Untitled document

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

No. 68 of 2009

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Criminal Procedure Act 2009

3Definitions

4Notice to accompany summons or warrant

5Personal service of summons

6When an indictable offence may be heard and determined summarily

7Division heading substituted

8Admissibility of evidence in absence of accused

9Rules with respect to statements

10Contents of hand-up brief

11Rules with respect to recordings

12Contents of plea brief

13Committal mention hearing

14Recording of evidence

15On committing accused for trial

16Evidence taken after committal

17Special mention hearing

18Transfer of charges to Magistrates' Court

19Powers of court at directions hearing

20Order for legal representation for accused

21Manner of giving evidence

22Determination of appeal

23Abandonment of appeal

24Failure to appear on appeal

25Appeal against conviction

26Determination of application for leave to appeal

27New section 284A inserted

284ADetermination of application for leave to appeal under section 283

28Determination of Crown appeal

29Crown appeal against sentence

30Interlocutory appeals

31DPP may refer point of law to Court of Appeal

32Stay of certain orders during appeal period

33Extension of time for filing or serving notice of appeal or
notice of application for leave to appeal

34Powers of single Judge of Appeal

35Bail following appeal

36Petition for mercy

37New section 336A inserted

336AVictim who is a witness entitled to be present in court

38Court may act on application or on own motion

39Service of documents

40Notice to appear—costs

41Issue of warrant to arrest

42Transfer of charge to court with jurisdiction

43Regulations

44New section 14A in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

45New section 24AA in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

46Joint committals—Magistrates' Court Act 1989

47Commencement of proceedings in Children's Court

48Joint committals—Children, Youth and Families Act 2005

49Statute law revision

50New Part 8.2 inserted

Part 8.2—Witnesses

Division 1—Guiding principles

338Guiding principles

Division 2—Evidence concerning complainant

339Application of Division

340Definition

341Prohibition on questions and evidence concerning complainant's chastity

342Restriction on questions and evidence concerning complainant's sexual activities

343Admissibility of sexual history evidence

344Application for leave

345Application for leave out of time

346Contents of application for leave

347Waiver of requirement to apply for leave in writing

348Hearing of application for leave

349Determination of application for leave during summary hearing, committal proceeding or trial

350Determination of application for leave during
sentencing hearing

351Court must state reasons if leave granted

352Limitation on sexual history evidence

Division 3—Cross-examination of protected witnesses

353Application of Division

354Definitions

355Court may declare witness to be protected witness

356Protected witness not to be cross-examined by
accused in person

357When accused is not legally represented

358Jury warning concerning legal representation for
cross-examination

Division 4—Alternative arrangements for giving evidence

359Application of Division

360Alternative arrangements for giving evidence

361Jury warning concerning alternative arrangements

362Evidence given by closed-circuit television or other facilities

363When court must direct use of closed-circuit television or other facilities for complainant

364When court must direct use of screens for complainant

365When court must direct presence of support person
for complainant

Division 5—Use of recorded evidence-in-chief of children
and cognitively impaired witnesses in sexual offence and assault matters

366Application of this Division

367Use of recorded evidence-in-chief

368Admissibility of recorded evidence-in-chief

Division 6—Procedure and rules for children and
cognitively impaired complainants

369Application of Division

370Special hearing for pre-recording evidence

371Time limits for special hearing

372Conduct of special hearing

373Form in which recording of special hearing is to be tendered

374Admissibility of evidence from special hearing

375Jury warning as to recording of special hearing

376Cross-examination of complainant

377Exception to hearsay rule—previous representations made by complainant under 18 years

Division 7—Admission of recorded evidence of
complainant in sexual offence matters

378Application of Division

379Admissibility of recording of complainant's evidence

380Prosecution to give notice of intention to tender recording

381Admission of recording of evidence of complainant

382Jury warning as to recorded evidence of complainant

383Attendance of complainant

384Direct testimony in addition to recording

385Cross-examination of complainant

386Form in which recording of complainant's evidence
is to be tendered

387Exception to hearsay rule

Division 8—Miscellaneous

388Evidence of specialised knowledge in certain cases

389Audiovisual link evidence from overseas in certain proceedings

51Amendment of cross-references consequential on renumbering

52Renumbering of sections 338–361 consequential on insertion
of new Part 8.2

53New section 414 inserted

414Acknowledgment of false statement

54Renumbering of sections 362 onwards

55New Chapter 10 inserted

Chapter 10—Savings and Transitional Provisions

439Savings and transitional provisions

56Substitution of Schedule 2

SCHEDULE 2—Indictable Offences that may be Heard
and Determined Summarily

1Common law

2Aboriginal Heritage Act 2006

3Assisted Reproductive Treatment Act 2008

4Crimes Act 1958

5Dangerous Goods Act 1985

6Drugs, Poisons and Controlled Substances Act 1981

7Electricity Industry Act 2000

8Electricity Safety Act 1998

9Environment Protection Act 1970

10Equipment (Public Safety) Act 1994

11Firearms Act 1996

12Food Act 1984

13Gas Industry Act 2001

14Gas Safety Act 1997

15Health Records Act 2001

16Heritage Act 1995

17Information Privacy Act 2000

18Juries Act 2000

19Major Sporting Events Act 2009

20Occupational Health and Safety Act 2004

21Police Regulation Act 1958

22Pollution of Waters by Oil and Noxious Substances Act 1986

23Prohibition of Human Cloning for Reproduction Act 2008

24Prostitution Control Act 1994

25Rail Safety Act 2006

26Research Involving Human Embryos Act 2008

27Road Management Act 2004

28Tobacco Act 1987

29Transport Act 1983

30Water Act 1989

31Water Industry Act 1994

57Amendment of Schedule 3

58New Schedule 4 inserted

SCHEDULE 4—Savings and Transitional Provisions

1Definitions

2General transitional provision

3Renumbering

4References to superseded provisions

5Commencing a criminal proceeding

6Summary procedure

7Committal proceeding

8Trial

9New trial or further hearing

10Appeals

11Petitions for mercy

12Witnesses

13Costs

14Power to amend when there is a defect or error

15Transfer of charge to court with jurisdiction

16Perjury

17Transitional regulations

Part 3—Amendment of Children, Youth and Families Act 2005

59Definitions

60Procedure on appeals to County Court or Supreme Court

61DPP reference

62Children to be proceeded against by summons

63Child to be brought before Court or bail justice

64Referral to Secretary

65Adjournment of criminal proceeding when therapeutic
treatment order made

66Division heading amended

67Section heading amended

68Part 5.3 amended

69Substitution of Part 5.4

Part 5.4—Appeals

Division 1—Appeal by offender to the County Court or
Trial Division of the Supreme Court

424Right of appeal

425How appeal is commenced

426Determination of appeal

Division 2—Appeal by DPP against sentence

427DPP's right of appeal against sentence

428How appeal is commenced

429Determination of DPP appeal

Division 3—Procedure on appeals from Children's Court

430Late notice of appeal deemed to be application for
leave to appeal

430AStay of order

430BBail pending appeal

430CAbandonment of appeal

430DAppellant's failure to appear

430ERespondent's failure to appear on appeal by DPP

430FOne notice of appeal for 2 or more sentences

430GAppeal to County Court or Trial Division of Supreme Court authorised by other Acts

Division 4—Reports

430HApplication of Division

Subdivision 1—Pre-sentence reports

430ICourt may order pre-sentence report

430JNotification of requirement to submit pre‑sentence
report

430KPre-sentence report to be filed with court

430LAttendance at appellate court of author of pre‑sentence report

430MDisputed pre-sentence report

Subdivision 2—Group conference reports

430NGroup conference report

430OGroup conference report to be filed with court

Division 5—Appeal to Supreme Court on a question of law

430PAppeal to Supreme Court on a question of law

430QAppeal on question of law precludes other appeals

Division 6—Appeal to Court of Appeal and referral of
point of law to Court of Appeal

430RRight of appeal against sentence of detention imposed
on appeal from Children's Court

430SHow appeal is commenced

430TDetermination of appeal

430UOrders etc. on successful appeal

430VPowers and procedure

430WDPP may refer point of law to Court of Appeal

Division 7—Status of sentence and orders during appeal period

430XSentence not stayed during appeal period

430YBail pending appeal

430ZStay of certain orders during appeal period

430ZAExecution of order for forfeiture or destruction of property

Division 8—Miscellaneous

430ZBAppeal by child under 15 years

430ZCParent may enter into bail

430ZDAppeals to be heard in open court

430ZELegal representation

430ZFInterpreters

430ZGExplanation of and reasons for orders

Division 9—Costs on appeal

430ZHNo costs on appeal or new hearing

70Establishment of corrective services

71Power of arrest in youth justice centre

72Assignment of magistrates

73Jurisdiction of Criminal Division

74Koori Court (Criminal Division)

