Criminal Procedure Regulations 2009 (Vic)
Version No. 004
Criminal Procedure Regulations 2009
S.R. No. 169/2009
Version incorporating amendments as at
3 December 2019
TABLE OF PROVISIONS
Regulation Page
Part 1—Preliminary
1Objectives
2Authorising provision
3Commencement
4Definitions
Part 2—Division 5 recordings
5Who may ask questions
6Information to be included in a Division 5 recording
7Copies of a Division 5 recording
8Transcript of a Division 5 recording
9Right of accused to listen to or view Division 5 recording
10Record of persons listening to or viewing Division 5 recordings
11Use of Division 5 recordings, copies or transcripts
12Retention and destruction of recordings and copies
Part 3—Prosecution witnesses allowances and expenses
13Attendance allowance for expert witness
14Allowances and expenses of other witness
15Meals
16Accommodation
17Travelling
18No payment to prisoners
19Evidence of expenses etc. to be produced
Part 4—Pre-hearing disclosure by electronic transmission
20Pre-hearing disclosure by electronic transmission
Part 5—Intermediaries
21Intermediaries' oath or affirmation
22Use of recordings and transcripts
Schedule 1—Oaths and affirmations
═══════════════
Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 004
Criminal Procedure Regulations 2009
S.R. No. 169/2009
Version incorporating amendments as at
3 December 2019
Part 1—Preliminary
1Objectives
The objectives of these Regulations are to—
(a)provide for the making, use, possession, editing, storage, access to and destruction of audio and audiovisual recordings referred to in Division 5 of Part 8.2 of the Criminal Procedure Act 2009; and
(b)specify the allowances and expenses that are to be paid to prosecution witnesses; and
(ba)provide for the use of various recordings for the purposes of assisting intermediaries or the training or evaluation of intermediaries; and
(c)other matters required or necessary to be prescribed by the Criminal Procedure Act 2009.
2Authorising provision
These Regulations are made under section 420 of the Criminal Procedure Act 2009.
3Commencement
These Regulations come into operation on 1 January 2010.
4Definitions
In these Regulations—
the Act means the Criminal Procedure Act 2009;
Division 5 recording means an audio or audiovisual recording of a kind referred to in Division 5 of Part 8.2 of the Act;
Part 8.2A recording means an audio or audiovisual recording made in a proceeding in which an intermediary is appointed under Part 8.2A.
Part 2—Division 5 recordings
5Who may ask questions
For the purposes of section 367 of the Act, the following persons are prescribed—
(a)a member of Victoria Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;
(b)a person authorised in writing by the Chief Commissioner of Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;
(c)if the questions are put to the witness in another State or the Northern Territory, a member of the police force of that State or Territory;
(d)if the questions are put to the witness in a Territory other than the Northern Territory, a member of the Australian Federal Police;
(e)a person on the panel established under section 389H of the Act who may be appointed as an intermediary for the
witness.
6Information to be included in a Division 5 recording
In addition to any other requirement made by or under the Act, a Division 5 recording must include—
(a)the date on which, and the place at which, the recording is made;
(b)the times at which the recording is commenced and concluded;
(c)identification of all persons present during any part of the recording;
(d)the times at which any break in questioning commenced and concluded and the reason for the break.
7Copies of a Division 5 recording
(1)The Chief Commissioner of Police may authorise copies to be made of a Division 5 recording and must ensure that the recording and all copies of the recording are kept in safe custody.
(2)If a copy of a recording is made, the Chief Commissioner must record—
(a)the date on which the copy is made; and
(b)the name and address of the person to whom the copy is given.
8Transcript of a Division 5 recording
If a transcript of a Division 5 recording is made, a copy of the transcript must be given, as soon as is practicable, to the witness answering questions or to his or her parent or guardian.
9Right of accused to listen to or view Division 5 recording
(1)If a Division 5 recording is made, the informant in the proceeding must give notice to the accused that the accused and his or her legal practitioner have the right to listen to and, in the case of an audiovisual recording, view the recording at a time and place agreed between the accused and the informant.
