Supreme Court (Criminal Procedure Amendment) Rules 2010

i Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 TABLE OF PROVISIONS Rule Page PART 1—PRELIMINARY 1 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 2 PART 2—MISCELLANEOUS AMENDMENTS RELATING TO CRIMINAL PROCEDURE 3 5 New Rule 1.18 3 1.18 General applications 3 6 Certificate of conviction 3 7 Witnesses before Court of Appeal—section 318 3 8 Duties of prison officers 3 9 Order 3B re-enacted as Part 9 of Order 2 4 PART 9—OTHER APPLICATIONS TO COURT OF APPEAL 4 2.55 Application of Part 4 2.56 Application by summons 4 2.57 Service 4 2.58 Directions hearing 5 2.59 Court of Appeal may set aside or give directions 5 10 Definitions—Order 4 5 11 Case conference 5 12 New Rule 4.14 6 4.14 Summons or warrant when direct indictment filed 6 13 New Form 6–1C 6 Form 6–1C—General Application 6 14 New Forms 6–4G and 6–4H 7 Form 6–4G—Summons 7 Form 6–4H—Warrant to Arrest 8 -- 1 of 35 -- Rule Page ii PART 3—AMENDMENTS RELATING TO CHILDREN, YOUTH AND FAMILIES ACT 2005 10 15 Rules 3A.01 and 3A.02 substituted 10 3A.01 Application of Order and definitions 10 3A.02 Commencement of appeal on a question of law 10 16 Notice of appeal 11 17 Leave to appeal 11 18 Stay 11 19 Report 12 20 Order 3B substituted 12 ORDER 3B 12 APPEALS UNDER THE CHILDREN, YOUTH AND FAMILIES ACT 2005 OTHER THAN APPEALS ON A QUESTION OF LAW 12 3B.01 Application of Order 12 3B.02 Notice of appeal and undertaking to proceed with appeal 12 3B.03 Legal practitioner to notify that he or she acts 13 3B.04 Prothonotary to fix hearing 13 3B.05 Recording of decision on appeal under section 424 14 3B.06 Appeal by DPP against sentence 15 3B.07 Appeal by DPP under section 429A—failure to fulfil undertaking 15 3B.08 Abandonment of appeal 15 3B.09 Order striking out appeal 16 3B.10 Application to set aside order striking out appeal for failure to appear 16 3B.11 Original depositions, exhibits etc. 16 3B.12 Prothonotary to notify determination 17 3B.13 Certificate of conviction 17 3B.14 Fine and imprisonment in default—fine paid to be retained pending appeal 18 3B.15 Entitlement to hearing when restitution order or compensation order made 18 3B.16 Property subject to restitution order or compensation order 19 21 Forms for Order 3B 19 Form 6–3BA—Notice of Appeal and Undertaking to Proceed 19 Form 6–3BB—Notice of Supreme Court's Decision on Appeal 21 Form 6–3BC—Notice of Appeal by DPP Against Sentence Imposed by Children's Court 22 -- 2 of 35 -- Rule Page iii Form 6–3BD—Notice of Appeal by DPP Under section 429A of Children, Youth and Families Act 2005— Failure to Fulfil Undertaking 23 Form 6–3BE—Notice of Abandonment of Appeal under section 430C of the Children, Youth and Families Act 2005 24 Form 6–3BF—Written Notice of Abandonment of Appeal— Conviction Only—section 430C(3) of the Children, Youth and Families Act 2005 25 Form 6–3BG—Order Striking Out Appeal 26 Form 6–3BH—Application to Set Aside Order Striking Out Appeal for Failure to Appear 27 Form 6–3BI—Notification of Result of Appeal under Division 1 or 2 of Part 5.4 of Chapter 5 of the Children, Youth and Families act 2005 28 PART 4—AMENDMENT OF CHAPTER I 29 22 Application of Part 3 of Order 58 of Chapter I 29 23 Application of Part 5 of Order 58 of Chapter I 29 24 Abandonment of appeal 29 25 Recording of decision on appeal under section 424 29 26 Forms for Order 58 amended 29 ═══════════════ ENDNOTES 32 -- 3 of 35 -- 1 STATUTORY RULES 2010 S.R. No. 55/2010 Supreme Court Act 1986 Children, Youth and Families Act 2005 Criminal Procedure Act 2009 Supreme Court (Criminal Procedure Amendment) Rules 2010 The Judges of the Supreme Court make the following Rules: PART 1—PRELIMINARY 1 Object The object of these Rules is— (a) to further amend the Rules of the Supreme Court as a consequence of the enactment of the Criminal Procedure Act 2009 and the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009; and (b) to make other miscellaneous amendments. 2 Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, the Criminal Procedure Act 2009, the Children, Youth and Families Act 2005 and all other enabling powers. 