75Neighbourhood Justice Division

76Procedural guidelines

77Explanation of and reasons for orders

78Powers of Children's Court

79Process

80Pre-sentence reports

81Witness or other person who has previously appeared in Children's Court

82Transfer of proceedings

83Powers of Supreme Court or County Court

84Rules

85Supreme Court—limitation of jurisdiction

86New sections 609 and 610 inserted

609Transitional provision—Criminal Procedure
Act 2009

610Transitional provision—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

87Amendment of Schedules

Part 4—Amendment of Public Prosecutions
Act 1994

88Definitions

89Chief Crown Prosecutor is responsible to Director

90Functions of Director

91Power to discontinue criminal proceedings

92Delegation

93Functions of Crown Prosecutors

94Functions of Solicitor for Public Prosecutions

95Outcome of trial cannot be challenged on ground relating to special decision

96Substitution of section 49

49Supreme Court—limitation of jurisdiction

Part 5—Consequential and Other Amendments
to Other Acts

97Consequential and other amendments

Part 6—Repeal

98Repeal of Act

__________________

SCHEDULE—Consequential and Other Amendments

1Aboriginal Heritage Act 2006

2Aboriginal Lands Act 1970

3Accident Compensation Act 1985

4Accident Towing Services Act 2007

5Administrative Law Act 1978

6Agricultural and Veterinary Chemicals (Victoria)
Act 1994

7Alcoholics and Drug-dependent Persons Act 1968

8Appeal Costs Act 1998

9Australian Crime Commission (State Provisions)
Act 2003

10Australian Grands Prix Act 1994

11Bail Act 1977

12Biological Control Act 1986

13Building Act 1993

14Bus Safety Act 2009

15Business Franchise (Tobacco) Act 1974

16Casino Control Act 1991

17Cemeteries and Crematoria Act 2003

18Charter of Human Rights and Responsibilities Act 2006

19Children's Services Act 1996

20Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

21Collusive Practices Act 1965

22Competition Policy Reform (Victoria) Act 1995

23Confiscation Act 1997

24Conservation, Forests and Lands Act 1987

25Constitution Act 1975

26Construction Industry Long Service Leave Act 1997

27Control of Weapons Act 1990

28Conveyancers Act 2006

29Co-operatives Act 1996

30Coroners Act 2008

31Corporations (Ancillary Provisions) Act 2001

32Corporations (Victoria) Act 1990

33Corrections Act 1986

34Country Fire Authority Act 1958

35County Court Act 1958

36Court Security Act 1980

37Credit (Administration) Act 1984

38Credit Act 1984

39Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

40Crimes Act 1958

41Crown Land (Reserves) Act 1978

42Crown Proceedings Act 1958

43Dairy Act 2000

44Dangerous Goods Act 1985

45Domestic Animals Act 1994

46Domestic Building Contracts Act 1995

47Drugs, Poisons and Controlled Substances Act 1981

48Education and Training Reform Act 2006

49Electricity Industry Act 2000

50Environment Protection Act 1970

51Equal Opportunity Act 1995

52Equipment (Public Safety) Act 1994

53Estate Agents Act 1980

54Evidence Act 1958

55Evidence Act 2008

56Fair Trading Act 1999

57Family Violence Protection Act 2008

58Fisheries Act 1995

59Food Act 1984

60Forests Act 1958

61Fuel Prices Regulation Act 1981

62Gambling Regulation Act 2003

63Gas Industry Act 2001

64Goods Act 1958

65Health Professions Registration Act 2005

66Heritage Act 1995

67Housing Act 1983

68Impounding of Livestock Act 1994

69Imprisonment of Fraudulent Debtors Act 1958

70Infringements Act 2006

71Interpretation of Legislation Act 1984

72Judicial Proceedings Reports Act 1958

73Juries Act 2000

74Land Act 1958

75Landlord and Tenant Act 1958

76Legal Aid Act 1978

77Legal Profession Act 2004

78Liquor Control Reform Act 1998

79Livestock Disease Control Act 1994

80Local Government Act 1989

81Long Service Leave Act 1992

82Magistrates' Court Act 1989

83Major Sporting Events Act 2009

84Marine Act 1988

85Marine Safety Legislation (Lakes Hume and Mulwala) Act 2001

86Mental Health Act 1986

87Mines Act 1958

88Motor Car Traders Act 1986

89New Tax System Price Exploitation Code (Victoria)
Act 1999

90Occupational Health and Safety Act 2004

91Petroleum (Submerged Lands) Act 1982

92Plant Health and Plant Products Act 1995

93Police Regulation Act 1958

94Pollution of Waters by Oil and Noxious Substances
Act 1986

95Prevention of Cruelty to Animals Act 1986

96Prisoners (Interstate Transfer) Act 1983

97Prohibition of Human Cloning for Reproduction
Act 2008

98Prostitution Control Act 1994

99Public Health and Wellbeing Act 2008

100Radiation Act 2005

101Rail Safety Act 2006

102Research Involving Human Embryos Act 2008

103Residential Tenancies Act 1997

104Road Legislation Amendment Act 2009

105Road Management Act 2004

106Road Safety Act 1986

107Sale of Land Act 1962

108Second-Hand Dealers and Pawnbrokers Act 1989

109Securities Industry Act 1975

110Sentencing Act 1991

111Serious Sex Offenders Monitoring Act 2005

112Sex Offenders Registration Act 2004

113Shop Trading Reform Act 1996

114State Electricity Commission Act 1958

115Summary Offences Act 1966

116Supreme Court Act 1986

117Surveillance Devices Act 1999

118Sustainable Forests (Timber) Act 2004

119Terrorism (Community Protection) Act 2003

120Tobacco Act 1987

121Trade Measurement Act 1995

122Trade Unions Act 1958

123Transport Accident Act 1986

124Transport Act 1983

125Travel Agents Act 1986

126Trustee Act 1958

127Trustee Companies Act 1984

128Unclaimed Money Act 2008

129Utility Meters (Metrological Controls) Act 2002

130Victims' Charter Act 2006

131Victorian Civil and Administrative Tribunal Act 1998

132Vital State Projects Act 1976

133Water Act 1989

134Water Industry Act 1994

135Wildlife Act 1975

136Working with Children Act 2005

137Wrongs Act 1958

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Endnotes

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

No. 68 of 2009

[Assented to 24 November 2009]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to make consequential amendments as a result of the Criminal Procedure Act 2009; and

(b)to provide transitional arrangements for the commencement of that Act; and

(c)to amend that Act to provide for witnesses in sexual offence or family violence cases; and

(d)to make other miscellaneous amendments relating to criminal procedure.

2Commencement

(1)This Part and Parts 2 and 6 come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 1 January 2011, it comes into operation on that day.

__________________

Part 2—Amendment of Criminal Procedure Act 2009

3Definitions

In section 3 of the Criminal Procedure Act 2009—

(a)in the definition of conviction, for "Chapters 6 and 8" substitute "Chapter 6";

(b)the definition of prison officer is repealed;

(c)in the note at the foot of the definition of sentence, for "to make any sentencing order which the Children's Court may make" substitute "to impose any sentence which the Children's Court may impose";

(d)insert the following definitions—

"evidence in support of alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

notice to appear means a notice served under section 21;

special hearing means a hearing conducted under section 370;".

4Notice to accompany summons or warrant

In section 13 of the Criminal Procedure Act 2009—

(a)after "summons to answer to a charge" insert "issued under section 12 or 14";

(b)for paragraph (b)(i) substitute—

"(i)if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and

(ii)if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and";

(c)in paragraph (b)(ii), for "(ii)" substitute "(iii)";

(d)in paragraph (b)(iii), for "(iii)" substitute "(iv)".

5Personal service of summons

In section 16(b) of the Criminal Procedure Act 2009, for "regulations" substitute "rules of court".

6When an indictable offence may be heard and determined summarily

In section 29(2)(b) of the Criminal Procedure Act 2009, for "sentencing orders" substitute "sentences".

7Division heading substituted

For the heading to Division 4 of Part 3.2 of Chapter 3 of the Criminal Procedure Act 2009 substitute—

"Division 4—Mention hearing, summary case conference and contest mention hearing".

8Admissibility of evidence in absence of accused

In sections 83(1)(a), 83(4), 84(1)(a) and 84(6) of the Criminal Procedure Act 2009, for "section 80" substitute "section 25(1) or 80".

9Rules with respect to statements

In the Criminal Procedure Act 2009—

(a)in section 38(1), omit "(1)";

(b)section 38(2) is repealed;

(c)the note at the foot of section 38(2) is repealed;

(d)at the foot of section 38 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(e)section 47(4) is repealed;

(f)the note at the foot of section 47(4) is repealed;

(g)at the foot of section 47 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(h)the note at the foot of section 49(5) is repealed;

(i)at the foot of section 49 insert—

"Note

Section 414 provides for acknowledgment of false statements.";

(j)section 112(4) is repealed;

(k)at the foot of section 112 insert—

"Note

Section 414 provides for acknowledgment of false statements.".

