Untitled document

Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016

S.R. No. 45/2016

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Rule 6A inserted

6A witness summons for the production of a document or thing—confidential communications

7Issuing of certificate to a victim of identity crime

8New Rule 29A inserted

9Caution to be given to person charged

10New Rule 59 substituted

11Response to notice of application

12Last known place of residence or business for the purpose of service

13Revocation of Rule 97

14Form 8 amended

15Form amended

16New Forms 12 and 13 substituted

17Form 37 amended

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Endnotes

STATUTORY RULES 2016

S.R. No. 45/2016

Magistrates' Court Act 1989

Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

1Object

The object of these Rules is to amend the Magistrates' Court Criminal Procedure Rules 2009—

(a)to clarify who is a proper officer for the purposes of the relevant provisions of the Sentencing Act 1991 and the Serious Sex Offenders (Detention and Supervision) Act 2009; and

(b)to make changes to prescribed Forms consequent on amendments to the Criminal Procedure Act 2009 by the Crimes Amendment (Child Pornography and Other Matters) Act 2015; and

(c)to update the Forms to be used for a request for a contested summary hearing and witness summons; and

(d)to make other amendments updating and correcting internal references and references to other legislation.

2Authorising provisions

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

3Commencement

These Rules come into operation on 1 July 2016.

4Principal Rules

In these Rules, the Magistrates' Court Criminal Procedure Rules 2009[1] are called the Principal Rules.

5New Rule 6A inserted

After Rule 6 of the Principal Rules insert—

"6A   Proper officer

The proper officers of the Court are—

(a)for the purposes of Part 3B of the Sentencing Act 1991—all registrars and deputy registrars; and

(b)for the purposes of sections 72(4)(b) and 75(4)(b) of the Sentencing Act 1991—all registrars; and

(c)for the purposes of section 83AJ(3) of the Sentencing Act 1991—all registrars; and

(d)for the purposes of section 172A(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009—all registrars.".

6A witness summons for the production of a document or thing—confidential communications

In Rule 25(2) of the Principal Rules, for "section 32C(2)" substitute "section 32C(1)".

7Issuing of certificate to a victim of identity crime

In Rule 29(1) and (2) of the Principal Rules, after "section 89F" insert "of the".

8New Rule 29A inserted

After Rule 29 of the Principal Rules insert—

"29A   Caution to be given to person charged

For the purposes of section 68(1) of the Criminal Procedure Act 2009, the caution set out in Form 37 may be used by the Court.".

9Caution to be given to person charged

In Rule 54 of the Principal Rules—

(a)after "Criminal Procedure Act" insert "2009";

(b)omit "and as provided by section 398 of the Crimes Act 1958";

(c)omit "in section 398 of the Crimes Act 1958 and".

10New Rule 59 substituted

For Rule 59 of the Principal Rules substitute—

"59   Application to grant, vary or revoke bail after the accused is committed to trial

An application for the granting, variation or revocation of trial bail after the date on which the committal proceedings have been concluded must be filed with the Court and served, unless the court otherwise directs.

Note

An application for the variation or for the revocation of trial bail must be in Form 12 or Form 13, respectively, of the Bail Regulations 2012.".

11Response to notice of application

In Rule 61 of the Principal Rules, for "Rule 64" substitute "Rule 60".

12Last known place of residence or business for the purpose of service

In Rule 84(d) of the Principal Rules—

(a)for "Marine Act 1988" (where first occurring) substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988";

(b)for "Marine Act 1988" (where secondly occurring) substitute "Marine Safety Act 2010".

13Revocation of Rule 97

Rule 97 of the Principal Rules is revoked.

14Form 8 amended

In Form 8 of the Principal Rules, after "Family Violence Protection Act 2008, of such a person; or" insert—

"● result in the disclosure of child pornography to the accused personally; or".

15Form amended

In Form 9 of the Principal Rules, after "comes into their possession." insert—

"However, the informant does not have an obligation to disclose to you any information, document or thing if the informant believes that doing so will result in the disclosure to you of child pornography.  In that case, you may apply to the court for an order requiring the informant to provide, or make available for inspection, the information, document or thing.".

