Supreme Court (Chapter I and Chapter Vi Dual Commission Holder Amendments) Rules 2016 (Vic)

Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules 2016

S.R. No. 105/2016

TABLE OF PROVISIONS

Rule  Page

Part 1—Preliminary

1Object

2Authorising provisions

3Commencement

Part 2—Amendment of Chapter I

4Application of Part 5 of Order 58

Part 3—Amendment of Chapter VI

5Rule 3C.01 substituted

6Form 6–3CA amended

7Form 6–3CB amended

8Form 6–3CC amended

9Form 6–3CD amended

10Form 6–3CE amended

11New Order 3D inserted

12New Forms 6–3DA to 6–3DH inserted

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Endnotes

STATUTORY RULES 2016

S.R. No. 105/2016

Supreme Court Act 1986

Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules 2016

The Judges of the Supreme Court make the following Rules:

Part 1—Preliminary

1Object

The object of these Rules is to amend Chapter I and Chapter VI of the Rules of the Supreme Court as a consequence of changes made by the Justice Legislation Further Amendment Act 2016 in relation to the Chief Magistrate who is a dual commission holder.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3Commencement

These Rules come into operation on 1 September 2016.

Part 2—Amendment of Chapter I

4Application of Part 5 of Order 58

In Rule 58.22 of the Supreme Court (General Civil Procedure) Rules 2015[1], after "of that Court" insert "or by the Chief Magistrate who is a dual commission holder".

Part 3—Amendment of Chapter VI

5Rule 3C.01 substituted

For Rule 3C.01 of the Supreme Court (Criminal Procedure) Rules 2008[2] substitute—

"3C.01   Application of Order 3C

This Order applies to appeals to the Trial Division under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 from the Children's Court constituted by the President of that Court or by the Chief Magistrate who is a dual commission holder.".

6Form 6–3CA amended

In Form 6–3CA of the Supreme Court (Criminal Procedure) Rules 2008, for "the President" substitute "the *President/

*Chief Magistrate who is a dual commission holder".

7Form 6–3CB amended

In Form 6–3CB of the Supreme Court (Criminal Procedure) Rules 2008, for "the President" substitute "the *President/

*Chief Magistrate who is a dual commission holder".

8Form 6–3CC amended

In Form 6–3CC of the Supreme Court (Criminal Procedure) Rules 2008, for "the President" substitute "the *President/

*Chief Magistrate who is a dual commission holder".

9Form 6–3CD amended

In Form 6–3CD of the Supreme Court (Criminal Procedure) Rules 2008, for "the President" substitute "the *President/

*Chief Magistrate who is a dual commission holder".

10Form 6–3CE amended

In Form 6–3CE of the Supreme Court (Criminal Procedure) Rules 2008, for "the President" substitute "the *President/

*Chief Magistrate who is a dual commission holder".

11New Order 3D inserted

After Order 3C of the Supreme Court (Criminal Procedure) Rules 2008 insert—

"ORDER 3D

APPEALS TO TRIAL DIVISION UNDER PART 6.1 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009

3D.01Application of this Order

This Order applies to any appeal under Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009 to the Trial Division of the Court from the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder.

3D.02Definitions

In this Order, unless the context or subject matter otherwise requires—

the Act means the Criminal Procedure Act 2009.

3D.03Notice of appeal by offender

(1)A notice of appeal and undertaking to proceed under section 255 of the Act shall be in Form 6–3DA.

(2)The notice of appeal and undertaking to proceed shall be signed by the appellant in the presence of—

(a)the Registrar of the Magistrates' Court with whom the notice of appeal is filed;

(b)if the appellant is in a prison, youth justice centre or youth residential centre—

(i)the officer in charge of the prison, youth justice centre or youth residential centre; or

(ii)any prison officer of or above the rank of senior prison officer; or

(c)if the appellant is in a police gaol, a police officer—

(i)of or above the rank of sergeant; or

(ii)for the time being in charge of a police station.

(3)A notice under section 255(6)(a) of the Act shall be in Form 6–3DB.

3D.04Appeals by DPP against sentence or failure to fulfil undertaking

(1)A notice of appeal referred to in section 258 of the Act in respect of an appeal by the DPP under section 257 of the Act shall be in Form 6–3DC.

