence in the defendant's absence on the basis of a statement by the informant outlining the alleged offence;
(b)	to provide for the appearance of corporations on their trial for indictable offences;

(c)	to facilitate the use of electronic lodgment of court documents;
(d)	to provide for electronic pre-trial disclosure by the prosecution;
(e)	to enable a police officer to issue a summons to answer to a charge;
(f)	to provide the Magistrates' Court with the option of adjourning a criminal proceeding to enable a defendant to participate in a diversion program;
(g)	to deem persons when participating in diversion programs to be workers employed by the Crown for the purposes of the Accident Compensation Act 1985;
(h)	to enable fingerprints of accused persons and prisoners to be taken by scanning devices for identification purposes;
(i)	information relating to prisoners and persons in community corrections centres or community corrections programes between

(k)	to amend the Appeal Costs Act 1998 in relation to indemnity certificates in criminal proceedings;
(l)	to make miscellaneous amendments of a transitional and statute law revision nature.

(a)	has been charged with an indictable offence or a summary offence referred to in Schedule 7; and
(b)	is present in a police station because of the charging or has been remanded in custody in relation to the charge—

(a)	the use of reasonable force is authorised by a member in charge of a police station at the relevant time or a member of or above the rank of sergeant; and
(b)	before fingerscanning the person, the member of the police force informs the person, in language likely to be understood by the person, that reasonable force may be used to obtain it.

(a)	which identifies the person from whom the fingerscan was taken; or
(b)	from which the person's identity may be ascertained;

(1) In section 3(1) of the Corrections Act 1986,	Act No.
before the definition of "function" insert—	117/1986. Reprint No. 4
' "fingerprints" includes finger, palm, toe and sole prints, whether taken by impression or	as at 26 August
1999

by means of a device to obtain a record of	and amending
the fingerprints;	Act Nos 38/1988,
Example: Fingerprints may be taken by a scanning device	11/1993 (as

to obtain a digital record of the fingerprints.'.	amended by Nos 45/1996
and 11/2002), 86/2000,
45/2001, 72/2001 and
2/2002.
LawToday:

dpc.vic.
gov.au

(b)	persons holding a position within the meaning of section 30 of the Corrections Act 1986, other than as volunteers; or
(c)

(i)	the background and consequences of the alleged offence; and
(ii)	any, made by the defendant

(b)	it appears appropriate to the Court, which may inform itself in any way it thinks fit, that the defendant should participate in a diversion program; and
(c)	both the prosecution and the defendant consent to the Court adjourning the proceeding for this purpose—

(b)	the Court must discharge the defendant without any finding of guilt; and
(c)	the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of—

(a)	the informant is a member of the police force or an officer of a prescribed agency; and
(b)	the defendant's legal practitioner is authorised by the Secretary to access electronically the information and matters referred to in sub- clause (2); and
(c)	it is practicable to transmit electronically the information and matters referred to in sub- clause (2)—

(d)	all information and matters referred to in sub- clause (2); and
(e)	a list of the exhibits proposed to be tendered.".

(d)	the outline of evidence referred to in section 37A(1);
(e)	any exhibit referred to in the outline of evidence.

(3)	The additional evidence referred to in sub-section (2) is inadmissible unless—
(a)	it is in the form of written statements that comply with section 37A(3); and
(b)

(5)	The Court may rule as inadmissible the whole or any part of an outline of evidence, a statement or an exhibit.
(6)	If the Court finds a defendant guilty in the defendant's absence on the basis of an outline of evidence—
(a)	the Court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991; and
(b)	the Court must not make a community-based order under Division 3 of Part 3 of the Sentencing Act 1991; and
(c)	the Court must not make an order for a fine exceeding 20 penalty units under Division 4 of Part 3 of the Sentencing Act 1991 and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and
(d)	the total sum of orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 for the payment of restitution or compensation

(7)	If, at any time during the hearing, the Court considers that the charge, if proved, is likely to result in an order prohibited by sub-clause (6), the Court—
(a)	must adjourn the proceeding to enable the defendant to appear or to be brought before the Court to answer to the charge; and

(8)	Except as provided by section 90 of the Road Safety Act 1986, the Court must not be informed of nor have regard to any prior convictions or findings of guilt of the defendant.
(9)	If the Court finds a charge against a person proven and makes a sentencing order in their absence, the Court must give by post written notice to the person,
at the address on the register, of—

(b)	their right to apply for a re-hearing of the charge.
(10)	If a person is served with a notice under sub-clause (9) and applies under section 93 for a re-hearing of the

(a)	bail justice appointed under section 120 of the Magistrates' Court Act 1989; or
(b)	bail justice by virtue of holding a prescribed office under section 121 of the Magistrates' Court Act 1989;'.

1.2	In section 4(4) of the Bail Act 1977, after paragraph (ca) insert—
"(cab) subject to sub-section (2)(aa), with an offence of

(b)	section 72(1) (cultivation of narcotic plants) in circumstances where the 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;
(c)	section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a)