Untitled document
Supreme Court (Criminal Procedure Amendment) Rules 2010
S.R. No. 55/2010
TABLE OF PROVISIONS
Rule Page
PART 1—PRELIMINARY
1Object
2Authorising provisions
3Commencement
4Principal Rules
PART 2—MISCELLANEOUS AMENDMENTS RELATING TO CRIMINAL PROCEDURE
5New Rule 1.18
1.18General applications
6Certificate of conviction
7Witnesses before Court of Appeal—section 318
8Duties of prison officers
9Order 3B re-enacted as Part 9 of Order 2
PART 9—OTHER APPLICATIONS TO COURT OF APPEAL
2.55Application of Part
2.56Application by summons
2.57Service
2.58Directions hearing
2.59Court of Appeal may set aside or give directions
10Definitions—Order 4
11Case conference
12New Rule 4.14
4.14Summons or warrant when direct indictment filed
13New Form 6–1C
Form 6–1C—General Application
14New Forms 6–4G and 6–4H
Form 6–4G—Summons
Form 6–4H—Warrant to Arrest
PART 3—AMENDMENTS RELATING TO CHILDREN, YOUTH AND FAMILIES ACT 2005
15Rules 3A.01 and 3A.02 substituted
3A.01Application of Order and definitions
3A.02Commencement of appeal on a question of law
16Notice of appeal
17Leave to appeal
18Stay
19Report
20Order 3B substituted
ORDER 3B
APPEALS UNDER THE CHILDREN, YOUTH AND FAMILIES ACT 2005 OTHER THAN APPEALS ON A QUESTION OF LAW
3B.01Application of Order
3B.02Notice of appeal and undertaking to proceed with
appeal3B.03Legal practitioner to notify that he or she acts
3B.04Prothonotary to fix hearing
3B.05Recording of decision on appeal under section 424
3B.06Appeal by DPP against sentence
3B.07Appeal by DPP under section 429A—failure to fulfil undertaking
3B.08Abandonment of appeal
3B.09Order striking out appeal
3B.10Application to set aside order striking out appeal for failure to appear
3B.11Original depositions, exhibits etc.
3B.12Prothonotary to notify determination
3B.13Certificate of conviction
3B.14Fine and imprisonment in default—fine paid to be retained pending appeal
3B.15Entitlement to hearing when restitution order or compensation order made
3B.16Property subject to restitution order or compensation order
21Forms for Order 3B
Form 6–3BA—Notice of Appeal and Undertaking to
ProceedForm 6–3BB—Notice of Supreme Court's Decision on
AppealForm 6–3BC—Notice of Appeal by DPP Against Sentence Imposed by Children's Court
Form 6–3BD—Notice of Appeal by DPP Under section 429A of Children, Youth and Families Act 2005—Failure to Fulfil Undertaking
Form 6–3BE—Notice of Abandonment of Appeal under section 430C of the Children, Youth and Families Act 2005
Form 6–3BF—Written Notice of Abandonment of Appeal—Conviction Only—section 430C(3) of the Children, Youth and Families Act 2005
Form 6–3BG—Order Striking Out Appeal
Form 6–3BH—Application to Set Aside Order Striking
Out Appeal for Failure to AppearForm 6–3BI—Notification of Result of Appeal under Division 1 or 2 of Part 5.4 of Chapter 5 of the Children, Youth and Families act 2005
PART 4—AMENDMENT OF CHAPTER I
22Application of Part 3 of Order 58 of Chapter I
23Application of Part 5 of Order 58 of Chapter I
24Abandonment of appeal
25Recording of decision on appeal under section 424
26Forms for Order 58 amended
═══════════════
ENDNOTES
STATUTORY RULES 2010
S.R. No. 55/2010
Supreme Court Act 1986
Children, Youth and Families Act 2005
Criminal Procedure Act 2009
Supreme Court (Criminal Procedure Amendment) Rules 2010
The Judges of the Supreme Court make the following Rules:
PART 1—PRELIMINARY
1Object
The object of these Rules is—
(a)to further amend the Rules of the Supreme Court as a consequence of the enactment of the Criminal Procedure Act 2009 and the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009; and
(b)to make other miscellaneous amendments.