10Contents of hand-up brief

In section 110 of the Criminal Procedure Act 2009—

(a)omit "(1)";

(b)in paragraph (d)(vi), for "video recording of a kind referred to in section 37B(2) of the Evidence Act 1958" substitute "audiovisual recording of a kind referred to in section 367,".

11Rules with respect to recordings

In section 113(1) of the Criminal Procedure Act 2009—

(a)for "video" substitute "audiovisual";

(b)for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2".

12Contents of plea brief

At the foot of section 117 of the Criminal Procedure Act 2009 insert—

"Note

Section 414 provides for acknowledgment of false statements.".

13Committal mention hearing

In section 125(1)(a) of the Criminal Procedure Act 2009, for "section 141 or 142" substitute "section 141, 142 or 143".

14Recording of evidence

In the Criminal Procedure Act 2009—

(a)in section 130(1), in the definition of recording, for "video" substitute "audiovisual";

(b)in section 139(3), for "a video" substitute "an audiovisual".

15On committing accused for trial

For section 144(2)(b)(ii) of the Criminal Procedure Act 2009 substitute—

"(ii)the provisions of sections 342, 344 and 346, if relevant; and".

16Evidence taken after committal

(1)In section 150(2)(c) of the Criminal Procedure Act 2009, for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2".

(2)After section 150(4) of the Criminal Procedure Act 2009 insert—

"(5)The Magistrates' Court must not make an order under subsection (1) in respect of a witness referred to in section 123.".

(3)For section 152(3) of the Criminal Procedure Act 2009 substitute—

"(3)Without limiting subsection (2), the Magistrates' Court may order that the accused may cross-examine the person giving evidence under this section, irrespective of who calls the person as a witness.".

17Special mention hearing

In section 153(c) of the Criminal Procedure Act 2009, for "section 142" substitute "section 141, 142 or 143".

18Transfer of charges to Magistrates' Court

After section 168(3) of the Criminal Procedure Act 2009 insert—

"(4)If an order is made under this section, the transferring court may—

(a)order that the accused appear before the Magistrates' Court on a specified date; or

(b)if the accused is a natural person, remand the accused in custody, or grant bail, to appear before the Magistrates' Court on a specified date; or

(c)in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, before the Magistrates' Court on a specified date.".

19Powers of court at directions hearing

In section 181(2)(d) of the Criminal Procedure Act 2009, for "section 41G of the Evidence Act 1958" substitute "Division 6 of Part 8.2".

20Order for legal representation for accused

In section 197(7) of the Criminal Procedure Act 2009, for "section 17A of the Supreme Court Act 1986" substitute "this or any other Act".

21Manner of giving evidence

In section 232(3) of the Criminal Procedure Act 2009, for "section 41G and" substitute "Division 6 of Part 8.2 of this Act,".

22Determination of appeal

At the foot of section 256 of the Criminal Procedure Act 2009 insert—

"Note

See the definition of sentence in section 3.  This includes the recording of a conviction.".

23Abandonment of appeal

(1)For section 266(1) of the Criminal Procedure Act 2009 substitute—

"(1)Subject to subsections (2) and (3), an appeal to the County Court may be abandoned by filing a notice of abandonment of appeal, in the form prescribed by the rules of the County Court, with the County Court.".

(2)For section 266(3) of the Criminal Procedure Act 2009 substitute—

"(3)An appellant who has been sentenced to a term of imprisonment or detention but who is not in custody may abandon the appeal by—

(a)surrendering to the registrar of the County Court; and

(b)immediately filing a notice of abandonment of appeal in accordance with subsection (1).

(3A)If a person surrenders to the registrar of the County Court in accordance with subsection (3), the registrar may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the person.".

(3)In section 266(4) of the Criminal Procedure Act 2009 omit "in accordance with subsection (2) or the rules of the County Court".

(4)In section 266(5)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and".

24Failure to appear on appeal

(1)In section 267(2)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and".

(2)After section 267(6) of the Criminal Procedure Act 2009 insert—

"(7)On the reinstatement of an appeal under subsection (6), the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when—

(a)if required, the appellant signs the undertaking referred to in subsection (6)(b); and

(b)if the appellant is in custody because of the sentence appealed against and bail is granted under section 265, the appellant enters bail.

(8)Subsection (7) is subject to section 29 of the Road Safety Act 1986.".

(3)In section 268(1) of the Criminal Procedure Act 2009—

(a)for "section 257" substitute "section 257 or 260";

(b)for "section 258" substitute "section 258 or 261, as the case may be".

(4)In section 268(2) of the Criminal Procedure Act 2009, for "section 258" substitute "section 258 or 261, as the case may be".

25Appeal against conviction

(1)In section 277(2) of the Criminal Procedure Act 2009, for "appear" substitute "attend".

(2)At the foot of section 277(2) of the Criminal Procedure Act 2009 insert—

"Note

Section 323 enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial.".

26Determination of application for leave to appeal

(1)In the heading to section 280 of the Criminal Procedure Act 2009, after "appeal" insert "under section 278".

(2)In section 280(2) of the Criminal Procedure Act 2009, after "refused" insert "in relation to any ground of appeal".

27New section 284A inserted

After section 284 of the Criminal Procedure Act 2009 insert—

"284A   Determination of application for leave to appeal under section 283

(1)This section applies to an application for leave to appeal under section 283 that is heard by a single Judge of Appeal under section 315(1).

(2)An application for leave to appeal under section 283 may be refused in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the County Court.

(3)An application may be refused under subsection (2) even if the Judge of Appeal considers that there may be a reasonably arguable ground of appeal.

Note

Section 315(2) entitles an unsuccessful applicant to have the application determined by the Court of Appeal.".

28Determination of Crown appeal

In section 289(2) of the Criminal Procedure Act 2009, for "whether there is an error in the sentence imposed" substitute "whether an appeal should be allowed".

29Crown appeal against sentence

(1)Section 294(3) of the Criminal Procedure Act 2009 is repealed.

(2)At the foot of section 294 of the Criminal Procedure Act 2009 insert—

"Note

Section 321 provides for the effect on sentence of new evidence.".

30Interlocutory appeals

(1)For section 296(3) of the Criminal Procedure Act 2009 substitute—

"(3)A copy of the notice of application for review must be served on the respondent in accordance with section 392 or 394, as the case requires, within the relevant period specified in subsection (2) for filing the notice.".

(2)For section 298(2) of the Criminal Procedure Act 2009 substitute—

"(2)A copy of the notice of application for leave to appeal must be served on the respondent in accordance with section 392 or 394, as the case requires, within the relevant period specified in subsection (1) for filing the notice.".

31DPP may refer point of law to Court of Appeal

In section 308(3) of the Criminal Procedure Act 2009, for "Taxing Master of the Supreme Court" substitute "Costs Court".

32Stay of certain orders during appeal period

In section 311(3) of the Criminal Procedure Act 2009, for "quashed" substitute "set aside".

33Extension of time for filing or serving notice of appeal or notice of application for leave to appeal

In section 313(1)(a) of the Criminal Procedure Act 2009 omit "or under section 14A or 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".

34Powers of single Judge of Appeal

(1)In section 315(1) of the Criminal Procedure Act 2009—

(a)in paragraphs (c) and (d), for "given" substitute "filed and served";

(b)in paragraph (f), for "sentence." substitute "sentence;";

(c)after paragraph (f) insert—

"(g)to call on a court and a respondent to show cause why a question of law should not be reserved for determination by the Court of Appeal.".

(2)In section 315(2) of the Criminal Procedure Act 2009, after "(1)" insert "in relation to any ground of appeal".

35Bail following appeal

At the foot of section 323 of the Criminal Procedure Act 2009 insert—

"Note

Section 277(2) requires the Court of Appeal to order that the appellant appear on a specified date for the new trial.".

36Petition for mercy

For the note at the foot of section 327 of the Criminal Procedure Act 2009 substitute—

"Notes

1     Chapter 8 contains general provisions that apply to all criminal proceedings.

2     Clause 11 of Schedule 4 contains transitional provisions.".

37New section 336A inserted

After section 336 of the Criminal Procedure Act 2009 insert—

"336A   Victim who is a witness entitled to be present in court

(1)In a criminal proceeding where a victim of the offence is a witness in the proceeding, the court may order the victim to leave the courtroom until required to give evidence only if the court considers it appropriate to do so.

(2)Nothing in this section prevents the court from ordering a victim who is a witness to leave the courtroom at any time after giving evidence.".

38Court may act on application or on own motion

At the end of section 337 of the Criminal Procedure Act 2009 insert—

"(2)Unless the context otherwise requires, a power or discretion referred to in subsection (1) includes a power or discretion to revoke or vary a decision or order made in the exercise of that power or discretion.".

39Service of documents

(1)After section 340(3)(d) of the Criminal Procedure Act 2009 insert—

"(da)if the DPP has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the DPP into those facilities; or".

