Magistrates' Court Criminal Procedure Amendment Rules 2023 (Vic)

Magistrates' Court Criminal Procedure Amendment Rules 2023

S.R. No. 129/2023

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Content and form of documents

6Subpoenas relating to confidential communications

7New Rule 27A inserted

8Prosecution to provide relevant contact details

9Form 12 amended

10Form 13A substituted

11New Form 13B inserted

12Form 45 amended

13Form 46 amended

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Endnotes

STATUTORY RULES 2023

S.R. No. 129/2023

Magistrates' Court Act 1989
Criminal Procedure Act 2009

Magistrates' Court Criminal Procedure Amendment Rules 2023

The Chief Magistrate together with one or more Deputy Chief Magistrates jointly make the following Rules:

1Object

The object of these Rules is to amend the Magistrates' Court Criminal Procedure Rules 2019—

(a)to make amendments consequential to the enactment of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022; and

(b)to make other minor and technical amendments.

2Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and section 419 of the Criminal Procedure Act 2009 and all other enabling powers.

3Commencement

These Rules come into operation on 13 December 2023.

4Principal Rules

In these Rules, the Magistrates' Court Criminal Procedure Rules 2019[1] are called the Principal Rules.

5Content and form of documents

In Rule 10(3)(d) of the Principal Rules omit "document exchange number,".

6Subpoenas relating to confidential communications

(1)For the heading to Rule 27 of the Principal Rules substitute—

"Subpoenas relating to confidential communications and protected health information".

(2)For Rule 27(1) of the Principal Rules substitute—

"(1)For the purposes of section 32CC(1) of the Evidence (Miscellaneous Provisions) Act 1958, notice of an intention to apply for leave under section 32C(1) of that Act must be in Form 13A.".

(3)In Rule 27(2) of the Principal Rules (where first occurring), for "paragraph (1)" substitute "section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958".

(4)In Rule 27(2) of the Principal Rules (where secondly occurring), for "(2)" substitute "(3)".

7New Rule 27A inserted

After Rule 27 of the Principal Rules insert—

"27A   Notice to protected person

For the purposes of section 32CD(3)(b) of the Evidence (Miscellaneous Provisions) Act 1958, a notice under section 32CD(1) of that Act must be in Form 13B.".

8Prosecution to provide relevant contact details

In Rule 50(1)(b) and (c) of the Principal Rules omit ", DX number".

9Form 12 amended

In Form 12 of the Principal Rules, under the heading "ISSUES IN DISPUTE", after "confidential communication" insert "or protected health information".

10Form 13A substituted

For Form 13A of the Principal Rules substitute—

"Form 13A—Notice of intention to apply for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958

Rule 27

NOTICE OF INTENTION TO APPLY FOR LEAVE UNDER SECTION 32C(1) OF THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

(Section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958)

In the Magistrates' Court of

Victoria at [venue]  Court Ref.:

IN THE MATTER of:

Informant: [full name]

Accused: [full name]

This form is filed on behalf of:

Legal representative:

Name of legal practice/agency:

Telephone:

Email address:

The charges are listed on:

TAKE NOTICE THAT:

Pursuant to section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 (the Act), the applicant intends to make an application on [date] at [time] in the Magistrates' Court at [place] to seek leave:

*to compel the production of a document that contains/*to produce a document that discloses/*to adduce evidence that discloses:

*a confidential communication (as defined in section 32B(1) of the Act)/*protected health information (as defined in section 32B(1) of the Act).

The nature of the *confidential communication/*protected health information to be produced or adduced is:

[insert a description of the material sought, confined to relevant dates and times and restricting where possible the number and nature of documents sought]

The matters to be taken into account to determine whether leave should be granted are set out in section 32D of the Act.

*You may, with the leave of the Court, appear and make submissions in relation to the application.

Signature of applicant:

Date:

NOTE:

This notice must be served on the following persons not less than 14 days before the date for the hearing of the application—

·    each other party to the proceeding;

·    the informant;

·if the notice relates to a confidential communication, the medical practitioner or counsellor to whom that communication was made;

·    if the notice relates to protected health information, either—

·the person who recorded or collected the information (or, if the information is an opinion, formed that opinion); or

·if the information is held by an organisation, that organisation.