2Authorising provisions
These Rules are made under section 25 of the Supreme Court Act 1986, the Criminal Procedure Act 2009, the Children, Youth and Families Act 2005 and all other enabling powers.
3Commencement
These Rules come into operation on 1 July 2010.
4Principal Rules
In these Rules, the Supreme Court (Criminal Procedure) Rules 2008[1] are called the Principal Rules.
__________________
PART 2—MISCELLANEOUS AMENDMENTS RELATING TO CRIMINAL PROCEDURE
5New Rule 1.18
After Rule 1.17 of the Principal Rules insert—
"1.18 General applications
If a party to a criminal proceeding intends to make an application and there is no form prescribed by any Rules or by or under any Act for such an application, a general application in Form 6–1C may be used with such modification as is necessary.".
6Certificate of conviction
In Rule 2.35 of the Principal Rules for "21" (where twice occurring) substitute "35".
7Witnesses before Court of Appeal—section 318
For Rule 2.44(4) of the Principal Rules substitute—
"(4)The oath or affirmation to be administered to any witness whose evidence is to be tendered under section 318 of the Act shall be in accordance with the Evidence Act 2008, unless the Court otherwise permits or directs.".
8Duties of prison officers
In Rule 2.53(1) of the Principal Rules—
(a)paragraph (a) is revoked;
(b)in paragraph (b) omit "on any other ground";
(c)in paragraph (c)—
(i)omit "to appeal or";
(ii)omit "notice of appeal or".
9Order 3B re-enacted as Part 9 of Order 2
In Order 2 of the Principal Rules after Part 8 insert—
"PART 9—OTHER APPLICATIONS TO COURT OF APPEAL
2.55Application of Part
This Part applies if—
(a)a party seeks to make an application to the Court of Appeal that is not otherwise dealt with by these Rules; and
(b)the Rules make no provision for such application.
2.56Application by summons
(1)An application under this Part shall be made by summons for directions returnable before the Registrar supported by affidavit.
(2)The application is taken to be made when the summons is filed.
2.57Service
The applicant shall serve the summons for directions and any accompanying affidavit on each respondent—
(a)within three days of filing the application; or
(b)within such other time as the Registrar by order provides.
2.58Directions hearing
(1)At the directions hearing, the Registrar may give any directions for the conduct of the application which the Registrar thinks conducive to its effective, prompt and economical determination.
(2)The Registrar may make such order for costs as he or she thinks fit in relation to the exercise of any power conferred upon him or her under this Part.
2.59Court of Appeal may set aside or give directions
The Court of Appeal, on application by any party to the application, may—
(a)set aside or vary any direction given or order made by the Registrar; and
(b)give directions in relation to the application.
10Definitions—Order 4
In Rule 4.01 of the Principal Rules for the definition of CTLD substitute—
"CTLD means the person or persons nominated by the Chief Justice or his or her nominee as the person or persons responsible for criminal listings in the Supreme Court;".
11Case conference
In the Schedule to Rule 4.08 of the Principal Rules, after clause 25 insert—
"26.Does the accused intend to make application for any summary charges to be transferred from the Magistrates' Court to be heard pursuant to section 243 of the Act?
27.Has consideration been given to how any related summary offences are to be dealt with following trial?".
12New Rule 4.14
After Rule 4.13 of the Principal Rules insert—
"4.14 Summons or warrant when direct indictment filed
(1)A summons under section 174(2)(a) of the Act must be in Form 6–4G.
(2)A warrant to arrest under section 174(2)(b) of the Act must be in Form 6–4H.
(3)An application for a summons or warrant to arrest under section 174(1) of the Act must be made at the time of filing the direct indictment to which the application relates, unless the circumstances of the case require a later application.