(2)After section 340(3) of the Criminal Procedure Act 2009 insert—

"(4)If a document is delivered into the facilities of a document exchange in accordance with subsection (3)(da), the day of service of the document is taken to be—

(a)the day following the day on which it is so delivered; or

(b)if the document is delivered on a Friday, the following Monday—

or on any other day that may be proved.".

(3)After section 342(b) of the Criminal Procedure Act 2009 insert—

"(ba)if the person to be served is represented by a legal practitioner who has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the legal practitioner into those facilities; or".

(4)At the end of section 342 of the Criminal Procedure Act 2009 insert—

"(2)If a document is delivered into the facilities of a document exchange in accordance with subsection (1)(ba), the day of service of the document is taken to be—

(a)the day following the day on which it is so delivered; or

(b)if the document is delivered on a Friday, the following Monday—

or on any other day that may be proved.".

40Notice to appear—costs

At the end of section 350 of the Criminal Procedure Act 2009 insert—

"(2)If a notice to appear lapses under section 22(1) and notice is not given in accordance with section 23, the Magistrates' Court may award costs against the member of the police force or public official who served the notice as if the notice to appear were a criminal proceeding in the Magistrates' Court.".

41Issue of warrant to arrest

In section 359(4) of the Criminal Procedure Act 2009, for "appear" substitute "attend".

42Transfer of charge to court with jurisdiction

At the end of section 361 of the Criminal Procedure Act 2009 insert—

"(2)If an order is made under this section, the transferring court may—

(a)order that the accused appear before the court to which the charge is transferred on a specified date; or

(b)if the accused is a natural person, remand the accused in custody, or grant bail, to appear before the court to which the charge is transferred on a specified date; or

(c)in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, before the court to which the charge is transferred on a specified date.".

43Regulations

After section 367(1)(e) of the Criminal Procedure Act 2009 insert—

"(ea)the making, use, possession, storage, access to and destruction of an audio or audiovisual recording referred to in Chapter 4 or 5 or Part 8.2;".

44New section 14A in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

In section 370 of the Criminal Procedure Act 2009, in proposed new section 14A(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 313 of the Criminal Procedure Act 2009" substitute "section 76C".

45New section 24AA in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

In section 371 of the Criminal Procedure Act 2009—

(a)in proposed new section 24AA(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(i)for "an accused" substitute "a person";

(ii)for "the accused" substitute "the person";

(b)in proposed new section 24AA(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 313 of the Criminal Procedure Act 2009" substitute "section 76C";

(c)in proposed new section 24AA(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "the accused" (wherever occurring) substitute "the appellant".

46Joint committals—Magistrates' Court Act 1989

In section 373 of the Criminal Procedure Act 2009—

(a)in proposed new section 25(3) of the Magistrates' Court Act 1989, for "defendant" (wherever occurring) substitute "accused";

(b)in proposed new section 25(4) of the Magistrates' Court Act 1989—

(i)for "defendant" substitute "accused";

(ii)for "defendants" substitute "accused";

(c)in proposed new section 25(8)(b) of the Magistrates' Court Act 1989, for "defendant" substitute "accused".

47Commencement of proceedings in Children's Court

In section 376 of the Criminal Procedure Act 2009, in the heading to proposed new section 344A of the Children, Youth and Families Act 2005, for "charge" substitute "charge-sheet".

48Joint committals—Children, Youth and Families Act 2005

In section 377 of the Criminal Procedure Act 2009—

(a)in proposed new section 516A of the Children, Youth and Families Act 2005, for "defendant" (wherever occurring) substitute "accused";

(b)in proposed new section 516A(1)(b)(ii) of the Children, Youth and Families Act 2005, after "manslaughter," insert "child homicide, defensive homicide,";

(c)in proposed new section 516A(2)(e) of the Children, Youth and Families Act 2005, for "defendants" substitute "accused".

49Statute law revision

In the Criminal Procedure Act 2009—

(a)in section 41(1)(d)(iii), for "charge." substitute "charge; and";

(b)in the heading to section 69, for "no case" substitute "no-case";

(c)in section 69(2), for "no case" substitute "no-case";

(d)in section 72(3), for "to do so" substitute

"to do so,";

(e)in section 118(1), for "informant," substitute "informant";

(f)in section 118(3)(a), for "informant," substitute "informant";

(g)in section 120(2), for "informant," substitute "informant";

(h)in section 150(4), for "section" substitute "sections";

(i)in note 1 at the foot of section 185, for "Sections" substitute "Section";

(j)in section 212(d), for "(c)," substitute "(c)";

(k)in section 229(3), for "no case" substitute "no-case";

(l)in section 242(6), for "made" substitute "imposed";

(m)in the heading to section 264, for "order" substitute "sentence";

(n)in section 272(5), after "copy" insert

"of the";

(o)in section 339(2)(b) omit "by";

(p)in section 374(1)(i), for "proceeding," substitute "proceeding";

(q)in section 378, in proposed new section 15B(2) of the Appeal Costs Act 1998, for "accused" (wherever occurring) substitute "respondent".

50New Part 8.2 inserted

After Part 8.1 of Chapter 8 of the Criminal Procedure Act 2009 insert—

"Part 8.2—Witnesses

Division 1—Guiding principles

338Guiding principles

It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—

(a)there is a high incidence of sexual violence within society; and

(b)sexual offences are significantly under-reported; and

(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d)offenders are commonly known to their victims; and

(e)sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.

Division 2—Evidence concerning complainant

339Application of Division

(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2)This Division applies to all complainants in a criminal proceeding referred to in subsection (1).

(3)This Division applies despite anything in this or any other Act or any rule of law to the contrary.

340Definition

In this Division—

sexual history evidence means evidence that relates to or tends to establish the fact that the complainant—

(a)was accustomed to engaging in sexual activities; or

(b)had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.

341Prohibition on questions and evidence concerning complainant's chastity

The court must not allow any questions as to, or admit any evidence of, the general reputation of the complainant with respect to chastity.

342Restriction on questions and evidence concerning complainant's sexual activities

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.

343Admissibility of sexual history evidence

Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.

344Application for leave

An application for leave under section 342—

(a)in the case of a summary proceeding, must be filed with the Magistrates' Court and served on the informant in accordance with section 392 at least 7 days before the summary hearing;

(b)in the case of a committal proceeding, must be filed with the Magistrates' Court and served on the informant and the DPP in accordance with section 392 at least 7 days before the committal hearing;

(c)in the case of a trial, must be filed with the County Court or the Supreme Court (as the case requires) and served on the DPP in accordance with section 392—

(i)at least 14 days before the day on which the trial is listed to commence; or

(ii) if a special hearing is to be held, at least 14 days before that hearing;

(d)in the case of a sentencing hearing, must be filed with the relevant court and served on the informant or the DPP (as the case requires) in accordance with section 392 at least 7 days before the sentencing hearing is listed to commence.

345Application for leave out of time

If it is in the interests of justice to do so, the court may hear and determine an application for leave under section 342 after the expiry of the relevant time limit specified in section 344.

346Contents of application for leave

(1)An application for leave under section 342 must be in writing and set out the matters required by subsection (2) or (3), as the case requires.

(2)An application for leave to cross-examine the complainant as to the sexual activities of the complainant must set out—

(a)the initial questions sought to be asked of the complainant; and

(b)the scope of the questioning sought to flow from the initial questioning; and

(c)how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit.

(3)An application for leave to admit evidence as to the sexual activities of the complainant must—

(a)identify the evidence that is sought to be admitted; and

(b)set out how the evidence has substantial relevance to facts in issue.

347Waiver of requirement to apply for leave in writing

If it is in the interests of justice to do so, the court may waive the requirement that an application for leave under section 342 be made in writing.

348Hearing of application for leave

An application for leave under section 342 must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant.

349Determination of application for leave during summary hearing, committal proceeding or trial

In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—

(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and

(b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and

(c)the need to respect the complainant's personal dignity and privacy; and

(d)the right of the accused to fully answer and defend the charge.

Note

Section 352 limits the relevance of sexual history evidence.

350Determination of application for leave during sentencing hearing

In the course of a sentencing hearing, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to the issue of appropriate sentence and the offender—

(a)has pleaded guilty to all sexual offences charged against the offender; or

(b)has been found guilty of all sexual offences charged against the offender.

Note

Section 352 limits the relevance of sexual history evidence.

351Court must state reasons if leave granted

(1)If the court grants leave under section 342 it—

(a)must state in writing the reasons for granting leave; and

(b)cause those reasons to be entered in the records of the court.

(2)The failure of a court to comply with subsection (1) does not invalidate any order made by it.

352Limitation on sexual history evidence

Sexual history evidence is not to be regarded—

(a)as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b)as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

Division 3—Cross-examination of protected witnesses

353Application of Division

(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—

(a)a sexual offence; or

(b)an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.

(2)This Division applies to a protected witness in a criminal proceeding referred to in subsection (1).