(2)Within 7 days after serving a copy of the notice of appeal in accordance with section 258(2) of the Act, the DPP shall file in the Supreme Court—

(a)a copy of the notice of appeal; and

(b)an affidavit of service.

(3)A notice of appeal referred to in section 261 of the Act in respect of an appeal by the DPP under section 260 of the Act shall be in Form 6–3DD.

(4)Within 7 days after serving a copy of the notice of appeal in accordance with section 261(2) of the Act, the DPP shall file in the Supreme Court—

(a)a copy of the notice of appeal; and

(b)an affidavit of service.

3D.05Prothonotary to fix date for hearing of appeal

The Prothonotary shall—

(a)fix the date and place for hearing of each appeal to which this Order applies and of each application referred to in Rule 3D.08; and

(b)notify in writing each party and each legal practitioner who has given notice under Rule 3D.10 of the date and place of hearing within a reasonable time before the hearing.

3D.06Abandonment of appeal

(1)A notice of abandonment of appeal under section 266 of the Act shall be in Form 6–3DE.

(2)For the purposes of the striking out of an appeal under section 266(4) of the Act, the Court may be constituted by the Prothonotary or a Judge of the Court.

3D.07Written notice of abandonment of appeal—conviction only

Written notice under section 266(2) of the Act that an appeal against conviction is abandoned, but an appeal against sentence is pursued, shall be in Form 6–3DF.

3D.08Application to set aside an order striking out appeal for failure to appear

(1)An application under section 267(3) of the Act to set aside an order striking out an appeal for failure to appear shall be in Form 6–3DG.

(2)The Prothonotary shall, as soon as practicable, forward a copy of the application to the court where the original sentence or order was imposed.

3D.09Recording and notification of result of appeal

(1)The Court shall record the result of each appeal to which this Order applies in a result of appeal form in Form 6–3DH.

(2)The Prothonotary shall forward a copy of the result of appeal form to—

(a)the court where the original sentence or order was imposed;

(b)the parties; and

(c)any person or authority concerned with the administration of any sentence or order originally imposed in the Magistrates' Court, or any sentence or order imposed by the Court on appeal.

(3)If more than one appeal is heard together, it is not necessary to record the sentence on a separate result of appeal form, but the outcome of each appeal, the particulars of each charge and the sentences imposed shall be recorded in full.

(4)Where the Court has imposed a sentence of imprisonment or detention, the result of appeal form shall be sufficient to authorise the keeping of the appellant for the period and in the manner set out in the form.

3D.10Legal practitioner to notify that practitioner acts

(1)If a legal practitioner is engaged to act on behalf of an appellant or a respondent to an appeal to which this Order applies, the legal practitioner, without delay, shall notify the Prothonotary in writing that the practitioner so acts and provide an address for service.

(2)If a legal practitioner ceases to act on behalf of an appellant or a respondent or the address for service is changed, the legal practitioner shall without delay so notify the Prothonotary in writing.".

12New Forms 6–3DA to 6–3DH inserted

After Form 6–3CE of the Supreme Court (Criminal Procedure) Rules 2008 insert—

"Rule 3D.03(1) FORM 6–3DA

NOTICE OF APPEAL

MAGISTRATES' COURT CASE No.

SUPREME COURT CASE No.

IN THE MATTER OF

THIS FORM IS FILED ON BEHALF OF:

ADDRESS:

CONTACT DETAILS

[If represented, please complete the legal practitioner details below]

Contact No.:

Email address:

Address for service:

*I have legal representation [complete below]

*I do not have legal representation

Firm:  Practitioner's name:

Solicitor Code:  Ref.:

TO the Prothonotary of the Supreme Court at: [place]

AND TO the Respondent: [name]

Address for Respondent:

I appeal under section 254 of the Criminal Procedure Act 2009 against a decision made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].

The details of the offences and Sentence/Order imposed are:

Offence Sentence/Order

I am appealing against:

*Conviction and sentence

*Sentence alone

STATEMENT REGARDING POWER TO IMPOSE A MORE SEVERE SENTENCE

I am aware that on my appeal the Supreme Court may impose a more severe sentence than the one imposed by the Magistrates' Court.