(4)A summons or warrant to arrest under section 174(2)(a) or (b) of the Act must be issued by a Judge of the Court.".
13New Form 6–1C
After Form 6–1B of the Principal Rules insert—
"__________________
Rule 1.18
FORM 6–1C
IN THE SUPREME COURT OF VICTORIA
AT
IN THE MATTER OF:
GENERAL APPLICATION
TO the Prothonotary:
AND TO the respondent: [name] of [address]
I wish to apply for the following order:
This application is made on the grounds that: [insert as applicable]
This application is *by consent/*contested.
Date:
[Signature of Applicant/
Applicant's Legal Practitioner]
LISTING OF APPLICATION
This application is listed for hearing before the Supreme Court at [place] at [time] a.m./p.m. on [date].
Date:
Prothonotary
*delete if not applicable
__________________".
14New Forms 6–4G and 6–4H
After Form 6–4F of the Principal Rules insert—
"Rule 4.14
FORM 6–4G
IN THE SUPREME COURT OF VICTORIA
AT
INDICTMENT No.:
SUMMONS
To the accused:
Address of accused:
Date of birth of accused:
o Male o Female
Details of case
A direct indictment has been filed against you in relation to the following charges:
A copy of the indictment is attached to this summons.
The indictment was filed at the Supreme Court on [date].
Date:
[Signature of DPP/
Crown Prosecutor]
Listing of case
You must attend at the Supreme Court at [place] on [date] at [time] a.m./p.m.
Address of Court:
Court contact number:
Details about this summons
Issued at [place]
On [date]
[Signature of Judge]
__________________
Rule 4.14
FORM 6–4H
IN THE SUPREME COURT OF VICTORIA
AT
INDICTMENT No.:
WARRANT TO ARREST
To the accused:
Address of accused:
Date of birth of accused:
o Male o Female
Details of case
A direct indictment has been filed against you in relation to the following charges:
A copy of the indictment is attached to this warrant.
The indictment was filed at the Supreme Court on [date].
Date:
[Signature of DPP/
Crown Prosecutor]
Warrant to arrest
To all members of the police force or [insert name of member of the police force to whom warrant is directed or name of any other person authorised by law to execute a warrant to arrest].
You are authorised to break, enter and search any place where the person named in this warrant is suspected to be, to arrest that person and bring him or her before the Court as soon as practicable to be dealt with according to law.
I am satisfied by the evidence before me that a warrant should be issued on the following grounds:
*it is probable the person will not answer a summons
*the person has absconded or is likely to abscond
*the person is avoiding the service of a summons
*the warrant is *required/*authorised by another Act/*other good cause
Details about this warrant
Issued at [place]
On [date]
*delete if not applicable
[Signature of Judge]
__________________".
__________________
PART 3—AMENDMENTS RELATING TO CHILDREN, YOUTH AND FAMILIES ACT 2005
15Rules 3A.01 and 3A.02 substituted
For Rules 3A.01 and 3A.02 of the Principal Rules substitute—
"3A.01 Application of Order and definitions
(1)This Order applies to an appeal or an application for leave to appeal on a question of law—
(a)under Part 6.2 of Chapter 6 of the Criminal Procedure Act 2009;
(b)under Division 5 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005; or
(c)to which, by another Act, Part 6.2 of Chapter 6 of the Criminal Procedure Act 2009 or Division 5 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 applies.
(2)In this Order, unless the context or subject matter otherwise requires, the Act means the Criminal Procedure Act 2009.
3A.02Commencement of appeal on a question of law
An appeal to which this Order applies is commenced by filing a notice of appeal in the Trial Division.
Note
Section 272(3) of the Criminal Procedure Act 2009 and section 430P of the Children, Youth and Families Act 2005 require the notice of appeal to be filed within 28 days after the day on which the order complained of was made.".
16Notice of appeal
(1)In Rule 3A.03 of the Principal Rules—
(a)in paragraph (1) after "the Act" insert "or section 430P of the Children, Youth and Families Act 2005";
(b)in paragraph (2)(a) for "Magistrates' Court" substitute "court".
