Criminal Procedure Bill 2008

Chapter 1 - PRELIMINARY

• 1 Purposes
• 2 Commencement
• 3 Definitions
• 4 References to Parts

Chapter 2 - COMMENCING A CRIMINAL PROCEEDING PART 2.1—WAYS IN WHICH A CRIMINAL PROCEEDING IS COMMENCED

• 5 How a criminal proceeding is commenced
• 6 Commencement of a criminal proceeding in the Magistrates' Court
• 7 Time limits for filing a charge-sheet
• 8 Order for amendment of charge-sheet
• 9 Errors etc. in charge-sheet
• 10 Listing of matter for mention hearing or filing hearing in the Magistrates' Court
• 11 Place of hearing

Division 1 - Summons or warrant to arrest

• 12 Court may issue summons or warrant to arrest
• 13 Summons or warrant to be accompanied by charge- sheet and notice when served
• 14 Police or public official may issue summons
• 15 Contents of summons
• 16 Personal service of summons
• 17 Summons for summary offence may be served by ordinary service
• 18 Informant must nominate address etc. for service of documents
• 19 Extension of return date if summons not served
• 20 Adjournment of proceeding on application of accused

Division 2 - Notice to appear

• 21 Police or public official may serve notice to appear
• 22 Notice to appear lapses unless charge-sheet filed within 14 days
• 23 Notice to be given on lapsing
• 24 Preliminary brief to be served if charge-sheet filed
• 25 Non-appearance of accused served with notice to appear
• 26 Notice to appear does not commence proceeding

Chapter 3 - SUMMARY PROCEDURE PART 3.1—WHEN A SUMMARY HEARING MAY BE HELD

• 27 Summary offences
• 28 Indictable offences that may be heard and determined summarily
• 29 When an indictable offence may be heard and determined summarily
• 30 Procedure for indictable offences that may be heard and determined summarily

Division 1 - General

• 31 Court may change place of hearing
• 32 Accused entitled to copy of charge-sheet and particulars
• 33 Unrepresented accused who requires legal advice
• 34 Return of property

Division 2 - Pre-hearing disclosure of prosecution case

• 35 When preliminary brief is to be served
• 36 How preliminary brief must be served
• 37 Contents of preliminary brief
• 38 Requirements for informant's statement in preliminary brief
• 39 When full brief must be served
• 40 How full brief must be served
• 41 Contents of full brief
• 42 Continuing obligation of disclosure
• 43 Accused may make request for material etc. not provided
• 44 Informant must comply with request or state grounds of refusal
• 45 Grounds on which informant may refuse disclosure
• 46 Accused may apply for order requiring disclosure
• 47 Rules with respect to statements
• 48 Disclosure of address or telephone number of witness
• 49 Informant may place material on database

Division 3 - Preliminary disclosure of case of accused

• 50 Expert evidence
• 51 Alibi evidence
• 52 Offence to communicate with alibi witness

Division 4 - Mention hearing and contest mention hearing

• 53 Mention hearing
• 54 Summary case conference
• 55 Contest mention hearing

Division 1 - Joint or separate hearing of charges

• 56 Multiple charges on single charge-sheet or multiple accused named on single charge-sheet
• 57 Joint hearing of charges on separate charge-sheets
• 58 Order for separate hearing

Division 2 - Diversion program

• 59 Adjournment to undertake diversion program

Division 3 - Sentence indication

• 60 Court may give sentence indication
• 61 Effect of sentence indication

Division 4 - Entering a plea

• 62 Charge to be read or explained to accused before plea
• 63 Legal practitioner may enter plea on behalf of accused
• 64 Refusal to plead

Division 5 - Opening addresses

• 65 Parties may give opening addresses

Division 6 - Case for the accused

• 66 Accused entitled to respond after close of prosecution case
• 67 Election when accused is legally represented
• 68 Election when accused is not legally represented
• 69 Procedure for joint hearings if no case submission made
• 70 Questioning to determine proper course of proceeding
• 71 Opening address of accused at beginning of case for the accused
• 72 Evidential burden on accused for exceptions etc.