354Definitions

In this Division—

family member, in relation to the complainant or the accused, includes—

(a)a person who is or has been married to the complainant or the accused; and

(b)a person who has or has had an intimate personal relationship with the complainant or the accused; and

(c)a person who is or has been the parent or step-parent of the complainant or the accused; and

(d)a child who normally or regularly resides with the complainant or the accused; and

(e)a guardian of the complainant or the accused; and

(f)another person who is or has been ordinarily a member of the household of the complainant or the accused;

protected witness means—

(a)the complainant; or

(b)a family member of the complainant; or

(c)a family member of the accused; or

(d)any other witness whom the court declares under section 355 to be a protected witness.

355Court may declare witness to be protected witness

The court may at any time declare a witness to be a protected witness.

356Protected witness not to be cross-examined by accused in person

A protected witness must not be cross-examined by the accused in person.

357When accused is not legally represented

(1)If the accused is not legally represented, the court must—

(a)inform the accused and the jury (if any) that the accused is not permitted personally to cross-examine a protected witness; and

(b)ask the accused whether the accused has sought legal representation for the cross-examination of a protected witness; and

(c)if satisfied that the accused has not had a reasonable opportunity to obtain legal representation, grant an adjournment if so requested by the accused.

(2)If the accused does not obtain legal representation for the cross-examination of a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to provide legal representation for the accused for that purpose.

(3)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2).

(4)A legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give any instructions to that legal practitioner.

(5)If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.

358Jury warning concerning legal representation for cross-examination

If the accused is only legally represented for the cross-examination of a protected witness, the trial judge must warn the jury—

(a)that it is routine practice for an unrepresented accused to obtain or be provided with legal representation for the cross-examination of a protected witness; and

(b)that no adverse inference may be drawn against the accused as a result of the cross-examination not being conducted by the accused in person; and

(c)that the evidence given under cross-examination is not to be given any greater or lesser weight as a result of the cross-examination not being conducted by the accused in person.

Division 4—Alternative arrangements for giving evidence

359Application of Division

(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—

(a)a sexual offence; or

(b)an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.

(2)This Division applies to all witnesses (including complainants) in a criminal proceeding referred to in subsection (1).

(3)This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.

360Alternative arrangements for giving evidence

The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements—

(a)permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;

(b)using screens to remove the accused from the direct line of vision of the witness;

(c)permitting a person, chosen by the witness and approved by the court for this purpose, to be beside the witness while the witness is giving evidence, for the purpose of providing emotional support to the witness;

(d)permitting only persons specified by the court to be present while the witness is giving evidence;

(e)requiring legal practitioners not to robe;

(f)requiring legal practitioners to be seated while examining or cross-examining the witness.

Notes

1     Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion.

2     Section 337(2) provides that this direction may be varied or revoked.

361Jury warning concerning alternative arrangements

If the court directs that alternative arrangements be made for the giving of evidence by a witness, the trial judge must warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the making of those arrangements.

362Evidence given by closed-circuit television or other facilities

(1)This section applies to arrangements referred to in section 360(a) that are directed to be made under that section.

(2)Any place outside the courtroom where the witness is permitted to give evidence is taken to be part of the courtroom while the witness is there for the purpose of giving evidence.

(3)The court must direct that any evidence given by the witness is recorded.

(4)The court may make any order it considers appropriate to enable the witness to view any place or thing, or identify any person or thing, for the purposes of the proceeding or the evidence of the witness.

363When court must direct use of closed-circuit television or other facilities for complainant

If the witness is a complainant, the court must direct that an arrangement referred to in section 360(a) be made unless—

(a)the prosecution applies for the complainant to give evidence in the courtroom; and

(b)the court is satisfied that the complainant—

(i)is aware of the right of the complainant to give evidence in another place by closed-circuit television or other facilities; and

(ii)is able and wishes to give evidence in the courtroom.

364When court must direct use of screens for complainant

If the witness is a complainant and is to give evidence in the courtroom, the court must direct that an arrangement referred to in section 360(b) be made unless the court is satisfied that the complainant—

(a)is aware of the right of the complainant to give evidence while screens are used to remove the accused from the direct line of vision of the complainant; and

(b)does not wish a screen to be so used.

365When court must direct presence of support person for complainant

(1)If the witness is a complainant, the court must direct that an arrangement referred to in section 360(c) be made unless the court is satisfied that the complainant—

(a)is aware of the right of the complainant to have a support person when giving evidence; and

(b)does not wish to have a support person.

(2)Subsection (1) applies whether the witness is to give evidence in the courtroom or in another place.

Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters

366Application of this Division

(1)This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for—

(a)a sexual offence; or

(b)an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

Note

For committal proceedings see Chapter 4.

(2)This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is—

(a)a person under the age of 18 years; or

(b)a person with a cognitive impairment.

(3)In this Division, witness means a witness referred to in subsection (2).

367Use of recorded evidence-in-chief

A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.

368Admissibility of recorded evidence-in-chief

(1)Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if—

(a)a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394—

(i)in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing;

(ii)in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is to be held, at least 14 days before that hearing; and

(b)the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and

(c)at the summary hearing, special hearing or trial, the witness—

(i)identifies himself or herself and attests to the truthfulness of the contents of the recording; and

(ii)is available for cross-examination and re-examination.

(2)The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.

(3)The court may rule as inadmissible the whole or any part of the contents of a recording.

Division 6—Procedure and rules for children and cognitively impaired complainants

369Application of Division

(1)This Division applies to a trial in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2)This Division applies to a complainant in a criminal proceeding referred to in subsection (1) if, at the time at which the proceeding commenced, the complainant—

(a)was under the age of 18 years; or

(b)had a cognitive impairment.

(3)In the Division, complainant means a complainant referred to in subsection (2).

370Special hearing for pre-recording evidence

(1)Subject to subsection (2), the whole of the evidence (including cross-examination and re-examination) of a complainant must be—

(a)given at a special hearing under this Division and recorded as an audiovisual recording; and

(b)presented to the court in the form of that recording.

(2)On the application of the prosecution, the court may direct that subsection (1) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant—

(a)is aware of the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and

(b)is able and wishes to give direct testimony in the proceeding.

Note

Division 4 provides that the court may make alternative arrangements for the giving of direct testimony.

371Time limits for special hearing

(1)If a special hearing is to be held, it must be held—

(a)within 3 months after the day on which the accused is committed for trial; and

(b)before the court at which the indictment is filed.

Note

Section 212 imposes time limits for commencing trials for sexual offences.

(2)The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so.

(3)The court may extend time under subsection (2) before or after the time expires.

(4)More than one extension of time may be granted under subsection (2).

372Conduct of special hearing

(1)At a special hearing—

(a)the accused and his or her legal practitioner are to be present in the courtroom;

(b)the accused—

(i)is not to be in the same room as the complainant when the complainant's evidence is being taken;

(ii)is entitled to see and hear the complainant while the complainant is giving evidence and to have at all times the means of communicating with his or her legal practitioner;

(c)no person, other than a person authorised by the court, is to be present in the courtroom or the same room as the complainant when the complainant's evidence is being taken;

(d)the evidence of the complainant is to be given by means of closed-circuit television or other facilities that enable communication between the room in which the complainant is present and the courtroom;

(e)except as provided by this Division, the usual rules of evidence apply.

(2)The room in which the complainant gives evidence is taken to be part of the courtroom while the complainant is there for the purpose of giving evidence.

373Form in which recording of special hearing is to be tendered

(1)A recording referred to in section 370(1) that is tendered as evidence by the prosecution must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2)In subsection (1)—

the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3)In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

374Admissibility of evidence from special hearing

(1)In this section—

recording means a recording referred to in section 370(1).

(2)Subject to subsection (3), a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a)in the proceeding; and

(b)unless the relevant court otherwise orders, in—

(i)any new trial of, or appeal from, the proceeding; or

(ii)another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

(iii)a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded.

(3)The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.

Note

A party may apply for a ruling under subsection (3): section 337.

(4)Subject to subsection (3), the whole of a recording must be heard by the court.

(5)The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.

(6)Subject to section 376(3), if under this section a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so for cross-examination or re‑examination.

375Jury warning as to recording of special hearing

If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury—

(a)that it is routine practice for the evidence of a complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and

(b)that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(c)that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

376Cross-examination of complainant

(1)A complainant whose evidence is recorded under section 370 cannot be cross-examined or re-examined without leave.

(2)A court must not grant leave to cross-examine a complainant referred to in subsection (1) unless the court is satisfied that—

(a)the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

(b)if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or

(c)it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.

(3)If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

377Exception to hearsay rule—previous representations made by complainant under 18 years

(1)In this section—

asserted fact has the same meaning as in the Evidence Act 2008;

hearsay rule has the same meaning as in the Evidence Act 2008;

previous representation has the same meaning as in the Evidence Act 2008.

(2)This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.

(3)Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by—

(a)the complainant; or

(b)a person who saw, heard or otherwise perceived the representation being made.

(4)Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(5)A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(6)Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.