16New Forms 12 and 13 substituted

For Forms 12 and 13 of the Principal Rules substitute—

"FORM 12

Rule 22

REQUEST FOR CONTESTED SUMMARY HEARING

In the Magistrates' Court of
Victoria at [venue]		Court reference:
Informant:	Accused:
o The accused is not legally represented
o The accused is represented by:
Estimated hearing time:
YES	NO
Has a summary case conference been held?			o	o
Does the accused consent to summary jurisdiction?			o	o

OFFENCES

YES	NO
Are there co-offenders?		o	o
If yes, names of co-offenders:
Is it an alleged sexual offence?		o	o
Is it alleged that the offence arises out of an act of family violence?		o	o

ISSUES IN DISPUTE

YES	NO
Factual arguments		o	o
Question of law		o	o
Self defence		o	o
Alibi		o	o
Voir dire		o	o
If yes to any of the above, description of issue (e.g. admissibility of all/part of VARE or ROI):
YES	NO
Application for a confidential communication? (s.32C Evidence (Miscellaneous Provisions) Act 1958)		o	o
If yes, SME date of application:     ___/___/___
Application re sexual activities of the complainant? (ss 342, 344 Criminal Procedure Act 2009)		o	o
If yes, SME date of application:     ___/___/___
Tendency/coincidence notices?		o	o
If yes, date to be served by:           ___/___/___
Material not yet provided?		o	o
If yes, provide details:
Admissions/concessions?		o	o
If yes, provide details:
WITNESSES REQUIRED
Prosecution:		YES	NO
Informant		o	o
Corroborator		o	o
Other police officer		o	o
Civilian		o	o
Expert		o	o
Child witness		o	o
Child witness service booked?	o	o
Cognitively impaired witness		o	o
Remote booked?	o	o
Protected witness		o	o
Remote booked?	o	o
Order made for Victoria Legal Aid to cross-examine witness (s.357 Criminal Procedure Act 2009)?	o	o
Accused:		YES	NO
Civilian		o	o
Expert		o	o
Child		o	o
YES	NO
Will compellability of family members arise? (s.18 Evidence Act 2008)			o	o
Legal advice arranged?	o	o
Will self-incrimination arise? (s.128 Evidence Act 2008)			o	o
Legal advice arranged?	o	o

RESOURCES REQUIRED

YES	NO
Audiovisual link		o	o
Remote witness facility		o	o
DVD/laptop		o	o
Interpreter		o	o
If yes, language required:

REQUEST MATTER BE LISTED FOR A CONTESTED HEARING

[Name and signature of Lawyer of Accused OR Accused]

[Name and signature of Prosecutor]

Note: If the accused is not legally represented, this form is to be completed by the prosecution relevant to the information in their possession.
This form is to be filed with the Court Coordinator at the relevant venue.

FORM 13

Rule 24

WITNESS SUMMONS

In the Magistrates' Court of

Victoria at [venue]  Court Reference:

To the Witness

DETAILS OF THE CASE

Name of person charged: [Accused]

Summary of the charges:

Material evidence likely to be given by the witness:

AND/OR [delete where appropriate]

Relevant documents or things likely to be in possession or control of the witness:

Who filed the charges? [Informant]

Agency and address:

Email address:  Phone no.:

WHAT YOU HAVE TO DO

You must bring this summons with you and—

ocome to court to give evidence in the proceeding

ocome to court to give evidence and also produce at the hearing the following documents or things that are in your possession or control

oproduce at the hearing the following documents or things that are in your possession or control

If you are required to give evidence, you must attend the hearing.

If you fail to attend the hearing or give evidence in accordance with this summons a warrant for your arrest may be issued.

You may produce this summons and the documents or things referred to above to the registrar of the Magistrates' Court at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the date on which you are required to attend.

WHERE WILL THE CASE BE HEARD?

The Magistrates' Court at [venue]

Address:  Phone:

When

Time:               Day:               Month:               Year:

Details about this summons

Issued at:

Date:

Issued by:

Registrar:

Magistrate:

Summons filed by: [identify party]".

17Form 37 amended

In Form 37 of the Principal Rules—

(a)for "Rule 54" substitute "Rules 29A, 54";

(b)for "Section 141(2) substitute "Sections 68(1) and 141(2)";

(c)omit "and section 398 of the Crimes Act 1958".

Dated:    19 May 2016

PETER LAURITSEN,

Chief Magistrate

LANCE MARTIN,

Deputy Chief Magistrate

JELENA POPOVIC,

Deputy Chief Magistrate

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Endnotes

[1] Rule 4: S.R. No. 181/2009. Reprint No. 1 as at 4 December 2014. Reprinted to S.R. No. 203/2014. Subsequently amended by S.R. No. 113/2015.