Division 7 - Closing addresses

• 73 Prosecutor's closing address
• 74 Closing address of the accused
• 75 Supplementary address by prosecutor

Division 8 - Determination of charge

• 76 Option of finding of attempt

Division 9 - Criminal record

• 77 Criminal record
• 78 Proof of previous convictions by criminal record

Division 10 - Non-appearance of party

• 79 Non-appearance of informant
• 80 Non-appearance of accused charged with summary offence
• 81 Non-appearance of accused charged with indictable offence
• 82 Non-appearance of corporate accused charged with indictable offence
• 83 Admissibility of evidence in absence of accused where full brief served
• 84 Admissibility of evidence in absence of accused where preliminary brief served
• 85 Non-appearance of accused—Infringements Act 2006
• 86 Proof of criminal record in absence of accused
• 87 Limitations on sentencing in absence of accused
• 88 Right to apply for rehearing
• 89 Notice of intention to apply for rehearing
• 90 Service of notice
• 91 Stay of sentence etc.
• 92 Court may order rehearing
• 93 Failure to appear on application
• 94 Automatic rehearing in certain cases

Chapter 4 - COMMITTAL PROCEEDING PART 4.1—PRELIMINARY

• 95 Definition
• 96 When a committal proceeding must be held
• 97 Purposes of a committal proceeding
• 98 When a committal proceeding commences
• 99 Time limit for determining certain committal proceedings for a sexual offence
• 100 Hearings in a committal proceeding and attendance of accused
• 101 Filing hearing
• 102 Time limit for filing hearing
• 103 Application for order
• 104 Order for compulsory examination hearing
• 105 Notice of compulsory examination order to be served
• 106 Compulsory examination hearing
• 107 Informant must serve hand-up brief
• 108 How hand-up brief must be served
• 109 Copy hand-up brief to be filed and forwarded to DPP
• 110 Contents of hand-up brief
• 111 Continuing obligation of disclosure
• 112 Rules with respect to statements
• 113 Rules with respect to recordings
• 114 Disclosure of address or telephone number of witness
• 115 Inspection of exhibits
• 116 Informant may serve and file plea brief
• 117 Contents of plea brief
• 118 Case direction notice
• 119 Contents of case direction notice
• 120 Late application for leave to cross-examine witness
• 121 Adjournment without appearance of parties
• 122 Compliance with request to copy or inspect items or disclose previous convictions of witness
• 123 No cross-examination of certain witnesses in sexual offence cases
• 124 Leave required to cross-examine other witnesses
• 125 Committal mention hearing
• 126 Time for holding committal mention hearing
• 127 Committal case conference
• 128 Committal hearing
• 129 Attendance of witnesses
• 130 Giving of evidence by witnesses
• 131 Disclosure of address or telephone number of witness
• 132 Cross-examination of witnesses
• 133 Special rules applicable to sexual offences
• 134 Failure of witness to attend committal hearing
• 135 Court may permit accused to be absent from committal hearing
• 136 Accused who absconds etc. during a committal hearing
• 137 Accused (natural person) absent at close of prosecution case
• 138 Procedure on accused's attendance after absence
• 139 Admissibility of non-oral evidence
• 140 Procedure if accused makes admission of relevant fact or matter
• 141 Determination of committal proceeding where hand-up brief used
• 142 Determination of committal proceeding where plea brief used
• 143 Determination of committal proceeding where accused elects to stand trial
• 144 Procedure before and on committing accused for trial
• 145 Transfer of summary offences that are related offences on or after committal
• 146 Documents to be forwarded to DPP
• 147 Accused entitled to copies of depositions and exhibits
• 148 Absent corporate accused to be notified of committal
• 149 Application for order that evidence be taken after committal
• 150 Determination of application
• 151 Attendance of witness
• 152 Taking of evidence after committal
• 153 Special mention hearing
• 154 Non-appearance of corporate accused
• 155 Nature of committal proceeding
• 156 Nothing in Chapter affects certain powers of DPP
• 157 DPP may give directions for release of property tendered in evidence

Chapter 5 - TRIAL ON INDICTMENT PART 5.1—INTRODUCTION

• 158 Application of Chapter
• 159 DPP or Crown Prosecutor may file an indictment
• 160 Choice of Supreme Court or County Court for filing an indictment
• 161 Direct indictment commences criminal proceeding
• 162 Filing of any other indictment does not commence criminal proceeding
• 163 Time limits for filing certain indictments
• 164 Filing of fresh indictment
• 165 Order for amendment of indictment
• 166 Errors etc. in indictment
• 167 Supreme Court may order that accused be tried in County Court or Supreme Court
• 168 Court may transfer certain charges to Magistrates' Court
• 169 Place of hearing of criminal trial
• 170 Multiple charges or multiple accused on single indictment
• 171 Copy indictment to be served
• 172 DPP may nominate address etc. for service of documents
• 173 Extra notice for corporate accused
• 174 Compelling attendance when direct indictment filed
• 175 Service of summons
• 176 Warrant to be accompanied by indictment and notice
• 177 DPP may discontinue a prosecution without adjudication
• 178 Release from custody on discontinuance of prosecution