(7)Nothing in this section takes away from or limits any discretion a court has to exclude evidence.

Division 7—Admission of recorded evidence of complainant in sexual offence matters

378Application of Division

(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2)This Division applies to a complainant in a criminal proceeding referred to in subsection (1), other than a complainant whose evidence has been taken at a special hearing under Division 6.

(3)This Division applies to a recording of the evidence (including cross-examination and re-examination) of a complainant given during a trial in a criminal proceeding referred to in subsection (1).

(4)If the jury is discharged without verdict before a complainant completes his or her evidence, this Division applies to a recording of the partial evidence of the complainant.

(5)In this Division—

complainant means a complainant referred to in subsection (2);

recording means a recording referred to in subsection (3) or (4).

379Admissibility of recording of complainant's evidence

Subject to section 381, a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a)in the proceeding; and

(b)unless the relevant court otherwise orders, in—

(i)any new trial of, or appeal from, the proceeding; or

(ii)another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

(iii)a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded.

380Prosecution to give notice of intention to tender recording

(1)If the prosecution intends to apply to tender a recording as evidence in a proceeding referred to in section 379, the prosecution must serve on the accused and file in court written notice of that intention at least 21 days before the day on which the trial or hearing is listed to commence.

(2)The court may dispense with or vary a requirement imposed by subsection (1).

381Admission of recording of evidence of complainant

(1)The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to—

(a)whether the complainant's recorded evidence is complete, including cross-examination and re-examination;

(b)the effect of editing any inadmissible evidence from the recording;

(c)the availability or willingness of the complainant to give further evidence;

(d)whether the accused would be unfairly disadvantaged by the admission of the recording;

(e)any other matter that the court considers relevant.

(2)The court may admit the whole or any part of the contents of a recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible.

382Jury warning as to recorded evidence of complainant

If a recording is admitted into evidence under section 381, the trial judge must warn the jury—

(a)that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(b)that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

383Attendance of complainant

Subject to sections 384 and 385, if a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so to give further evidence.

384Direct testimony in addition to recording

(1)On the application of the prosecution, the court may direct that the complainant is to give direct testimony additional to a recording admitted into evidence if the court is satisfied that—

(a)the complainant is able and wishes to give direct testimony; and

(b)it is in the interests of justice to do so.

(2)A complainant may be cross-examined and re‑examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1).

Note

Any other cross-examination requires leave under section 385.

385Cross-examination of complainant

(1)Subject to section 384(2), if a recording of the evidence of the complainant is admitted into evidence in a proceeding, the complainant cannot be cross-examined or re‑examined without leave.

(2)A court must not grant leave to cross-examine a complainant unless the court is satisfied that—

(a)the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

(b)if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or

(c)it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.

(3)If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

386Form in which recording of complainant's evidence is to be tendered

(1)A recording that is tendered as evidence by the prosecution under this Division must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2)In subsection (1)—

the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3)In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

387Exception to hearsay rule

(1)In this section—

hearsay rule has the same meaning as in the Evidence Act 2008.

(2)The hearsay rule does not prevent—

(a)the admission of a recording in accordance with this Division; or

(b)the use of the recording to prove the existence of a fact that the complainant intended to assert by a representation made in the recorded evidence.

Division 8—Miscellaneous

388Evidence of specialised knowledge in certain cases

Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court may receive evidence of a person's opinion that is based on that person's specialised knowledge (acquired through training, study or experience) of—

(a)the nature of sexual offences; and

(b)the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence.

389Audiovisual link evidence from overseas in certain proceedings

(1)This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against section 49A(1) of the Crimes Act 1958.

(2)The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if—

(a)the witness will give the evidence from outside Australia; and

(b)the witness is not an accused in the proceeding; and

(c)the facilities required by subsection (3) are available or can reasonably be made available; and

(d)the court is satisfied that attendance of the witness at the court to give the evidence would—

(i)cause unreasonable expense or inconvenience; or

(ii)cause the witness psychological harm or unreasonable distress; or

(iii)cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

(e)the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link.

(3)A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting (the Victorian point) and the place where the evidence is given (the overseas point) are equipped with audiovisual facilities that—

(a)enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and

(b)enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point.

(4)The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence.

(5)An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either—

(a)by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or

(b)at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court.

(6)A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section.

(7)This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies.

(8)Nothing in this section limits the application of this Part to a charge for an offence against section 49A(1) of the Crimes Act 1958.

__________________".

51Amendment of cross-references consequential on renumbering

In the Criminal Procedure Act 2009—

(a)in section 2(2), for "384" substitute "437";

(b)in section 3—

(i)in the definition of accused, for "362" substitute "415";

(ii)in the definition of ordinary service, for "342" substitute "394";

(iii)in the definition of personal service, for "339" substitute "391";

(c)in section 5(c), for "362" substitute "415";

(d)in the note at the foot of section 14(3), for "349(3)" substitute "401(3)";

(e)in section 16, for "339" substitute "391";

(f)in the note at the foot of section 16, for "347(4)" substitute "399(4)";

(g)in section 17(1), for "339" substitute "391";

(h)in the note at the foot of section 17(1), for "342" substitute "394";

(i)in section 17(3), for "342(a)" substitute "394(a)";

(j)in section 36(1), for "339" substitute "391";

(k)in the note at the foot of section 36(1), for "342" substitute "394";

(l)in section 40(1), for "339" substitute "391";

(m)in the note at the foot of section 40(1), for "342" substitute "394";

(n)in note 1 at the foot of section 41, for "363" substitute "416";

(b)for "sentencing order made" substitute "sentence imposed".

110.30In section 18ZR(3)—

(a)for "Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act," substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009"; and

(b)for "sentencing order made" substitute "sentence imposed".

110.31In section 18ZR(4)—

(a)for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and

(b)for "section 86(1)(a) of that Act" (wherever occurring) substitute "section 256(2)(a) or section 259(2)(a) of that Act (as the case requires)".

110.32In section 18ZR(5)—

(a)for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and

(b)for "sentencing order made" substitute "sentence imposed".

110.33In section 18ZR(8), for "section 86(1) of the Magistrates' Court Act 1989" substitute "section 256(2)(a) or section 259(2)(a) of the Criminal Procedure Act 2009 (as the case requires)".

110.34In section 18ZR(9)—

(a)for "Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009"; and

(b)for "sentencing order made" substitute "sentence imposed".

110.35In section 26(1), for "charge" substitute "charge-sheet".

110.36In section 26(2), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009".

110.37In section 26(2)(a)—

(a)for "filing of a charge" substitute "filing of a charge-sheet"; and

(b)for "section 28(1)" substitute "section 12(1)".

110.38In section 26(2)(b) and (2)(c), for "defendant" substitute "accused".

110.39In section 31(1)(d), for "appearance" substitute "attendance".

110.40In section 31(4)(b), for "section 34 of the Magistrates' Court Act 1989" substitute "section 16 of the Criminal Procedure Act 2009".

110.41In section 31(4A), for "section 35 of the Magistrates' Court Act 1989" substitute "section 399 of the Criminal Procedure Act 2009".

110.42In section 31(4F)—

(a)for "appearance" substitute "attendance"; and

(b)for "defendant" substitute "offender".

110.43In section 31(4G), for "appears" substitute "attends".

110.44In section 47(1), for "charge" substitute "charge-sheet".

110.45In section 47(2), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009".

110.46In section 47(2)(a)—

(a)for "filing of a charge" substitute "filing of a charge-sheet"; and

(b)for "section 28(1)" substitute
"section 12(1)".

110.47In section 47(2)(b), for "defendant" substitute "accused".

110.48In section 47(2)(c), for "defendant" substitute "accused".

110.49In section 72(2)(a), for "appears" substitute "attends".

110.50In section 72(4), for "appear" substitute "attend".

110.51In section 72(5), for "appearance" substitute "attendance".

110.52In section 75(2)(a), for "appears" substitute "attends".

110.53In section 75(4), for "appear" substitute "attend".

110.54In section 75(5), for "appearance" substitute "attendance".

110.55In section 79(1), for "charge" substitute "charge-sheet".

110.56In section 79(3), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009".

110.57In section 79(3)(a)—

(a)for "filing of a charge" substitute "filing of a charge-sheet"; and

(b)for "section 28(1)" substitute
"section 12(1)".

110.58In section 79(3)(b) and (3)(c), for "defendant" substitute "accused".

110.59In section 83A(2)(b), for "appear" substitute "attend".

110.60In section 83D(1), in the definition for authorised person, for "tried" substitute "heard and determined".

110.61In section 83G(2), for "quashed" substitute

"set aside".

110.62For section 84(8)(b) and (c) substitute—

"(b)the depositions in the committal proceeding.".

110.63In section 85B(3)—

(a)for "count" (where first occurring) substitute "charge"; and

(b)for "count charged" substitute "charge".

110.64In section 85F(1)(b), for "defendant" substitute "accused".