(2)If an accused and his or her legal practitioner wish to listen to and, in the case of an audiovisual recording, view the Division 5 recording, the informant must make the recording or a copy of it available for listening or viewing at the time and place agreed.
10Record of persons listening to or viewing Division 5 recordings
If the accused or his or her legal practitioner listens to or views a Division 5 recording, the informant, or a person acting on behalf of the informant, must record the following information—
(a)the name of the person viewing or listening to the recording;
(b)the capacity in which the person is involved in the proceeding;
(c)the date on which and the time at which the recording is viewed or listened to;
(d)the name of the person who gave access to the person to view or listen to the recording.
11Use of Division 5 recordings, copies or transcripts
(1)A Division 5 recording, a copy of a Division 5 recording or a transcript of a Division 5 recording may only be used—
(a)in, or in connection with, a proceeding referred to in Division 5 of Part 8.2 or in Part 8.2A of the Act; or
(b)in accordance with regulation 22.
(2)Except in accordance with Part 8.2 of the Act or these Regulations, a person must not have possession of, or access to, a Division 5 recording, a copy of a Division 5 recording or a transcript of a Division 5 recording.
12Retention and destruction of recordings and copies
(1)If a Division 5 recording is made, the Chief Commissioner of Police must retain one copy of the recording in his or her safe custody.
(2)Subject to subregulation (1), if a Division 5 recording is made, the Chief Commissioner of Police must ensure that any copies made of the recording are destroyed or erased, no later than 6 months after the latest of the—
(a)conclusion of the proceeding; or
(b)expiry of any appeal period in relation to the charge; or
(c)conclusion of a proceeding of a kind referred to in section 374(2) of the Act.
Part 3—Prosecution witnesses allowances and expenses
13Attendance allowance for expert witness
A prosecution witness who is called to give evidence at a court in a professional or expert capacity, is entitled—
(a)to an amount of $79.50 if the period of absence from his or her place of business or residence to attend the court is 4 hours or less; or
(b)if the period of absence is more than 4 hours, to an amount of $79.50 plus $20.60 for each additional hour, or part of an hour, that he or she is absent from his or her place of business or residence in excess of 4 hours, up to a maximum of $158.80 for any one day.
14Allowances and expenses of other witness
(1)This regulation applies to a prosecution witness who is called to give evidence at a court other than in a professional or expert capacity.
(2)If the witness is engaged in an income producing vocation and loses income because of his or her attendance at the court, he or she is entitled to the amount of income actually lost up to a maximum of $69.10 for each day, or part of a day, that he or she is necessarily absent from his or her place of business by reason of the attendance.
(3)If the witness is not engaged in an income producing vocation but he or she necessarily incurs expenditure because of his or her attendance at the court that is not provided for in regulation 15, 16, or 17, he or she is entitled to the amount of the actual expenditure incurred up to a maximum of $33.70 for each day.
15Meals
(1)A prosecution witness who is called to give evidence at court and who is necessarily absent from his or her home by reason of the attendance at court is entitled to the following allowances for meals during his or her absence—
(a)if the witness is absent from his or her home overnight—
Capital City Any other location Breakfast $17.70 $15.75 Lunch $19.75 $18.05 Dinner $34.05 $31.15 Total $71.50 $64.95 (b)if the witness is absent for a part of a day only, departing and returning the same day—
Breakfast $12.40 Lunch $12.40 Dinner $16.50 Total $41.30
(2)Despite subregulation (1), a prosecution witness is only entitled to an allowance—
(a)for breakfast, if he or she is absent from his or her home between 7.00 a.m. and 9.30 a.m.;
(b)for lunch, if he or she is absent from his or her home between 12.00 p.m. and 3.00 p.m.;
(c)for dinner, if he or she is absent from his or her home between 5.00 p.m. and 7.00 p.m..
16Accommodation
A prosecution witness who is called to give evidence at a court and who is necessarily absent from his or her home overnight because of his or her attendance at the court is entitled to the cost incurred by him or her of alternative accommodation up to a maximum of $150.00 for each night of his or her absence.