3 Commencement These Rules come into operation on 1 July 2010. -- 4 of 35 -- Part 1—Preliminary Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 2 4 Principal Rules In these Rules, the Supreme Court (Criminal Procedure) Rules 2008 1 are called the Principal Rules. __________________ r. 4 -- 5 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 3 PART 2—MISCELLANEOUS AMENDMENTS RELATING TO CRIMINAL PROCEDURE 5 New Rule 1.18 After Rule 1.17 of the Principal Rules insert— "1.18 General applications If a party to a criminal proceeding intends to make an application and there is no form prescribed by any Rules or by or under any Act for such an application, a general application in Form 6–1C may be used with such modification as is necessary.". 6 Certificate of conviction In Rule 2.35 of the Principal Rules for "21" (where twice occurring) substitute "35". 7 Witnesses before Court of Appeal—section 318 For Rule 2.44(4) of the Principal Rules substitute— "(4) The oath or affirmation to be administered to any witness whose evidence is to be tendered under section 318 of the Act shall be in accordance with the Evidence Act 2008, unless the Court otherwise permits or directs.". 8 Duties of prison officers In Rule 2.53(1) of the Principal Rules— (a) paragraph (a) is revoked; (b) in paragraph (b) omit "on any other ground"; (c) in paragraph (c)— (i) omit "to appeal or"; (ii) omit "notice of appeal or". r. 5 -- 6 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 4 9 Order 3B re-enacted as Part 9 of Order 2 In Order 2 of the Principal Rules after Part 8 insert— "PART 9—OTHER APPLICATIONS TO COURT OF APPEAL 2.55 Application of Part This Part applies if— (a) a party seeks to make an application to the Court of Appeal that is not otherwise dealt with by these Rules; and (b) the Rules make no provision for such application. 2.56 Application by summons (1) An application under this Part shall be made by summons for directions returnable before the Registrar supported by affidavit. (2) The application is taken to be made when the summons is filed. 2.57 Service The applicant shall serve the summons for directions and any accompanying affidavit on each respondent— (a) within three days of filing the application; or (b) within such other time as the Registrar by order provides. r. 9 -- 7 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 5 2.58 Directions hearing (1) At the directions hearing, the Registrar may give any directions for the conduct of the application which the Registrar thinks conducive to its effective, prompt and economical determination. (2) The Registrar may make such order for costs as he or she thinks fit in relation to the exercise of any power conferred upon him or her under this Part. 2.59 Court of Appeal may set aside or give directions The Court of Appeal, on application by any party to the application, may— (a) set aside or vary any direction given or order made by the Registrar; and (b) give directions in relation to the application. 10 Definitions—Order 4 In Rule 4.01 of the Principal Rules for the definition of CTLD substitute— "CTLD means the person or persons nominated by the Chief Justice or his or her nominee as the person or persons responsible for criminal listings in the Supreme Court;". 11 Case conference In the Schedule to Rule 4.08 of the Principal Rules, after clause 25 insert— "26. Does the accused intend to make application for any summary charges to be transferred from the Magistrates' Court to be heard pursuant to section 243 of the Act? r. 10 -- 8 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 6 27. Has consideration been given to how any related summary offences are to be dealt with following trial?". 12 New Rule 4.14 After Rule 4.13 of the Principal Rules insert— "4.14 Summons or warrant when direct indictment filed (1) A summons under section 174(2)(a) of the Act must be in Form 6–4G. (2) A warrant to arrest under section 174(2)(b) of the Act must be in Form 6–4H. (3) An application for a summons or warrant to arrest under section 174(1) of the Act must be made at the time of filing the direct indictment to which the application relates, unless the circumstances of the case require a later application. (4) A summons or warrant to arrest under section 174(2)(a) or (b) of the Act must be issued by a Judge of the Court.". 