Date:

[Signature of Appellant]

UNDERTAKING TO PROCEED WITH APPEAL

I [name]

of [address] undertake to:

(a)appear at the Supreme Court to proceed with the appeal at a place and on a day fixed by the Prothonotary of the Supreme Court and to appear at the Supreme Court for the duration of the appeal.

(b)notify the Prothonotary of the Supreme Court in writing of any change of address from that appearing in this notice of appeal.

Date:

[Signature of Appellant]

In the presence of:

[Signature of Magistrates' Court Registrar/Prison Officer/Police Officer]

I am aware of all the additional information set out below in this notice of appeal.

Date:

[Signature of Appellant]

SERVICE OF NOTICE OF APPEAL

A copy of the notice of appeal must be served on the respondent within 7 days after the day on which the notice is filed.  The notice must be served:

(a)by giving a copy of the document to—

(i)the informant; or

(ii)a person representing the informant at a hearing in relation to the charge; or

(b)by sending a copy of the document by prepaid ordinary post addressed to the informant at the business address nominated by the informant under section 18 of the Criminal Procedure Act 2009; or

(c)by sending a copy of the document by fax or email addressed to the informant at the fax number or email address nominated by the informant under section 18 of that Act; or

(d)by leaving a copy of the document for the informant at the informant's business address with a person who appears to work there; or

(e)in any other manner agreed between the informant and the party serving the document.

ABANDONING AN APPEAL

If you decide to abandon your appeal against both conviction and sentence, you must file in the Supreme Court a notice of abandonment of appeal in the form required by the Supreme Court (Criminal Procedure) Rules.

If you decide to abandon your appeal against conviction but pursue your appeal against sentence alone you must file in the Supreme Court a written notice of abandonment of appeal in the form required by the Supreme Court (Criminal Procedure) Rules.

You should contact the office of the Prothonotary of the Supreme Court for further information.

FAILURE TO APPEAR AT AN APPEAL

If you fail to appear at the appeal hearing the Supreme Court may strike out your appeal or adjourn the proceedings on any terms the Court thinks appropriate.

COSTS OF AN APPEAL

If the Supreme Court strikes out or dismisses your appeal, it may order you to pay all or a specified portion of the respondent's costs if it is satisfied that the appeal was brought vexatiously or frivolously or in abuse of process.

APPLICATION FOR LEAVE TO APPEAL

If your notice of appeal has been filed more than 28 days after you were sentenced, your appeal is deemed to be an application for leave to appeal.  The Supreme Court will consider your application prior to an appeal hearing commencing.  If your application is granted, the Supreme Court may continue to hear your appeal on that day or adjourn the matter to a future date.

LEGAL ASSISTANCE

If you wish to make application for legal assistance you must make application in writing to Victoria Legal Aid (Melbourne—9269 0120) (Rural Areas—1800 677 402).  The staff of the Magistrates' Court or the staff of the Supreme Court can advise you of the address of the nearest Victoria Legal Aid office.  Such application must be made immediately because it may take some time to process.  You should take all necessary steps promptly so that, if you are granted legal aid, there will be enough time for advice to be given to you by your lawyer about the appeal.

*Delete if not applicable

__________________

Rule 3D.03(3) FORM 6–3DB

NOTICE UNDER SECTION 255(6)(a) OF THE CRIMINAL PROCEDURE ACT 2009 FOR PROPOSED APPELLANT

To the proposed Appellant:

TAKE NOTICE that in relation to your proposed appeal to the Supreme Court from the decision of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Supreme Court may impose a sentence which is more severe than the one imposed by the Magistrates' Court.

__________________

Rule 3D.04(1) FORM 6–3DC

MAGISTRATES' COURT CASE No.

SUPREME COURT CASE No.

NOTICE OF APPEAL UNDER SECTION 257 OF THE CRIMINAL PROCEDURE ACT 2009 BY DPP AGAINST SENTENCE IMPOSED BY MAGISTRATES' COURT CONSTITUTED BY CHIEF MAGISTRATE WHO IS A DUAL COMMISSION HOLDER

To the Registrar of the Magistrates' Court:

I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"), being satisfied that the appeal should be brought in the public interest, appeal under section 257 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder on [name of offender] of [address].