(2)For Rule 3A.03(3) of the Principal Rules substitute—
"(3)The requirements under paragraph (2) are in addition to the requirements of—
(a)section 272(4) and (5) of the Act, in the case of an appeal or application for leave to appeal under Part 6.2 of Chapter 6 of the Act; and
(b)section 430P(4) and (5) of the Children, Youth and Families Act 2005, in the case of an appeal or application for leave to appeal under Division 5 of Part 5.4 of Chapter 5 of that Act.".
17Leave to appeal
In the note at the foot of Rule 3A.06 of the Principal Rules, for "sets" substitute "and section 430P(7) of the Children, Youth and Families Act 2005 set".
18Stay
In the note at the foot of Rule 3A.07 of the Principal Rules, after "Act" insert "and section 430P(6) and (11) of the Children, Youth and Families Act 2005".
19Report
In Rule 3A.09 of the Principal Rules for "Magistrates' Court" substitute "court".
20Order 3B substituted
For Order 3B of the Principal Rules substitute—
"ORDER 3B
APPEALS UNDER THE CHILDREN, YOUTH AND FAMILIES ACT 2005 OTHER THAN APPEALS ON A QUESTION OF LAW
3B.01Application of Order
This Order applies to appeals to the Trial Division under Divisions 1, 2 and 2A of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 from the Children's Court constituted by the President of that Court.
3B.02Notice of appeal and undertaking to proceed with appeal
A notice of appeal under section 425 of the Children, Youth and Families Act 2005 and undertaking to proceed with the appeal shall be in Form 6–3BA.
Note
Section 425 of the Children, Youth and Families Act 2005 provides for the notice of appeal to be filed in the Children's Court within 28 days after the Children's Court imposes the sentence and requires service of a copy on the respondent within 7 days of being filed.
3B.03Legal practitioner to notify that he or she 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 shall without delay notify the Prothonotary in writing that he or she so acts and furnish 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.
3B.04Prothonotary to fix hearing
(1)The Prothonotary shall—
(a)fix the date and place for hearing of the appeal; and
(b)notify in writing each party and each legal practitioner who has given notice under Rule 3B.03 of the date and place of hearing a reasonable time before the hearing.
(2)Notification in writing under paragraph (1)(b) may be—
(a)by pre-paid ordinary mail; or
(b)where a legal practitioner for a party has facilities for the reception of documents in a document exchange, by delivering the notification into those facilities.
3B.05Recording of decision on appeal under section 424
(1)When an appeal under section 424 of the Children, Youth and Families Act 2005 is determined—
(a)the Associate to the Judge of the Court who heard the appeal shall record the sentence or particulars of the decision, in quadruplicate, in Form 6–3BB; and
(b)that record shall constitute the final record of the order of the Court on the appeal.
(2)If a number of appeals is heard together, it is not necessary to record the sentence or particulars required by paragraph (1) on separate forms for each appeal but it is necessary for the sentence or such particulars in respect of each charge to be recorded in full.
(3)The Associate to the Judge of the Court shall deliver—
(a)three copies of the record of the order of the Court to the Prothonotary who shall—
(i)file one copy;
(ii)send one copy to the registrar of the Children's Court at the venue of the court from which the appeal was brought; and
(iii)if the appellant is required to serve a term of detention, deliver one copy to the person responsible for keeping the appellant; and
(b)if the appellant is required to serve a term of detention, one copy of the record of the order of the Court to the prison officer responsible for conveying the appellant to the place of detention.
(4)The record shall be sufficient to authorise the keeping of the appellant for the period and in the manner set out in the record.
3B.06Appeal by DPP against sentence
A notice of appeal under section 428 of the Children, Youth and Families Act 2005 shall be in Form 6–3BC.
Note
Section 428 of the Children, Youth and Families Act 2005 provides for the notice of appeal to be filed in the Children's Court within 28 days after the Children's Court imposes the sentence and requires service of a copy on the respondent within 7 days of being filed.