Division 1 - Directions hearings

• 179 Directions hearing
• 180 Accused may be arraigned at a directions hearing
• 181 Powers of court at directions hearing

Division 2 - Pre-trial disclosure

• 182 Summary of prosecution opening and notice of pre- trial admissions
• 183 Response of accused to summary of prosecution opening and notice of pre-trial admissions
• 184 Intention to depart at trial from document filed and served
• 185 Continuing obligation of disclosure
• 186 Disclosure of address or telephone number of witness
• 187 Previous convictions of witness
• 188 Prosecution notice of additional evidence
• 189 Expert evidence
• 190 Alibi evidence
• 191 Offence to communicate with alibi witness

Division 3 - Orders

• 192 Power to change place of trial
• 193 Order for separate trial
• 194 Order for separate trial—sexual offences
• 195 Order for separate trial—conspiracy
• 196 Other powers of court not affected
• 197 Order for legal representation for accused
• 198 Order for taking evidence from a witness before trial

Division 4 - Procedure for pre-trial orders and other decisions

• 199 Court may make orders and other decisions before trial
• 200 Disclosure of pre-trial issues
• 201 Court may decide pre-trial issue without a hearing
• 202 Hearing of application for exclusion of evidence
• 203 Judge at pre-trial hearing need not be trial judge
• 204 Pre-trial orders and other decisions generally binding on trial judge
• 205 Pre-trial orders and other decisions may be applied in new trial
• 206 Procedure if prosecution proposes not to lead evidence
• 207 Court may give sentence indication
• 208 Application for sentence indication
• 209 Effect of sentence indication

Division 1 - Preliminary

• 210 When trial commences
• 211 Time limit for commencing trial for offences other than sexual offences
• 212 Time limits for commencing trials for sexual offences
• 213 Powers of trial judge not affected
• 214 Non-appearance of corporate accused at trial

Division 2 - Arraignment

• 215 Arraignment
• 216 Written pleas of guilty may be accepted
• 217 Arraignment in presence of jury panel
• 218 Special pleas in addition to plea of not guilty
• 219 Plea of guilty to alternative offence
• 220 Form of plea of previous conviction or previous acquittal
• 221 Refusal to plead

Division 3 - Assisting the jury

• 222 Judge may address jury
• 223 Jury documents

Division 4 - Opening addresses

• 224 Opening address by prosecutor
• 225 Response of accused to prosecution opening

Division 5 - Case for the accused

• 226 Accused entitled to respond after close of prosecution case
• 227 Election when accused is legally represented
• 228 Election when accused is not legally represented
• 229 Procedure for joint trials if no-case submission made
• 230 Questioning to determine proper course of proceeding
• 231 Opening address of accused

Division 6 - Giving of evidence

• 232 Manner of giving evidence
• 233 Introduction of evidence not previously disclosed

Division 7 - Closing addresses and judge's directions to the jury

• 234 Prosecution closing address
• 235 Closing address of the accused
• 236 Supplementary prosecution address
• 237 Comment on departure or failure
• 238 Judge's directions to the jury

Division 8 - Alternative verdicts and discharge of jury from delivering verdict

• 239 Alternative verdicts on charges other than treason or murder
• 240 Judge may order that guilt in respect of alternative offences is not to be determined
• 241 When judge may enter finding of guilty or not guilty

Division 1 - Hearing of charges for related and unrelated summary offences

• 242 Summary offence related to indictable offence
• 243 Unrelated summary offence

Division 2 - Criminal record

• 244 Criminal record
• 245 Proof of previous convictions by criminal record

Division 3 - Powers and obligations

• 246 Attendance of accused at hearings
• 247 Power to extend or abridge time
• 248 Parties must inform Juries Commissioner of certain events
• 249 Counsel required to retain brief for trial
• 250 Complaints about legal practitioners
• 251 Judge at earlier trial not prevented from presiding at later trial
• 252 Offence for corporate accused to fail to appear
• 253 Abolition of grand jury procedure

Chapter 6 - APPEALS AND CASES STATED PART 6.1—APPEAL FROM MAGISTRATES' COURT TO COUNTY COURT

Division 1 - Appeal by offender

• 254 Right of appeal
• 255 How appeal is commenced
• 256 Determination of appeal