The general grounds of appeal are:

[state the general grounds of the appeal]

Date:

[Signed by or on behalf of DPP]

PARTICULARS

1.Name of offender on whom sentence imposed:

2.Offence for which offender convicted and sentenced to which this appeal relates:

3.Convicted at: [place and court]

4.Chief Magistrate:

5.Date of conviction:

6.Sentence:

7.Date of sentence:

8.Name and address of legal practitioner who represented offender at summary proceeding:

9.Name of counsel (if any) who represented offender at summary proceeding:

HEARING OF APPEAL

The Prothonotary of the Supreme Court will fix the date and place for the hearing of this appeal and will, a reasonable time before the hearing, notify the date and place of the hearing, in writing, to each party and to each legal practitioner who has given notice that they act on behalf of a party.

__________________

Rule 3D.04(3) FORM 6–3DD

MAGISTRATES' COURT CASE No.

SUPREME COURT CASE No.

NOTICE OF APPEAL UNDER SECTION 260 OF THE CRIMINAL PROCEDURE ACT 2009 BY DPP AGAINST SENTENCE IMPOSED BY MAGISTRATES' COURT CONSTITUTED BY CHIEF MAGISTRATE WHO IS A DUAL COMMISSION HOLDER

To the Registrar of the Magistrates' Court:

I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"), appeal under section 260 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrate's Court constituted by the Chief Magistrate who is a dual commission holder on [name of offender] of [address].  The respondent was convicted of an indictable offence that was heard and determined summarily by the Magistrates' Court.  The sentence imposed on the respondent was less severe because of an undertaking given by the respondent to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence.  I consider that respondent has failed, wholly or partly, to fulfil the undertaking.

Date:

[Signed by the DPP personally]

PARTICULARS

1.Name of offender on whom sentence imposed:

2.Offence for which offender convicted and sentenced to which this appeal relates:

3.Convicted at: [place and court]

4.Chief Magistrate:

5.Date of conviction:

6.Sentence:

7.Date of sentence:

8.Name and address of legal practitioner who represented offender at summary proceeding:

9.Name of counsel (if any) who represented offender at summary proceeding:

HEARING OF APPEAL

The Prothonotary of the Supreme Court will fix the date and place for the hearing of this appeal and will, a reasonable time before the hearing, notify the date and place of the hearing, in writing, to each party and to each legal practitioner who has given notice that they act on behalf of a party.

__________________

Rule 3D.06 FORM 6–3DE

IN THE SUPREME COURT   CASE No.

OF VICTORIA

AT

IN THE MATTER OF

NOTICE OF ABANDONMENT OF APPEAL

THIS FORM IS FILED ON BEHALF OF:

ADDRESS:

THIS MATTER IS NEXT LISTED ON: [date] FOR                  .

CONTACT DETAILS

[If represented, please complete the legal practitioner details below]

Contact No.:

Email address:

Address for service:

*I have legal representation [complete below]

*I do not have legal representation

Firm:  Practitioner's name:

Solicitor Code:  Ref.:

TO the Prothonotary of the Supreme Court at:

AND TO the Respondent: [name] of [address]

I abandon my appeal against *the conviction and sentence/*the sentence imposed in the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].

The Magistrates' Court reference number is

The *conviction and sentence/*sentence/*orders imposed *was/*were

I acknowledge that as a result of filing this form, my appeal will be struck out and the sentence of the Magistrates' Court will be reinstated and that it may be enforced immediately.

Date:

[Signature of Appellant]

*Delete if not applicable

__________________

Rule 3D.07 FORM 6–3DF

IN THE SUPREME COURT   CASE No.

OF VICTORIA

AT

IN THE MATTER OF

WRITTEN NOTICE OF ABANDONMENT OF APPEAL—CONVICTION ONLY

THIS FORM IS FILED ON BEHALF OF:

ADDRESS:

THIS MATTER IS NEXT LISTED ON: [date] FOR                  .

CONTACT DETAILS

[If represented, please complete the legal practitioner details below]

Contact No.:

Email address:

Address for service:

*I have legal representation [complete below]

*I do not have legal representation

Firm:  Practitioner's name:

Solicitor Code:  Ref.:

TO the Prothonotary of the Supreme Court at:

AND TO the Respondent: [name] of [address]

I appealed against the conviction and sentence imposed on me by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].

