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

Authorised by the Chief Parliamentary Counsel Authorised Version i Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 TABLE OF PROVISIONS Rule Page 1 Object 1 2 Authorising provisions 2 3 Commencement 2 4 Principal Rules 2 5 New Rule 6A inserted 2 6 A witness summons for the production of a document or thing—confidential communications 2 7 Issuing of certificate to a victim of identity crime 3 8 New Rule 29A inserted 3 9 Caution to be given to person charged 3 10 New Rule 59 substituted 3 11 Response to notice of application 4 12 Last known place of residence or business for the purpose of service 4 13 Revocation of Rule 97 4 14 Form 8 amended 4 15 Form amended 4 16 New Forms 12 and 13 substituted 5 17 Form 37 amended 10 ═══════════════ Endnotes 11 -- 1 of 12 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2016 S.R. No. 45/2016 Magistrates' Court Act 1989 Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: 1 Object The object of these Rules is to amend the Magistrates' Court Criminal Procedure Rules 2009— (a) to clarify who is a proper officer for the purposes of the relevant provisions of the Sentencing Act 1991 and the Serious Sex Offenders (Detention and Supervision) Act 2009; and (b) to make changes to prescribed Forms consequent on amendments to the Criminal Procedure Act 2009 by the Crimes Amendment (Child Pornography and Other Matters) Act 2015; and (c) to update the Forms to be used for a request for a contested summary hearing and witness summons; and (d) to make other amendments updating and correcting internal references and references to other legislation. -- 2 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 2 2 Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 3 Commencement These Rules come into operation on 1 July 2016. 4 Principal Rules In these Rules, the Magistrates' Court Criminal Procedure Rules 20091 are called the Principal Rules. 5 New Rule 6A inserted After Rule 6 of the Principal Rules insert— "6A Proper officer The proper officers of the Court are— (a) for the purposes of Part 3B of the Sentencing Act 1991—all registrars and deputy registrars; and (b) for the purposes of sections 72(4)(b) and 75(4)(b) of the Sentencing Act 1991—all registrars; and (c) for the purposes of section 83AJ(3) of the Sentencing Act 1991—all registrars; and (d) for the purposes of section 172A(2) of the Serious Sex Offenders (Detention and Supervision) Act 2009—all registrars.". 6 A witness summons for the production of a document or thing—confidential communications In Rule 25(2) of the Principal Rules, for "section 32C(2)" substitute "section 32C(1)". -- 3 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 3 7 Issuing of certificate to a victim of identity crime In Rule 29(1) and (2) of the Principal Rules, after "section 89F" insert "of the". 8 New Rule 29A inserted After Rule 29 of the Principal Rules insert— "29A Caution to be given to person charged For the purposes of section 68(1) of the Criminal Procedure Act 2009, the caution set out in Form 37 may be used by the Court.". 9 Caution to be given to person charged In Rule 54 of the Principal Rules— (a) after "Criminal Procedure Act" insert "2009"; (b) omit "and as provided by section 398 of the Crimes Act 1958"; (c) omit "in section 398 of the Crimes Act 1958 and". 10 New Rule 59 substituted For Rule 59 of the Principal Rules substitute— "59 Application to grant, vary or revoke bail after the accused is committed to trial An application for the granting, variation or revocation of trial bail after the date on which the committal proceedings have been concluded must be filed with the Court and served, unless the court otherwise directs. Note An application for the variation or for the revocation of trial bail must be in Form 12 or Form 13, respectively, of the Bail Regulations 2012.". -- 4 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 4 11 Response to notice of application In Rule 61 of the Principal Rules, for "Rule 64" substitute "Rule 60". 12 Last known place of residence or business for the purpose of service In Rule 84(d) of the Principal Rules— (a) for "Marine Act 1988" (where first occurring) substitute "Marine (Drug, Alcohol and Pollution Control) Act 1988"; (b) for "Marine Act 1988" (where secondly occurring) substitute "Marine Safety Act 2010". 13 Revocation of Rule 97 Rule 97 of the Principal Rules is revoked. 14 Form 8 amended In Form 8 of the Principal Rules, after "Family Violence Protection Act 2008, of such a person; or" insert— "● result in the disclosure of child pornography to the accused personally; or". 