3B.07Appeal by DPP under section 429A—failure to fulfil undertaking
A notice of appeal under section 429B of the Children, Youth and Families Act 2005 shall be in Form 6–3BD.
Note
Section 429B(2) of the Children, Youth and Families Act 2005 provides for the notice of appeal to be served personally on the respondent within 14 days after the notice is filed in the Children's Court.
3B.08Abandonment of appeal
(1)A notice of abandonment of appeal shall be in Form 6–3BE.
(2)Written notice under section 430C(3) of the Children, Youth and Families Act 2005 shall be in Form 6–3BF.
(3)When a notice of abandonment of appeal is filed, the Prothonotary shall make an order striking out the appeal.
3B.09Order striking out appeal
(1)An order under section 430C or 430D of the Children, Youth and Families Act 2005 striking out an appeal shall be in Form 6–3BG.
(2)The Prothonotary shall cause a copy of the order to be forwarded to the registrar of the Children's Court at the venue of the court from which the appeal was brought.
3B.10Application to set aside order striking out appeal for failure to appear
An application to set aside an order striking out an appeal because of the failure of the appellant to appear may be in Form 6–3BH.
3B.11Original depositions, exhibits etc.
The Court may require the recording officer of the Children's Court to provide to the Court—
(a)the original depositions of witnesses examined before the Children's Court;
(b)any exhibit retained by the Children's Court;
(c)the indictment or other written process against the appellant;
(d)an abstract or copy of the whole or part of the indictment;
(e)any plea filed in the Children's Court.
3B.12Prothonotary to notify determination
(1)When an appeal to which this Order applies is determined by the Court, the Prothonotary shall give notice in Form 6–3BI to—
(a)the appellant;
(b)the DPP or the Director of Public Prosecutions of the Commonwealth (as the case requires);
(c)the superintendant of the remand centre, youth residential centre, youth justice centre or prison in which the appellant is in custody;
(d)the Secretary to the Department of Justice; and
(e)the relevant officer of the Children's Court.
(2)The Prothonotary shall also notify the relevant officer of the Children's Court of any additional orders or directions made or given by the Court in relation to the appeal.
3B.13Certificate of conviction
(1)The recording officer of the Children's Court may not issue a certificate of conviction until—
(a)35 days after the date of conviction; or
(b)if the recording officer receives notice from the Prothonotary that a notice of appeal or of application for leave to appeal has been filed, the determination of the appeal or dismissal of the application.
(2)A person who seeks a certificate of conviction may obtain a certificate from the Prothonotary stating that no appeal or application for leave to appeal is pending.
(3)A certificate under paragraph (2) may not be given until 35 days after the date of conviction.
3B.14Fine and imprisonment in default—fine paid to be retained pending appeal
(1)If a person has been convicted and sentenced to pay a fine and in default of payment sentenced to imprisonment, the person authorised to receive the fine shall retain it until determination of any related appeal.
(2)Subject to any order of the Court, a person who has paid a fine in accordance with a sentence shall, if the appeal is successful, be entitled to the return of the fine paid.
(3)A person who remains in custody in default of payment of a fine shall be taken to be a person sentenced to imprisonment for the purposes of the Children, Youth and Families Act 2005 and this Order.
3B.15Entitlement to hearing when restitution order or compensation order made
If an order referred to in section 430Z(1) of the Children, Youth and Families Act 2005 was made at a trial—
(a)a person against whom the order was made;
(b)a person in whose favour the order was made; and
(c)with the leave of the Court, any other person—
may be heard by the Court before any direction under section 430Z(2) of that Act is given.
3B.16Property subject to restitution order or compensation order
For the purposes of section 430Z(5) of the Children, Youth and Families Act 2005, the Court may give any direction considered proper—
(a)for securing the safe custody during the appeal period of property or of a money sum the subject of a restitution order or compensation order; or
(b)as to the production of any such property or money sum at an appeal.
