Criminal Procedure Amendment (Disclosure Certificates) Regulations 2022 (Vic)

Criminal Procedure Amendment (Disclosure Certificates) Regulations 2022

S.R. No. 57/2022

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provision

3Commencement

4Principal Regulations

5New Part 6 inserted

6New Schedules 2 and 3 inserted

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Endnotes

STATUTORY RULES 2022

S.R. No. 57/2022

Criminal Procedure Act 2009

Criminal Procedure Amendment (Disclosure Certificates) Regulations 2022

The Governor in Council makes the following Regulations:

Dated: 26 July 2022

Responsible Minister:

JACLYN SYMES
Attorney-General

ALEXANDRA DEBELJAKOVIC 

Clerk of the Executive Council

1Objective

The objective of these Regulations is to amend the Criminal Procedure Regulations 2020 to prescribe the form of disclosure certificates.

2Authorising provision

These Regulations are made under section 420 of the Criminal Procedure Act 2009.

3Commencement

These Regulations come into operation on 1 October 2022.

4Principal Regulations

In these Regulations, the Criminal Procedure Regulations 2020[1] are called the Principal Regulations.

5New Part 6 inserted

After Part 5 of the Principal Regulations insert—

"Part 6—Disclosure certificates

27Form of disclosure certificate

For the purposes of—

(a)section 41A of the Act, the prescribed form of a disclosure certificate is the form set out in Schedule 2; and

(b)section 110A of the Act, the prescribed form of a disclosure certificate is the form set out in Schedule 3.".

6New Schedules 2 and 3 inserted

After Schedule 1 to the Principal Regulations insert—

Schedule 2—Disclosure certificate—section 41A of the Act"

Regulation 27(a)

DISCLOSURE CERTIFICATE

(Section 41A of the Criminal Procedure Act 2009)

In the [court] at [venue]                       Court Ref.:

Acknowledgement

1.I am aware that, as the *informant/*law enforcement officer who prepared the full brief in this matter, I have a duty under the Criminal Procedure Act 2009, and at common law, to disclose to the accused all information, documents or things relevant to the alleged offence. I am aware that this duty is subject to—

(a)any claim of privilege or public interest immunity that has been determined by a court; and

(b)any immunity conferred by statute; and

(c)any relevant statutory prohibition or restriction that has the effect of precluding disclosure to the prosecution or the defence.

*2.[To be included if this certificate is completed by the informant] I am aware of my continuing obligation under the Criminal Procedure Act 2009, and at common law, to disclose to the accused any relevant information, document or thing that comes into my possession or to my notice after service of the full brief.

*3.[To be included if this certificate is completed by the informant and the proceeding is conducted by the DPP] I am aware of my obligation under section 415A of the Criminal Procedure Act 2009 to provide to the DPP any information, document or thing that I possess or have knowledge of, or that the law enforcement agency I represent possesses or has knowledge of, that is relevant to the alleged offence, subject to the provisions in section 415A.

I am aware that this obligation continues to apply to any information, document or thing that I come to possess or have knowledge of, or that the law enforcement agency I represent comes to possess or have knowledge of, after I have first complied with the requirements of section 415A.

4.The information I have given in this certificate is true, to the best of my knowledge and belief, and has been reviewed by a superior officer within the law enforcement agency I represent. [NOTE: A superior officer is a person to whom an organisation has given responsibility for reviewing disclosure certificates. If the informant or law enforcement officer completing this certificate is a member of Victoria Police, a superior officer must be a person who holds a rank senior to the informant or law enforcement officer.]

*Delete if not applicable

Notes

1. See sections 41(1)(f) and 45 of the Criminal Procedure Act 2009.

2. See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

Schedule 1—Relevant material not contained in brief that is subject to a privilege or immunity (section 41A(1)(a)(i) and (ii) of the Criminal Procedure Act 2009)

*Relevant information, or a relevant document or thing, is not contained in the full brief because it is the subject of a claim of privilege, a claim of public interest immunity, or an immunity conferred by statute.

This information, document or thing, and the nature of the privilege or immunity to which it is subject, is described in the table below subject to any order of a court.

Information, document or thing	Nature of privilege or immunity
1.	[Describe the information, document or thing]	[Describe the privilege or immunity]
2.
3.
4.
5.
6.
7.

Note

See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

*No relevant information, document or thing has been withheld from the full brief because of a claim of privilege, a claim of public interest immunity, or an immunity conferred by statute.

*Delete if not applicable

Schedule 2—Relevant material not contained in brief that is subject to a statutory prohibition or restriction on disclosure (section 41A(1)(a)(iii) of the Criminal Procedure Act 2009)

*Relevant information, or a relevant document or thing, is not contained in the full brief because it is the subject of a statutory prohibition or restriction on disclosure that has the effect of precluding disclosure to the prosecution or the defence.

This information, document or thing, and the nature of the prohibition or restriction to which it is subject, is described in the table below to the extent permitted by the relevant statute and subject to any order of a court.

Information, document or thing	Nature of statutory prohibition or restriction
1.	[Describe the information, document or thing]	[Describe the statutory prohibition or restriction on disclosure including, if permitted, the relevant statute and section]
2.
3.
4.
5.
6.
7.

Note

See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

*No relevant information, document or thing has been withheld from the full brief because of a statutory prohibition or restriction on disclosure that has the effect of precluding disclosure to the prosecution or the defence.