Division 2 - Appeal by DPP against sentence

• 257 DPP's right of appeal against sentence
• 258 How appeal is commenced
• 259 Determination of DPP's appeal

Division 3 - Appeal by DPP—Failure to fulfil undertaking

• 260 DPP's right of appeal—failure to fulfil undertaking
• 261 How appeal is commenced
• 262 Determination of DPP's appeal—failure to fulfil undertaking

Division 4 - Procedure

• 263 Late notice of appeal deemed to be application for leave to appeal
• 264 Stay of order
• 265 Bail pending appeal
• 266 Abandonment of appeal
• 267 Appellant's failure to appear
• 268 Respondent's failure to appear on appeal by DPP
• 269 One notice of appeal for 2 or more sentences
• 270 Appeal against aggregate sentence
• 271 Appeal to County Court authorised by other Acts
• 272 Appeal to Supreme Court on a question of law
• 273 Appeal on question of law precludes appeal to County Court

Division 1 - Appeal against conviction

• 274 Right of appeal against conviction
• 275 How appeal is commenced
• 276 Determination of appeal against conviction
• 277 Orders etc. on successful appeal

Division 2 - Appeal by offender against sentence

• 278 Right of appeal against sentence imposed by originating court
• 279 How appeal is commenced
• 280 Determination of application for leave to appeal
• 281 Determination of appeal
• 282 Orders etc. on successful appeal
• 283 Right of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court
• 284 How appeal is commenced
• 285 Determination of appeal
• 286 Orders etc. on successful appeal

Division 3 - Crown appeal against sentence

• 287 Right of appeal—inadequate sentence
• 288 How appeal is commenced
• 289 Determination of Crown appeal
• 290 Orders etc. on successful appeal
• 291 Right of appeal—failure to fulfil undertaking
• 292 How appeal is commenced
• 293 Determination of Crown appeal—failure to fulfil undertaking
• 294 Powers of Court of Appeal on successful appeal

Division 4 - Interlocutory appeal

• 295 Right of appeal against interlocutory decision
• 296 Review of refusal to certify
• 297 When leave to appeal may be given
• 298 How interlocutory appeal is commenced
• 299 Adjournment of trial if leave to appeal given
• 300 Determination of appeal
• 301 Determination of interlocutory appeal to be entered on record

Division 5 - Case stated for Court of Appeal

• 302 Reservation of question of law
• 303 Adjournment if question of law reserved
• 304 Refusal to reserve question of law
• 305 Case to be stated if question of law reserved
• 306 General powers of Court of Appeal on case stated
• 307 Judgment to be entered on record
• 308 DPP may refer point of law to Court of Appeal

Division 6 - Status of sentences and orders during appeal period

• 309 Sentence not stayed during appeal period
• 310 Bail pending appeal
• 311 Stay of certain orders during appeal period
• 312 Execution of order for forfeiture or destruction of property

Division 7 - Powers and procedure

• 313 Extension of time for filing or serving notice of appeal or notice of application for leave to appeal
• 314 Abandonment of appeal
• 315 Powers which may be exercised by a single Judge of Appeal
• 316 Trial judge may be required to provide report on appeal
• 317 Production of documents, exhibits or other things
• 318 Order for examination of compellable witness
• 319 Evidence of competent but not compellable witness
• 320 Reference of question to special commissioner
• 321 New evidence—effect on sentence
• 322 Sentence in absence of offender
• 323 Bail following appeal
• 324 Warrants
• 325 Ancillary orders of originating court
• 326 Expenses of assessors and special commissioners

Chapter 7 - REFERENCE TO COURT OF APPEAL ON PETITION FOR MERCY

• 327 Reference by Attorney-General

Chapter 8 - GENERAL PART 8.1—CONDUCT OF PROCEEDING

• 328 Appearance
• 329 When accused etc. is required to appear at hearing
• 330 When accused etc. is required to attend hearing
• 331 Power to adjourn proceeding
• 332 Transfer of accused between place of detention and court
• 333 Power to return accused to youth justice centre
• 334 Proceedings against bodies corporate
• 335 Interpreter
• 336 Subpoenas and witness summonses
• 337 Court may act on application or on own motion
• 338 General rules as to service
• 339 Personal service
• 340 Service on informant or DPP
• 341 Service on company, registered body, incorporated association or other body corporate
• 342 Ordinary service
• 343 Personal service satisfies ordinary service
• 344 Last known place of residence or business
• 345 Order for substituted service
• 346 Who may effect service
• 347 Proof of service