__________________".
21Forms for Order 3B
After Form 6–3B of the Principal Rules insert—
"Rule 3B.02
FORM 6–3BA
NOTICE OF APPEAL AND UNDERTAKING TO PROCEED
TO the Registrar of the Children's Court at:
TO the Prothonotary at:
AND TO the respondent [name]:
I WISH TO APPEAL against a decision of the Children's Court at [place] on [date].
The details of the charges and sentences/order imposed were:
Charge
SENTENCE/ORDER
I am appealing against:
*conviction and sentence
*sentence alone
The grounds of the appeal are:
[state specifically and concisely and not merely in general terms the grounds of the application]
Date:
[Signature of Appellant]
* Delete if inapplicable.
PARTICULARS
1. Name and address of the appellant:
2. Name and address of the respondent:
3. Offence for which convicted and in relation to which it is sought to appeal:
4. Convicted at: [place and court]
5. Sentencing Judge:
6. Date of conviction:
7. Sentence:
8. Date of sentence:
9. Name and address of legal practitioner who represented appellant at trial:
10. Name of counsel (if any) who represented appellant at trial:
11. State whether you wish to—
(a) personally attend the hearing of this proceeding; or
(b) appear by audio visual link at the hearing of this proceeding.
UNDERTAKING TO PROCEED WITH APPEAL
I, [name]
of [address] undertake:
(a) to appear at the Supreme Court at a place and on a day to be fixed by the Court and to appear for the duration of the appeal; and
(b) to notify the Prothonotary in writing without delay of any change of address from that appearing in the notice of appeal.
Date:
[Signature of appellant]
__________________
Rule 3B.05
FORM 6–3BB
NOTICE OF SUPREME COURT'S DECISION ON APPEAL
TO the Prothonotary at:
TO the Registrar of the Children's Court at:
Regarding an appeal against the order(s) recorded at the Children's Court at [place] on [date] [specify order(s) the subject of the appeal]
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 Justice [name of Judge] on [date].
Associate
__________________
Rule 3B.06
FORM 6–3BC
NOTICE OF APPEAL BY DPP AGAINST SENTENCE IMPOSED BY CHILDREN'S COURT
TO: the Registrar of the Children's Court:
AND TO: the respondent
I, [full name], the DPP wish to appeal under section 427 of the Children, Youth and Families Act 2005 against a sentence imposed by the Children's Court in a summary proceeding in the Criminal Division of that Court.
TAKE NOTICE that I apply to the Trial Division of the Supreme Court to appeal against the sentence imposed on [name of offender] of [address of offender] on the ground(s) set out below:
The ground(s) of my appeal are: [state the general grounds of the appeal]
I am satisfied that the appeal should be brought in the public interest.
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. Trial Judge:
5. Date of conviction:
6. Sentence:
7. Date of sentence:
8. Name and address of legal practitioner who represented offender at trial:
9. Name of counsel (if any) who represented offender at trial:
__________________
Rule 3B.07
FORM 6–3BD
NOTICE OF APPEAL BY DPP UNDER SECTION 429A OF CHILDREN, YOUTH AND FAMILIES ACT 2005—FAILURE TO FULFIL UNDERTAKING
TO: the Registrar of the Children's Court:
AND TO: the respondent
I, [full name], the DPP wish to appeal under section 429A of the Children, Youth and Families Act 2005 against the sentence imposed by the Children's Court on [name of offender] of [address].
TAKE NOTICE that I apply to the Supreme Court on the ground(s) set out below:
The ground(s) of my appeal are that the offender was convicted of an indictable offence that was heard and determined summarily by the Children's Court and received a less severe sentence because of an undertaking given to assist law enforcement authorities after sentence and that person has failed to fulfil that undertaking.