15 Form amended In Form 9 of the Principal Rules, after "comes into their possession." insert— "However, the informant does not have an obligation to disclose to you any information, document or thing if the informant believes that doing so will result in the disclosure to you of child pornography. In that case, you may apply to the court for an order requiring the informant to provide, or make available for inspection, the information, document or thing.". -- 5 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 5 16 New Forms 12 and 13 substituted For Forms 12 and 13 of the Principal Rules substitute— "FORM 12 Rule 22 REQUEST FOR CONTESTED SUMMARY HEARING In the Magistrates' Court of Victoria at [venue] Court reference: Informant: Accused:  The accused is not legally represented  The accused is represented by: Estimated hearing time: YES NO Has a summary case conference been held?   Does the accused consent to summary jurisdiction?   OFFENCES YES NO Are there co-offenders?   If yes, names of co-offenders: Is it an alleged sexual offence?   Is it alleged that the offence arises out of an act of family violence?   -- 6 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 6 ISSUES IN DISPUTE YES NO Factual arguments   Question of law   Self defence   Alibi   Voir dire   If yes to any of the above, description of issue (e.g. admissibility of all/part of VARE or ROI): YES NO Application for a confidential communication? (s.32C Evidence (Miscellaneous Provisions) Act 1958)   If yes, SME date of application: ___/___/___ Application re sexual activities of the complainant? (ss 342, 344 Criminal Procedure Act 2009)   If yes, SME date of application: ___/___/___ Tendency/coincidence notices?   If yes, date to be served by: ___/___/___ Material not yet provided?   If yes, provide details: Admissions/concessions?   If yes, provide details: WITNESSES REQUIRED Prosecution: YES NO Informant   Corroborator   Other police officer   Civilian   -- 7 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 7 Expert   Child witness   Child witness service booked?   Cognitively impaired witness   Remote booked?   Protected witness   Remote booked?   Order made for Victoria Legal Aid to cross- examine witness (s.357 Criminal Procedure Act 2009)?   Accused: YES NO Civilian   Expert   Child   YES NO Will compellability of family members arise? (s.18 Evidence Act 2008)   Legal advice arranged?   Will self-incrimination arise? (s.128 Evidence Act 2008)   Legal advice arranged?   RESOURCES REQUIRED YES NO Audiovisual link   Remote witness facility   DVD/laptop   Interpreter   If yes, language required: -- 8 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 8 REQUEST MATTER BE LISTED FOR A CONTESTED HEARING [Name and signature of Lawyer of Accused OR Accused] [Name and signature of Prosecutor] Note: If the accused is not legally represented, this form is to be completed by the prosecution relevant to the information in their possession. This form is to be filed with the Court Coordinator at the relevant venue. -- 9 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 9 FORM 13 Rule 24 WITNESS SUMMONS In the Magistrates' Court of Victoria at [venue] Court Reference: To the Witness DETAILS OF THE CASE Name of person charged: [Accused] Summary of the charges: Material evidence likely to be given by the witness: AND/OR [delete where appropriate] Relevant documents or things likely to be in possession or control of the witness: Who filed the charges? [Informant] Agency and address: Email address: Phone no.: WHAT YOU HAVE TO DO You must bring this summons with you and—  come to court to give evidence in the proceeding  come to court to give evidence and also produce at the hearing the following documents or things that are in your possession or control  produce at the hearing the following documents or things that are in your possession or control If you are required to give evidence, you must attend the hearing. If you fail to attend the hearing or give evidence in accordance with this summons a warrant for your arrest may be issued. You may produce this summons and the documents or things referred to above to the registrar of the Magistrates' Court at [venue] by hand or by post, in either case so that the registrar receives them not later than 2 days (excluding Saturdays, Sundays or other holidays) before the date on which you are required to attend. -- 10 of 12 -- Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 10 WHERE WILL THE CASE BE HEARD? The Magistrates' Court at [venue] Address: Phone: When Time: Day: Month: Year: Details about this summons Issued at: Date: Issued by: Registrar: Magistrate: Summons filed by: [identify party]". 17 Form 37 amended In Form 37 of the Principal Rules— (a) for "Rule 54" substitute "Rules 29A, 54"; (b) for "Section 141(2) substitute "Sections 68(1) and 141(2)"; (c) omit "and section 398 of the Crimes Act 1958". Dated: 19 May 2016 PETER LAURITSEN, Chief Magistrate LANCE MARTIN, Deputy Chief Magistrate JELENA POPOVIC, Deputy Chief Magistrate ═══════════════ -- 11 of 12 -- Endnotes Magistrates' Court Criminal Procedure (Amendment No. 6) Rules 2016 S.R. No. 45/2016 Authorised by the Chief Parliamentary Counsel 11 Endnotes 1 Rule 4: S.R. No. 181/2009. Reprint No. 1 as at 4 December 2014. Reprinted to S.R. No. 203/2014. Subsequently amended by S.R. No. 113/2015. -- 12 of 12 --