Division 1 - Preliminary

• 348 Right to be heard

Division 2 - Costs in summary proceedings and committal proceedings

• 349 Costs in Magistrates' Court
• 350 Notice to appear
• 351 Convicted accused to pay filing fee

Division 3 - Costs in trials on indictment

• 352 Costs in the Supreme Court and County Court
• 353 Costs order

Division 4 - Costs on appeal

• 354 Costs on appeal to County Court
• 355 Costs on abandonment of appeal to County Court
• 356 Costs on appeal from Magistrates' Court to Supreme Court on a question of law
• 357 No costs on appeal to Court of Appeal or on new trial

Division 5 - Legal practitioners

• 358 Costs liability of legal practitioner
• 359 Issue of warrant to arrest
• 360 Power to amend when there is a defect or error
• 361 Transfer of charge to court with jurisdiction
• 362 Court may direct that a person be prosecuted for perjury
• 363 Disclosure of material by prosecution
• 364 Court fees not payable by accused
• 365 Supreme Court—limitation of jurisdiction
• 366 Rules of court
• 367 Regulations

Chapter 9 - REPEALS AND CONSEQUENTIAL AND OTHER AMENDMENTS PART 9.1—CRIMES (CRIMINAL TRIALS) ACT 1999

• 368 Repeal The Crimes (Criminal Trials) Act 1999 is repealed.
• 369 Amendment of the Crimes Act 1958
• 370 New section 14A inserted
• 371 New section 24AA inserted
• 372 Consequential amendments In the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—
• 373 Joint committals
• 374 Consequential amendments
• 375 Definitions inserted
• 376 New Part 5.1A inserted in Chapter 5
• 344A Time limits for filing a charge
• 344B Application for extension of time for commencement of proceeding
• 344C Extension of time
• 344D Rehearing
• 377 New section 516A inserted
• 378 New sections 15A, 15B and 15C inserted
• 15B Application for indemnity certificate by respondent if interlocutory appeal by prosecution
• 15C Application for indemnity certificate if case stated for Court of Appeal
• 379 Repeal
• 380 New section 112A inserted
• 381 Maximum fine for body corporate
• 382 Reclassification of certain offences
• 383 Option of jury trial removed
• 384 Repeal of provisions concerning sentence indications in Supreme Court and County Court
• 385 Repeal of Chapter

Schedule 1 - CHARGES ON A CHARGE-SHEET OR INDICTMENT (Sections 6(3), 159(3))

• 1 Statement of offence
• 2 Statement of particulars
• 3 Statutory offence
• 4 Exceptions, exemptions etc.
• 5 Joinder of charges
• 6 Charge against multiple accused
• 7 Descriptions generally
• 8 Description of persons
• 9 Description of document
• 10 Description of property
• 11 Statement of intent to deceive, injure or defraud
• 12 Perjury, subornation of perjury, etc.
• 13 Names of witnesses to be included on indictment

Schedule 2 - INDICTABLE OFFENCES THAT MAY BE HEARD AND DETERMINED SUMMARILY (Section 28(1))

• 1 Common law
• 2 Control of Weapons Act 1990
• 3 Crimes Act 1958
• 4 Dangerous Goods Act 1985
• 5 Drugs, Poisons and Controlled Substances Act 1981
• 6 Electricity Industry Act 2000
• 7 Electricity Safety Act 1998
• 8 Environment Protection Act 1970
• 9 Equipment (Public Safety) Act 1994
• 10 Firearms Act 1996
• 11 Food Act 1984
• 12 Gas Industry Act 2001
• 13 Gas Safety Act 1997
• 14 Health Records Act 2001
• 15 Heritage Act 1995
• 16 Infertility Treatment Act 1995
• 17 Information Privacy Act 2000
• 18 Juries Act 2000
• 19 Major Events (Aerial Advertising) Act 2007
• 20 Occupational Health and Safety Act 2004
• 21 Police Regulation Act 1958
• 22 Pollution of Waters by Oil and Noxious Substances Act 1986
• 23 Prostitution Control Act 1994
• 24 Road Management Act 2004
• 25 Sex Offenders Registration Act 2004
• 26 Sports Event Ticketing (Fair Access) Act 2002
• 27 Tobacco Act 1987
• 28 Water Act 1989
• 29 Water Industry Act 1994
• Schedule 3 - PERSONS WHO MAY WITNESS STATEMENTS IN PRELIMINARY BRIEF, FULL BRIEF OR HAND-UP BRIEF (Sections 38, 47, 112)