[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. Sentencing Judge:
5. Date of conviction:
6. Sentence:
7. Date of sentence:
8. Name and address of legal practitioner who represented offender at trial:
9. Name of counsel (if any) who represented offender at trial:
Date:
[Signed personally by DPP]
__________________
Rule 3B.08(1)
FORM 6–3BE
NOTICE OF ABANDONMENT OF APPEAL UNDER SECTION 430C OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
IN THE SUPREME COURT OF VICTORIA
AT
TO the Prothonotary:
AND TO the respondent [name] of [address]:
I wish to abandon my appeal against *conviction/*sentence in the Children's Court at [place] on [date].
I acknowledge that the *conviction/*sentence appealed from will take effect immediately upon lodging this form.
PARTICULARS
1. Name and address of the appellant:
2. Name and address of the respondent:
3. Offence for which convicted and in relation to which the appeal relates:
4. Convicted at: [place and court]
5. Sentencing Judge:
6. Date of *conviction/*sentence:
7. Sentence:
8. Children's Court reference number:
Date:
[Signature of appellant]
* Delete if inapplicable.
__________________
Rule 3B.08(2)
FORM 6–3BF
WRITTEN NOTICE OF ABANDONMENT OF APPEAL—CONVICTION ONLY—SECTION 430C(3) OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
IN THE SUPREME COURT OF VICTORIA
AT
TO the Prothonotary:
AND TO the respondent [name] of [address]
An appeal was lodged against a decision of the Children's Court at [place] on [date].
I abandon my appeal against conviction. I wish to proceed only with my appeal against sentence.
PARTICULARS
1. Name and address of the appellant:
2. Name and address of the respondent:
3. Offence for which convicted and in relation to which the appeal relates:
4. Convicted at: [place and court]
5. Sentencing Judge:
6. Date of order:
7. Sentence:
8. Children's Court reference number:
Date:
[Signature of appellant]
* Delete if inapplicable.
__________________
Rule 3B.09(1)
FORM 6–3BG
IN THE SUPREME COURT OF VICTORIA
AT
IN THE MATTER OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
AND
IN THE MATTER OF AN APPEAL BY [name of appellant]
ORDER STRIKING OUT APPEAL
*JUDGE//*PROTHONOTARY
DATE MADE:
ORIGINATING PROCESS:
ATTENDANCE:
OTHER MATTERS:
The Appellant
*failed to appear at the time listed for the hearing of the appeal
OR
*abandoned the appeal in accordance with section 430C of the Children, Youth and Families Act 2005.
THE COURT ORDERS THAT the appeal be struck out.
[When a custodial order was imposed in the Children's Court—the Appellant *has/*has not been returned to custody]
Date:
[Signature of*Judge of the Court/*Prothonotary]
* Delete if not applicable.
A copy of this order is to be provided to:
The Children's Court
The respondent or to the respondent's legal practitioner.
__________________
Rule 3B.10
FORM 6–3BH
APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR
Appeal No.:
TO The Prothonotary
AND TO the respondent [name] of [address]
An appeal was lodged against a decision of the Children's Court at [place] on [date]
The Children's Court reference number is:
I APPLY for an order to set aside the order striking out my appeal for my failure to appear made by the Supreme Court on [insert date of order].
The application is made on the ground that my failure to appear was not due to fault or neglect on my part.
[Give details of reasons for non-appearance]
Date:
[Signature of Appellant]
Notice of this application must be served on the respondent a reasonable time before making of the application and in the same way as a notice of appeal—section 430D(4) and (5) of the Children, Youth and Families Act 2005.
If the Supreme Court grants the application it must order the reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require the appellant to give a further undertaking to prosecute the appeal.
––––––––––––––––––––––––––––––––––––––––––––––––
Listing of application:
This application is listed for hearing before the Supreme Court at [place] at [time] a.m./p.m. on [date].
Date:
Prothonotary
*delete if not applicable
__________________
Rule 3B.12
FORM 6–3BI
NOTIFICATION OF RESULT OF APPEAL UNDER DIVISION 1 OR 2 OF PART 5.4 OF CHAPTER 5 OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
In the case of R v. [name of appellant]
TAKE NOTICE that the Trial Division of the Supreme Court has considered the appeal under *section 424/*section 427 of the Children, Youth And Families Act 2005 and has decided [complete appropriately].