The Magistrates' Court reference number is

I abandon my appeal against conviction.  I wish to proceed only with my appeal against sentence.

Date:

[Signature of Appellant]

*Delete if not applicable

__________________

Rule 3D.08 FORM 6–3DG

IN THE SUPREME COURT   CASE No.

OF VICTORIA

AT

IN THE MATTER OF

APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR

THIS FORM IS FILED ON BEHALF OF:

ADDRESS:

THIS MATTER WAS LISTED ON: [date]

CONTACT DETAILS

[If represented, please complete the legal practitioner details below]

Contact No.:

Email address:

Address for service:

*I have legal representation [complete below]

*I do not have legal representation

*I represent the applicant

Firm:  Practitioner's name:

Solicitor Code:  Ref.:

TO the Prothonotary of the Supreme Court at:

AND TO the Respondent: [name] of [address]

An appeal was lodged against a decision of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].

The Magistrates' Court reference number is

The appellant applies under section 267(3) of the Criminal Procedure Act 2009 for the setting aside of the order made on [date] striking out the appeal for the failure of the appellant to appear at the Supreme Court at the time listed for the hearing of the appeal.

Reasons for application

The application is made on the grounds that the failure to appear was not due to fault or neglect on the part of the appellant.  The appellant's reasons are: [give details]

I understand that notice of this application must be served on the respondent a reasonable time before the hearing of the application and that under section 392 of the Criminal Procedure Act 2009, the notice must be served:

(a)by giving a copy of the document to—

(i)the informant; or

(ii)a person representing the informant at a hearing in relation to the charge; or

(b)by sending a copy of the document by prepaid ordinary post addressed to the informant at the business address nominated by the informant under section 18 of that Act; or

(c)by sending a copy of the document by fax or email addressed to the informant at the fax number or email address nominated by the informant under section 18 of that Act; or

(d)by leaving a copy of the document for the informant at the informant's business address with a person who appears to work there; or

(e)in any other manner agreed between the informant and the party serving the document.

I also understand that the filing of this application does not stay the original sentence.

Date:

[Signature of Applicant/
Applicant's legal practitioner]

HEARING OF APPLICATION

The Prothonotary of the Supreme Court will fix the date and place for the hearing of this application and will, a reasonable time before the hearing, notify the date and place of the hearing, in writing, to each party and to each legal practitioner who has given notice that they act on behalf of a party.

*Delete if not applicable

__________________

Rule 3D.09 FORM 6–3DH

IN THE SUPREME COURT   CASE No.

OF VICTORIA

AT

IN THE MATTER OF

APPELLANT RESPONDENT

RESULT OF APPEAL FORM

TO the Prothonotary of the Supreme Court at:

TO the Registrar of the Magistrates' Court at:

Regarding an appeal against

Recorded at the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder [place] on [date].

Magistrates' Court reference number

Result of Appeal/Application

The result of the appeal is:

Offence/Type of Order Original Sentence/Order Decision on Appeal

The order was made by [*Judge/*Prothonotary] on [date].

[Signature of *Judge/*Prothonotary]

*Delete if not applicable

__________________".

Dated:    25 August 2016

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

R. S. OSBORN, J.A.

DAVID F. R. BEACH, J.A.

S. G. E. McLEISH, J.A.

ELIZABETH HOLLINGWORTH, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

JAMES JUDD, J.

PETER VICKERY, J.

TERRY FORREST, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

JOHN R. DIXON, J.

C. MACAULAY, J.

KATE McMILLAN, J.

GREG GARDE, J.

G. J. DIGBY, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

JOANNE CAMERON, J.

MICHAEL McDONALD, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

MAREE KENNEDY, J.

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Endnotes

[1] Rule 4: S.R. No. 103/2015 as amended by S.R. Nos 143/2015, 144/2015, 14/2016, 51/2016 and 52/2016.

[2] Rule 5: S.R. No. 12/2008. Reprint No. 2 as at 26 March 2015. Reprinted to S.R. No. 207/2014 and subsequently amended by S.R. Nos 39/2015, 40/2015 and 143/2015.