17Travelling
(1)A prosecution witness who is called to give evidence at a court is entitled to an allowance in respect of the expense of travelling to and from the court equal to the cost of the most economical form of transport having regard to the total expense of attending the court.
(2)If the witness uses his or her own vehicle, he or she is entitled to an allowance of 18 cents for each kilometre travelled to or from the court.
18No payment to prisoners
A prisoner of the Crown is not entitled to any payment under these Regulations.
19Evidence of expenses etc. to be produced
A person who is authorised to approve payments authorised by these Regulations must not approve the payment of an amount to a witness under these Regulations unless there is produced to him or her evidence satisfactory to him or her—
(a)in the case of regulation 14(2), that as a result of attending at the court the witness has sustained, or will sustain, a loss of income, or of time that the witness would otherwise have devoted to an income producing vocation; or
(b)in the case of regulations 14(3) and 16, of the expenditure or cost incurred by the witness; or
(c)in the case of regulation 15, that the witness was absent from his or her home by reason of attendance at court at the relevant times; or
(d)in the case of regulation 17(1), of the cost of the most economical form of transport.
Part 4—Pre-hearing disclosure by electronic transmission
20Pre-hearing disclosure by electronic transmission
(1)For the purposes of section 49(1)(a) of the Act, the Public Correctional Enterprise in the Department of Justice is a prescribed agency.
(2)For the purposes of section 49(2) of the Act, the E*Justice database is the prescribed database.
Part 5—Intermediaries
21Intermediaries' oath or affirmation
For the purposes of section 389K(4) of the Act, the prescribed form of oath or affirmation is the form set out in Schedule 1 or a similar form.
22Use of recordings and transcripts
(1)For a purpose referred to in subregulation (2), Victoria Police or the relevant court, as the case may be, may provide to the Secretary to the Department of Justice and Regulation a copy or transcript of—
(a)a Division 5 recording; or
(b)a recording of a special hearing; or
(c)a Part 8.2A recording.
(2)The Secretary to the Department of Justice and Regulation may authorise in writing a person to use a copy or a transcript of a recording provided under subregulation (1) for the purpose of—
(a)assisting an intermediary to perform a function set out in section 389I of the Act, including assessing a witness; or
(b)subject to subregulation (3), training or evaluation in connection with intermediaries.
(3)A copy or transcript of a Division 5 recording or a Part 8.2A recording or a copy or transcript of a recording of a special hearing may only be used in accordance with subregulation (2)(b) if—
(a)all legal proceedings in relation to the subject matter of the recording or transcript are concluded; and
(b)all reasonable measures have been taken to remove information from the recording or transcript that discloses or is likely to disclose the identity of the victim or any other person.
Schedule 1—Oaths and affirmations
Regulation 21
Oaths by intermediaries
I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person's religion) that I will well and truly communicate questions and answers, and make true explanation of all matters and things, that are required of me in this case to the best of my ability.
Affirmations by intermediaries
I solemnly and sincerely declare and affirm that I will well and truly communicate questions and answers, and make true explanation of all matters and things, that are required of me in this case to the best of my ability.
═══════════════
Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Criminal Procedure Regulations 2009, S.R. No. 169/2009 were made on 15 December 2009 by the Governor in Council under section 420 of the Criminal Procedure Act 2009, No. 7/2009 and came into operation on 1 January 2010: regulation 3.
The Criminal Procedure Regulations 2009 will sunset on 14 December 2020: see Subordinate Legislation (Criminal Procedure Regulations 2009) Extension Regulations 2019, S.R. No. 129/2019.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Criminal Procedure Regulations 2009 by statutory rules, subordinate instruments and Acts.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Criminal Procedure Amendment (Recorded Evidence-in Chief) Regulations 2011, S.R. No. 1/2011
Date of Making: 25.1.11 Date of Commencement: 25.1.11
Criminal Procedure Amendment Regulations 2018, S.R. No. 46/2018
Date of Making: 17.4.18 Date of Commencement: 17.4.18: reg. 3
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
No entries at date of publication.
0
0
0