110.65For section 85F(2)(b) and (c) substitute—

"(b)the depositions in the committal proceeding; or".

110.66For section 86(9)(b) and (c) substitute—

"(b)the depositions in the committal proceeding; or".

110.67In section 87H(1)(b), for "defendant" substitute "accused".

110.68For section 87H(2)(b) and (c) substitute—

"(b)the depositions in the committal proceeding; or".

110.69In section 89C(1)—

(a)for "section 83 of the Magistrates' Court Act 1989" (wherever occurring) substitute "section 254 of the Criminal Procedure Act 2009"; and

(b)for "sentencing order" substitute "sentence".

110.70In section 90(1), after "trial" insert "or hearing".

110.71In section 91(1), after "trial" insert "or hearing".

110.72In section 100(1)(a), for "presented for trial" substitute "indicted".

110.73In section 100(8), omit "quashed or".

110.74In section 101(2), after "trial" insert "or hearing".

110.75In section 101(3)(a), for "appearance" substitute "attendance".

110.76In section 102(1) and (6), after "trial" (wherever occurring) insert "or hearing".

110.77In section 102(7)—

(a)for "passing" substitute "imposing"; and

(b)for "pass" substitute "impose".

110.78In section 102(8), after "trial" insert "or hearing".

110.79In section 104(1), for "quashing" substitute "setting aside".

110.80The heading to Part 8 is repealed.

110.81In section 113(1), for "section 53(1) of the Magistrates' Court Act 1989" substitute "section 28(1) of the Criminal Procedure Act 2009".

110.82In section 116(1)(f), for "sentencing order" substitute "sentence".

110.83After section 137 insert—

"138   Transitional provision—Criminal Procedure Act 2009

(1)Subject to subsection (2), the maximum fine set out in section 112A, as inserted by section 433 of the Criminal Procedure Act 2009, applies to a sentence imposed on or after the commencement of section 433 of that Act, irrespective of when the criminal proceeding commenced and irrespective of when the Magistrates' Court determined to grant a summary hearing.

(2)If—

(a)the maximum fine set out in section 112A is greater than the maximum fine that applies to the summary hearing of an indictable offence immediately before the commencement of section 433 of the Criminal Procedure Act 2009; and

(b)before the commencement of section 433 of that Act, the Magistrates' Court determined to grant a summary hearing of a charge for the offence—

the maximum fine for the offence immediately before that commencement applies.

(3)Subject to subsection (4), the maximum fine set out in section 113D(1A) and (1B), as inserted by section 434 of the Criminal Procedure Act 2009, applies to a sentence imposed on or after the commencement of section 434 of that Act, irrespective of when the criminal proceeding commenced and irrespective of when the Magistrates' Court determined to grant a summary hearing.

(4)If—

(a)the maximum fine set out in section 113D(1A) is greater than the maximum fine that applies to the summary hearing of an indictable offence immediately before the commencement of section 434 of the Criminal Procedure Act 2009; and

(b)before the commencement of section 434 of that Act, the Magistrates' Court determined to grant a summary hearing of a charge for the offence—

the maximum fine for the offence immediately before that commencement applies.".

110.84In Schedule 2, omit "quashed or".

111Serious Sex Offenders Monitoring Act 2005

111.1In section 18(1) and (2) omit "quashed or".

111.2In section 18(3) omit "quashing or".

111.3In section 25J(1) and (2) omit "quashed or".

111.4In section 25J(3) omit "quashing or".

111.5In section 30(1), for "appear" substitute "attend".

111.6In section 31(4), for "appearance" (wherever occurring) substitute "attendance".

111.7In section 31(5), for "appearance" substitute "attendance".

111.8For section 38(1) substitute—

"(1)If the offender or the Secretary proposes to appeal under this Part, he or she must, in accordance with the rules of court, file with the Court of Appeal a notice of appeal setting out the grounds of the appeal within—

(a)28 days after the day on which the relevant decision was made; or

(b)any extension of that period granted under section 38A.".

111.9After section 38 insert—

"38A   Extension of time for filing notice of appeal

The Court of Appeal at any time may extend the time within which notice of appeal may be filed under this Part.".

111.10In section 39(1)(d), for "quash" substitute

"set aside".

111.11In section 40(1), for "charge" substitute "charge-sheet".

111.12In section 40(2), for "charge against him or her for" substitute "charge-sheet charging him or her with".

111.13In section 40(2A), for "charge" substitute "charge-sheet".

111.14In section 41(1), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009".

111.15In section 41(1)(a)—

(a)for "charge" substitute "charge-sheet"; and

(b)for "section 28(l)" substitute

"section 12(1)".

111.16In section 41(1)(b) and (c), for "defendant" substitute "accused".

112Sex Offenders Registration Act 2004

112.1In section 3, in the definition of sentence—

(a)for paragraph (a) substitute—

"(a)a sentence within the meaning of the Criminal Procedure Act 2009 or the Children, Youth and Families Act 2005, including an order for the adjournment of a proceeding under section 59 of the Criminal Procedure Act 2009; and";

(b)for "defendant" (wherever occurring) substitute "accused".

112.2In section 8(3)(c), for "counts in the one presentment" substitute "charges in the one indictment".

112.3In section 48, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009".

112.4In section 53(1)(d), for "section 128A of the Magistrates' Court Act 1989" substitute "section 59 of the Criminal Procedure Act 2009".

112.5In section 69(1) and (3), for "filing of the charge" substitute "filing of the charge-sheet charging the offence".

113Shop Trading Reform Act 1996

113.1In section 8(1)(c), for "defendant" substitute "accused".

114State Electricity Commission Act 1958

114.1In the Sixth Schedule, in clause 5, for "charges" substitute "charge-sheets".

115Summary Offences Act 1966

115.1In section 5, for "defendant" substitute "accused".

115.2In section 9(1A), for "defendant" substitute "accused".

115.3In section 10(2)(a), (5) and (6), for "defendant" substitute "accused".

115.4In section 24(1)(b), for "a defendant" substitute "an accused".

115.5In section 25, for "charge for an offence" substitute "charge-sheet charging an offence".

115.6In section 33(1)(c)(i), for "defendant" substitute "accused".

115.7In section 37(2), for "defendant" substitute "accused".

115.8In section 44(3)(a), for "defendant" substitute "accused".

115.9In section 44A(3)(a), for "defendant" substitute "accused".

115.10In section 49B(2), for "defendant" (wherever occurring) substitute "accused".

115.11In section 49D(2), for "defendant" substitute "accused".

115.12In section 49F(2), for "defendant" substitute "accused".

115.13In section 50A(6), for "defendant" substitute "accused".

115.14Section 53(4) is repealed.

115.15Insert the following heading to section 56—

"Who may file charge-sheet".

115.16In section 56(1), for "charge for a breach of or" substitute "charge-sheet charging".

115.17In section 57, for "charge in respect of an alleged" substitute "charge-sheet charging an".

115.18In section 60, for "charge before the court" substitute "charge-sheet before the court".

115.19After section 62(6) insert—

"(7)Section 53 as amended by section 436 of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 436 of that Act.

(8)For the purposes of subsection (7), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 436 of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.".

116Supreme Court Act 1986

116.1In section 17A(3)—

(a)for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009"; and

(b)omit "or presentment".

116.2In section 17A(3A)—

(a)after paragraph (a) insert—

"(ab)under section 272 of the Criminal Procedure Act 2009; or"; and

(b)in paragraph (b) omit "92 or".

116.3In section 17A(4), for "An appeal does not lie" substitute "Subject to subsection (4A), an appeal does not lie".

116.4After section 17A(4) insert—

"(4A)Subsection (4)(b) does not apply to an interlocutory appeal under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009.".

116.5In section 17A(7), for "An application" substitute "Unless otherwise provided by any other Act, an application".

116.6For section 19(e) substitute—

"(e)cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for a sexual offence within the meaning of the Criminal Procedure Act 2009; or".

116.7In section 111A(a), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009".

116.8In section 112(1)(a), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009".

117Surveillance Devices Act 1999

117.1In section 30I(3)(a), for "defendant" substitute "accused".

117.2In section 32(3), for "defendant" substitute "accused".

118Sustainable Forests (Timber) Act 2004

118.1In section 90(b), for "defendant" substitute "accused".

119Terrorism (Community Protection) Act 2003

119.1In section 23(2), for "defendant" (wherever occurring) substitute "accused".

120Tobacco Act 1987

120.1In section 5B(2), for "defendant" (wherever occurring) substitute "accused".

120.2In section 5D(2), for "defendant" (wherever occurring) substitute "accused".

120.3In section 15G(2), for "defendant" (wherever occurring) substitute "accused".

121Trade Measurement Act 1995

121.1In section 9(3), for "defendant" (wherever occurring) substitute "accused".

121.2In section 34(1)(b), for "defendant" (wherever occurring) substitute "accused".

121.3In section 34(2), for "defendant" (wherever occurring) substitute "accused".