Date:
[Signed]
Prothonotary
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* Delete if not applicable
__________________".
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PART 4—AMENDMENT OF CHAPTER I
22Application of Part 3 of Order 58 of Chapter I
In Rule 58.06(b) of the Supreme Court (General Civil Procedure) Rules 2005[2] omit "or 427".
23Application of Part 5 of Order 58 of Chapter I
(1)In the heading to Part 5 of Order 58 of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005, for "SECTIONS 328 AND 424" substitute "SECTION 328".
(2)In Rule 58.22 of the Supreme Court (General Civil Procedure) Rules 2005, omit "or 424".
24Abandonment of appeal
(1)Rule 58.27(1) of the Supreme Court (General Civil Procedure) Rules 2005 is revoked.
(2)In Rule 58.27(2) of the Supreme Court (General Civil Procedure) Rules 2005 omit "other".
25Recording of decision on appeal under section 424
Rule 58.29 of the Supreme Court (General Civil Procedure) Rules 2005 is revoked.
26Forms for Order 58 amended
In the Supreme Court (General Civil Procedure) Rules 2005—
(a)in Form 58B—
(i)omit "or section 424";
(ii)for "be present" (where twice occurring) substitute "appear";
(iii)omit the words and expression commencing "[Qualification of witness" and ending "Children, Youth and Families Act 2005]";
(b)Form 58C is revoked;
(c)in Form 58D—
(i)omit "[Other than when sentence of detention imposed]";
(ii)for "*Date of charge(s):" substitute "*Date of application/order to which appeal relates:";
(iii)for "*Nature of offence" substitute "Nature of application/order (e.g. protection order, irreconcilable differences application, therapeutic treatment order etc.)";
(d)in Form 58G omit "—section 89 of the Magistrates' Court Act 1989";
(e)in Form 58H—
(i)omit "—section 89A(6) of the Magistrates' Court Act 1989";
(ii)omit "—section 89A(4)(a) of the Magistrates' Court Act 1989";
(iii)omit "—section 89A(4)(b) of the Magistrates' Court Act 1989";
(iv)omit "—section 89A(5)(a) and (b) of the Magistrates' Court Act 1989";
(v)omit "—section 89A(5)(c) of the Magistrates' Court Act 1989";
(f)in Form 58J omit "—section 89A(3) of the Magistrates' Court Act 1989".
Dated: 24 June 2010
M. L. WARREN, C.J.
CHRISTOPHER MAXWELL, P.
PETER BUCHANAN, J.A.
GEOFFREY NETTLE, J.A.
DAVID ASHLEY, J.A.
MARCIA NEAVE, J.A.
PHILIP MANDIE, J.A.
BERNARD D. BONGIORNO, J.A.
D. L. HARPER, J.A.
H. R. HANSEN, J.
D. J. HABERSBERGER, J.
R. S. OSBORN, J.
STEPHEN KAYE, J.
ELIZABETH HOLLINGWORTH, J.
KEVIN H. BELL, J.
ANTHONY CAVANOUGH, J.
TONY PAGONE, J.
JAMES JUDD, J.
EMILIOS KYROU, J.
DAVID F. R. BEACH, J.
JENNIFER DAVIES, J.
KARIN EMERTON, J.
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ENDNOTES
[1] Rule 4: S.R. No. 12/2008 as amended by S.R. Nos 100/2008, 118/2008, 150/2008, 98/2009, 99/2009, 132/2009, 146/2009 and 23/2010.
[2] Rule 22: S.R. No. 148/2005. Reprint No. 2 incorporating amendments as at 1 November 2009. Reprinted to S.R. No. 109/2009 and subsequently amended by S.R. Nos 60/2009, 97/2009, 132/2009, 144/2009, 146/2009, 22/2010 and 23/2010.
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