*Delete if not applicable

Signature of relevant officer:

Name and position of relevant officer:

Address:

Telephone:

Email address:

Date:

Note

This certificate must be completed by the informant or, if the informant did not investigate the offence that is the subject of the proceeding, the law enforcement officer who prepared the full brief and it must be served with the full brief.

Schedule 3—Disclosure certificate—section 110A of the Act

Regulation 27(b)

DISCLOSURE CERTIFICATE

(section 110A of the Criminal Procedure Act 2009)

In the [court] at [venue]                       Court Ref.:

Acknowledgement

1.I am aware that, as the *informant/*law enforcement officer who prepared the hand-up brief in this matter, I have a duty under the Criminal Procedure Act 2009, and at common law, to disclose to the accused all information, documents or things relevant to the alleged offence. I am aware that this duty is subject to—

(a)any claim of privilege or public interest immunity that has been determined by a court; and

(b)any immunity conferred by statute; and

(c)any relevant statutory prohibition or restriction that has the effect of precluding disclosure to the prosecution or the defence.

*2.[To be included if this certificate is completed by the informant] I am aware of my continuing obligation under the Criminal Procedure Act 2009, and at common law, to disclose to the accused any relevant information, document or thing that comes into my possession or to my notice after service of the hand-up brief.

*3.[To be included if this certificate is completed by the informant and the proceeding is conducted by the DPP] I am aware of my obligation under section 415A of the Criminal Procedure Act 2009 to provide to the DPP any information, document or thing that I possess or have knowledge of, or that the law enforcement agency I represent possesses or has knowledge of, that is relevant to the alleged offence, subject to the provisions in section 415A.

I am aware that this obligation continues to apply to any information, document or thing that I come to possess or have knowledge of, or that the law enforcement agency I represent comes to possess or have knowledge of, after I have first complied with the requirements of section 415A.

4.The information I have given in this certificate is true, to the best of my knowledge and belief, and has been reviewed by a superior officer within the law enforcement agency I represent. [NOTE: A superior officer is a person to whom an organisation has given responsibility for reviewing disclosure certificates. If the informant or law enforcement officer completing this certificate is a member of Victoria Police, a superior officer must be a person who holds a rank senior to the informant or law enforcement officer.]

*Delete if not applicable

Notes

1. See section 110A(3) of the Criminal Procedure Act 2009.

2. See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

Schedule 1—Relevant material not contained in brief that is subject to a privilege or immunity (section 110A(1)(a)(i) and (ii) of the Criminal Procedure Act 2009)

*Relevant information, or a relevant document or thing, is not contained in the hand-up brief because it is the subject of a claim of privilege, a claim of public interest immunity, or an immunity conferred by statute.

This information, document or thing, and the nature of the privilege or immunity to which it is subject, is described in the table below subject to any order of a court.

Information, document or thing	Nature of privilege or immunity
1.	[Describe the information, document or thing]	[Describe the privilege or immunity]
2.
3.
4.
5.
6.
7.

Notes

1. See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

2. See section 110A(3) of the Criminal Procedure Act 2009 which provides that in completing a disclosure certificate, the relevant officer is not required to describe any information, document or thing, or the nature of the privilege, immunity, prohibition or restriction to which that information, document or thing is subject, in a way that would prejudice—

(a)a claim of public interest immunity made to the Supreme Court in its inherent jurisdiction that has commenced or that the informant knows will be commenced; or

(b)an application for a non-disclosure order that has commenced or that the informant knows will be commenced.

3. See also section 119(fa) of the Criminal Procedure Act 2009 which requires, subject to any order of a court, the prosecution to describe in the case direction notice certain information not described in a disclosure certificate.

*No relevant information, document or thing has been withheld from the hand-up brief because of a claim of privilege, a claim of public interest immunity, or an immunity conferred by statute.

*Delete if not applicable

Schedule 2—Relevant material not contained in brief that is subject to a statutory prohibition or restriction on disclosure (section 110A(1)(a)(iii) of the Criminal Procedure Act 2009)

*Relevant information, or a relevant document or thing, is not contained in the hand-up brief because it is the subject of a statutory prohibition or restriction on disclosure that has the effect of precluding disclosure to the prosecution or the defence.

This information, document or thing, and the nature of the prohibition or restriction to which it is subject, is described in the table below to the extent permitted by the relevant statute and subject to any order of a court.

Information, document or thing	Nature of statutory prohibition or restriction
1.	[Describe the information, document or thing]	[Describe the statutory prohibition or restriction on disclosure including, if permitted, the relevant statute and section]
2.
3.
4.
5.
6.
7.

Note

See also section 416(2) of the Criminal Procedure Act 2009 which provides that nothing in that Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under that or any other Act or any rule of law.

*No relevant information, document or thing has been withheld from the hand-up brief because of a statutory prohibition or restriction on disclosure that has the effect of precluding disclosure to the prosecution or the defence.

*Delete if not applicable

Signature of relevant officer:

Name and position of relevant officer:

Address:

Telephone:

Email address:

Date:

Note

This certificate must be completed by the informant or, if the informant did not investigate the offence that is the subject of the proceeding, the law enforcement officer who prepared the hand-up brief and it must be served with the hand-up brief.".

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Endnotes

[1] Reg. 4: S.R. No. 134/2020.