121.4In section 34(3)—

(a)for "a defendant" substitute "an accused"; and

(b)for "the defendant" (wherever occurring) substitute "the accused"; and

(c)for "defendant's possession" substitute "possession of the accused".

121.5In section 35, for "defendant" (wherever occurring) substitute "accused".

121.6In section 64(1)(b), for "defendant" substitute "accused".

121.7In section 73(2), for "defendant" substitute "accused".

122Trade Unions Act 1958

122.1In section 9 omit "presentments".

122.2In section 13 omit "presentment or" (wherever occurring).

122.3After section 29 insert—

"30   Transitional

(1)Section 25 as amended by section 435(3) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(3) of that Act.

(2)For the purpose of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(3) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.".

123Transport Accident Act 1986

123.1In section 40A(1)(a)—

(a)for "a charge for an offence has been laid" substitute "a charge-sheet charging an offence has been filed"; and

(b)for "a charge for an offence may be laid" substitute "a charge-sheet charging an offence may be filed".

123.2In section 40A(2), for "charge is laid" (wherever occurring) substitute "charge-sheet is filed".

123.3In section 40A(3)(a), for "charge could be laid" substitute "charge-sheet could be filed".

123.4In section 120(1)—

(a)for "charge for an offence" substitute "charge-sheet charging an offence"; and

(b)for "file charges" substitute "file charge-sheets".

123.5In section 120(1A), for "charge for an offence" substitute "charge-sheet charging an offence".

123.6In section 139(4)(a)—

(a)for "a charge has been laid" substitute

"a charge-sheet charging an offence has been filed"; and

(b)for "a charge may be laid" substitute

"a charge-sheet charging an offence may be filed".

123.7In section 139(4)(b), for "charge" substitute "offence".

123.8In section 139(4)(c) and (d), for "charge is laid" substitute "charge-sheet is filed".

124Transport Act 1983

124.1In section 130A(3)(a)—

(a)omit "a presentment has been made or"; and

(b)for "laid" substitute "filed".

124.2In section 130A(3)(b), for "charge has been filed for the offence" substitute "charge-sheet charging the offence has been filed".

124.3In section 130A(4)(a), for "entering of a nolle prosequi" substitute "discontinuance of the prosecution".

124.4In section 130A(4)(c)—

(a)for "person against whom the charge has been laid" substitute "person charged"; and

(b)for "committal hearing" substitute "committal proceeding".

124.5In section 130A(4)(d), for "person against whom the charge has been laid" substitute "person charged".

124.6In section 134A(3), for "defendant" (wherever occurring) substitute "accused".

124.7In section 158(4), for "defendant" substitute "accused".

124.8Insert the following heading to section 159—

"Onus of proof on accused in certain cases".

124.9In section 159, for "defendant" (wherever occurring) substitute "accused".

124.10In section 163(2)(a)—

(a)omit "a presentment has been made or"; and

(b)for "laid" substitute "filed".

124.11In section 163(2)(b), for "charge has been filed for the offence" substitute "charge-sheet charging the offence has been filed".

124.12In section 163(3)(a), for "entering of a nolle prosequi" substitute "discontinuance of the prosecution".

124.13In section 163(3)(c)—

(a)for "person against whom the charge has been laid" substitute "person charged"; and

(b)for "committal hearing" substitute "committal proceeding".

124.14In section 163(3)(d), for "person against whom the charge has been laid" substitute "person charged".

124.15In section 214(4), for "defendant" (wherever occurring) substitute "accused".

124.16In section 214(5)—

(a)for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009"; and

(b)for "defendant" (wherever occurring) substitute "accused".

124.17In section 215C(4)(b), for "a charge filed for the alleged offence" substitute "the filing of a charge-sheet charging the alleged offence".

124.18In section 215D(3)(d), for "a charge filed for the alleged offence" substitute "the filing of a charge-sheet charging the alleged offence".

124.19In section 215D(4), for "charge" substitute "charge-sheet".

124.20In section 215F(4), for "defendant" (wherever occurring) substitute "accused".

124.21In section 215F(5)—

(a)for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009"; and

(b)for "sentencing order" substitute "sentence"; and

(c)for "made by it" substitute "imposed by it"; and

(d)for "defendant" (wherever occurring) substitute "accused".

124.22In the note at the foot of section 228ZZE(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009".

124.23In the note at the foot of section 228ZZK(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009".

124.24In the note at the foot of section 228ZZKA(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009".

124.25In section 229(1A), for "triable summarily" substitute "that may be heard and determined summarily".

124.26In section 229(1B), for "section 38 of the Magistrates' Court Act 1989" substitute "section 328 of the Criminal Procedure Act 2009".

124.27In section 229A(2), for "charge" substitute "charge-sheet".

124.28In section 230AE(1), (2) and (3), for "defendant" substitute "accused".

124.29In the heading to section 230AF, for "defendant" substitute "accused".

124.30In section 230AF(1), (2) and (3), for "defendant" substitute "accused".

124.31In section 230AF(4), (5), (6) and (7), for

"a defendant" substitute "an accused".

124.32In the heading to Division 6 of Part VII, for "Sentencing orders" substitute "Sentences".

125Travel Agents Act 1986

125.1In section 39O(3), for "defendant" substitute "accused".

126Trustee Act 1958

126.1In section 48(1) omit "or presentment".

127Trustee Companies Act 1984

127.1In section 45(6), for "defendant" (wherever occurring) substitute "accused".

128Unclaimed Money Act 2008

128.1In section 85, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009".

129Utility Meters (Metrological Controls) Act 2002

129.1In section 12(3), for "defendant" (wherever occurring) substitute "accused".

129.2In section 46(1)(b), for "defendant" substitute "accused".

129.3In section 65(2), for "defendant" substitute "accused".

130Victims' Charter Act 2006

130.1In section 9(a), for "charges filed" substitute "offences charged".

130.2In section 9(b)—

(a)for "charge is filed" substitute "offence is charged"; and

(b)for "charge was filed" substitute "offence was charged".

130.3In section 9(c), for "charges are filed" substitute "offences are charged".

130.4In section 11, for "trial process" substitute "process of the trial or hearing (as the case requires)".

131Victorian Civil and Administrative Tribunal Act 1998

131.1In section 138(1)—

(a)for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009"; and

(b)for "passed" substitute "imposed".

131.2In section 138(3), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009".

132Vital State Projects Act 1976

132.1In section 9(7), for "defendant" substitute "accused".

132.2In section 13—

(a)for "defendant" (wherever occurring) substitute "accused"; and

(b)for "the defendant's attendance" substitute "the attendance of the accused".

133Water Act 1989

133.1In the note at the foot of section 137A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009".

133.2In section 302(1)—

(a)for "defendant" substitute "accused"; and

(b)for "mention date" substitute "contest mention date".

134Water Industry Act 1994

134.1In the note at the foot of section 62A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009".

134.2In section 177A(1)—

(a)for "defendant" substitute "accused"; and

(b)for "mention date" substitute "contest mention date".

135Wildlife Act 1975

135.1In section 60(4), for "defendant" substitute "accused".

135.2In section 85(1)—

(a)for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009"; and

(b)for "defendant" (wherever occurring) substitute "accused".

135.3In section 86B, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009".

136Working with Children Act 2005

136.1In section 5(a)—

(a)omit "a presentment has been made or"; and

(b)for "laid" substitute "filed".

136.2In section 5(b), for "charge has been filed against the person for the offence" substitute "charge-sheet charging the offence has been filed against the person".

136.3In section 6(3), for "entering of a nolle prosequi" substitute "discontinuance of a prosecution".

136.4In section 13(1)(g), for "charge of" substitute "charge for".

136.5In section 14(1)(c), for "charge of" substitute "charge for".

136.6In section 20(3), for "charge of" substitute "charge for".

136.7In section 20(3)(a), for "charge" substitute "charge-sheet containing the charge".

136.8In section 21(2)—

(a)for "charge of" substitute "charge for"; and

(b)for "filing of the charge" substitute "filing of the charge-sheet containing the charge".

136.9In section 41(2), for "charge of" substitute "charge for".

137Wrongs Act 1958

137.1Section 3 is repealed.

137.2In section 4, for "presentment" substitute "indictment".

137.3In section 11(1) and (2), for "defendant" (wherever occurring) substitute "accused".

137.4In section 13, for "defendant" (wherever occurring) substitute "accused".

137.5After section 13 insert—

"13AA   Transitional

(1)Section 10 as amended by section 435(2) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(2) of that Act.

(2)For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(2) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.".

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Endnotes

Minister's second reading speech—

Legislative Assembly: 17 September 2009

Legislative Council: 15 October 2009

The long title for the Bill for this Act was "A Bill for an Act to make consequential and other amendments in relation to the Criminal Procedure Act 2009 and to provide transitional arrangements for the commencement of that Act and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 17 September 2009

Legislative Council: 15 October 2009

Absolute majorities:

Legislative Assembly: 15 October 2009

Legislative Council: 12 November 2009