*A draft witness summons is attached to this notice.

*Delete if not applicable".

11New Form 13B inserted

After Form 13A of the Principal Rules insert—

"Form 13B—Notice to protected person of application for leave under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958

Rule 27A

NOTICE TO PROTECTED PERSON OF APPLICATION FOR LEAVE UNDER SECTION 32C(1) OF THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

(Section 32CD(1) of the Evidence (Miscellaneous Provisions) Act 1958)

In the Magistrates' Court of

Victoria at [venue]  Court Ref.:

IN THE MATTER of:

Informant: [full name]

Accused: [full name]

NOTICE IS GIVEN BY:

ADDRESS:

THIS MATTER IS NEXT LISTED ON: [date] for [type of hearing]

[name of applicant] intends to apply under section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 (the Act) for leave:

*to compel the production of a document that contains/*to produce a document that discloses/*to adduce evidence that discloses:

*a confidential communication (as defined in section 32B(1) of the Act) that you have made/*protected health information (as defined in section 32B(1) of the Act) about you.

The nature of the *confidential communication/*protected health information to be produced or adduced is:

[insert a description of the material sought]

The application is listed for hearing at [time] in the Magistrates' Court at [place].

Email address for the Court: [insert email address for that place]

The matters to be taken into account to determine whether leave should be granted are set out in section 32D of the Act.

You are entitled:

·to appear in person at Court for the hearing of the application; and

·to make submissions to the Court about the application; and

·to give the Court a confidential statement (in the form of an affidavit) that describes the harm that is likely to be caused to you if the application is granted.

If you give the Court a confidential statement, the Court must not make the statement available or disclose its contents to anyone other than you or your legal representative, unless the Court considers that it is in the interests of justice to do so.

If you intend to appear in person at Court for the hearing of the application, please contact: [insert contact details of the informant/prosecutor]

If you intend to give the Court a confidential statement, it can be filed with the Court by emailing a copy of the confidential statement, no later than 2 days before the date listed for the hearing, to the email address for the Court (listed above).

A confidential statement must be in the form of an affidavit. An affidavit is a written statement of fact, sworn by oath or affirmation.

You may wish to consider whether to obtain legal advice in relation to the application.

If you do not have a lawyer, the Law Institute of Victoria can assist in connecting you through the 'Find Your Lawyer' referral service. The Find Your Lawyer referral service operates by telephone from 9 a.m. to 5 p.m. Monday to Friday and can be reached by calling 03 9607 9550. For further information visit

Victoria Legal Aid (VLA) can provide preliminary assistance through their Legal Help referral service. The Legal Help referral service operates by telephone from 8 a.m. to 6 p.m. Monday to Friday and can be reached by calling 1300 972 387. You can also leave a message via the 'Legal Help Chat' function that can be accessed through VLA's website by visiting

Alternatively, you may wish to seek assistance through your local community legal centre. The Federation of Community Legal Centres (Vic) (FCLC) can assist in finding your local centre and how to contact them for an appointment. The FCLC can be reached by calling 03 9652 1501. For more information visit

The Victorian Aboriginal Legal Service (VALS) can provide legal advice to Aboriginal and Torres Strait Islander people. The VALS telephone service operates from 9 a.m. to 5 p.m. Monday to Friday and can be reached by calling 1800 064 865. 

Date:

[signature]

*Delete if not applicable".

12Form 45 amended

In Form 45 of the Principal Rules, for "The Queen" substitute "The Informant".

13Form 46 amended

In Form 46 of the Principal Rules, for "The Queen" substitute "The Informant".

Dated:   8 December 2023

LISA HANNAN,

Chief Magistrate

SUSAN WAKELING,

Deputy Chief Magistrate

TIMOTHY BOURKE,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 4: S.R. No. 143/2019 as amended by S.R. Nos 40/2020, 80/2020, 102/2021, 5/2022 and 101/2022.