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also confirms that a trial judge may make any order during trial that could have been made pre-trial and that nothing in the Bill removes or restricts any powers of a trial judge that existed prior to the Bill coming into force. Clause 200 obliges the parties to notify the court and the other party of issues that fall within clause 199(1), whether it is intended to raise such an issue before or during trial. The party obliged to raise the issue must first notify the other party of the issue or the order sought, in order to ascertain whether the issue will be in dispute or the order will be opposed; and secondly, notify the court of the issue or order sought. The notification to the court must include confirmation that the other party has been notified of the issue or the order sought and information, if available, as to whether the issue is in dispute or the order is opposed. The notification must be given as soon as possible after the party becomes aware of the issue and at least 14 days before the trial is listed to commence. If the party is not aware of the issue 14 days prior to the trial, notification must be given as soon as possible after the party becomes aware of it. This clause incorporates the contents of section 10 of the Crimes (Criminal Trials) Act 1999 with two additions—
the existing obligation to raise issues within 14 days of trial is made subject to an overriding obligation to raise issues as soon as they become known to a party; and
it provides an express obligation to raise an issue with the other party before notifying the court and the notification to the court must include confirmation that the issue has been discussed between the parties.
Clause 201 allows the court to decide pre-trial issues of which it is notified under clause 200, entirely on the basis of written submissions, without the attendance of the parties or their representatives, provided that all the parties to the proceeding agree. Clause 202 applies when the court hears an application by the accused for the exclusion of evidence. In such cases, the court may hear evidence on behalf of the accused before it hears evidence called on behalf of the prosecution. Clause 203 provides that directions hearings or other pre-trial hearings do not need to be conducted by the trial judge. Clause 204 provides that decisions made at directions hearings or other pre-trial hearings by a judge who is not the trial judge are binding on the trial judge, unless otherwise ordered. Clause 205 applies if a new trial is held. It allows decisions made in directions hearings or other pre-trial hearings held in connection with an earlier trial to be treated as if they had been held in connection with the new trial. However, the court does not have to treat previous pre-trial decisions in this way if it considers that to do so would be inconsistent with any order or decision made or direction on an appeal, or would otherwise not be in the interests of justice. Clause 206 provides the process if the prosecution decides not to lead evidence against an accused before trial. If the accused is arraigned and pleads not guilty to a charge in respect of which the prosecution does not propose to lead any evidence, the prosecution must inform the court that it does not propose to lead any evidence and the court must direct that an entry of not guilty be made on the record in respect of the charge. This entry has the same effect as if it were a jury verdict. This clause is based on section 391 of the Crimes Act 1958. Once a trial commenced, only the jury could acquit the accused. The Bill clarifies when a trial formally commences (see clause 210) and allows legal, evidential and procedural issues to be decided before trial (see clause 199). As a result, this power is likely to be of less use. However, clause 206 has been retained so that the prosecution can end a case before trial with the result that an acquittal is entered (rather than discontinuing a prosecution under clause 177) which does not result in an acquittal. Clause 206 complements rather than interferes with the power to discontinue a prosecution. See also clause 241 which allows a judge to enter a finding of not guilty during trial.