13 New Form 6–1C After Form 6–1B of the Principal Rules insert— "__________________ Rule 1.18 FORM 6–1C IN THE SUPREME COURT OF VICTORIA AT IN THE MATTER OF: GENERAL APPLICATION TO the Prothonotary: AND TO the respondent: [name] of [address] r. 12 -- 9 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 7 I wish to apply for the following order: This application is made on the grounds that: [insert as applicable] This application is *by consent/*contested. Date: [Signature of Applicant/ Applicant's Legal Practitioner] LISTING OF APPLICATION This application is listed for hearing before the Supreme Court at [place] at [time] a.m./p.m. on [date]. Date: Prothonotary *delete if not applicable __________________". 14 New Forms 6–4G and 6–4H After Form 6–4F of the Principal Rules insert— "Rule 4.14 FORM 6–4G IN THE SUPREME COURT OF VICTORIA AT INDICTMENT No.: SUMMONS To the accused: Address of accused: Date of birth of accused: † Male † Female Details of case A direct indictment has been filed against you in relation to the following charges: A copy of the indictment is attached to this summons. The indictment was filed at the Supreme Court on [date]. r. 14 -- 10 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 8 Date: [Signature of DPP/ Crown Prosecutor] Listing of case You must attend at the Supreme Court at [place] on [date] at [time] a.m./p.m. Address of Court: Court contact number: Details about this summons Issued at [place] On [date] [Signature of Judge] __________________ Rule 4.14 FORM 6–4H IN THE SUPREME COURT OF VICTORIA AT INDICTMENT No.: WARRANT TO ARREST To the accused: Address of accused: Date of birth of accused: † Male † Female Details of case A direct indictment has been filed against you in relation to the following charges: A copy of the indictment is attached to this warrant. The indictment was filed at the Supreme Court on [date]. Date: [Signature of DPP/ Crown Prosecutor] r. 14 -- 11 of 35 -- Part 2—Miscellaneous Amendments Relating to Criminal Procedure Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 9 Warrant to arrest To all members of the police force or [insert name of member of the police force to whom warrant is directed or name of any other person authorised by law to execute a warrant to arrest]. You are authorised to break, enter and search any place where the person named in this warrant is suspected to be, to arrest that person and bring him or her before the Court as soon as practicable to be dealt with according to law. I am satisfied by the evidence before me that a warrant should be issued on the following grounds: *it is probable the person will not answer a summons *the person has absconded or is likely to abscond *the person is avoiding the service of a summons *the warrant is *required/*authorised by another Act/*other good cause Details about this warrant Issued at [place] On [date] *delete if not applicable [Signature of Judge] __________________". __________________ r. 14 -- 12 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 10 PART 3—AMENDMENTS RELATING TO CHILDREN, YOUTH AND FAMILIES ACT 2005 15 Rules 3A.01 and 3A.02 substituted For Rules 3A.01 and 3A.02 of the Principal Rules substitute— "3A.01 Application of Order and definitions (1) This Order applies to an appeal or an application for leave to appeal on a question of law— (a) under Part 6.2 of Chapter 6 of the Criminal Procedure Act 2009; (b) under Division 5 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005; or (c) to which, by another Act, Part 6.2 of Chapter 6 of the Criminal Procedure Act 2009 or Division 5 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 applies. (2) In this Order, unless the context or subject matter otherwise requires, the Act means the Criminal Procedure Act 2009. 3A.02 Commencement of appeal on a question of law An appeal to which this Order applies is commenced by filing a notice of appeal in the Trial Division. Note Section 272(3) of the Criminal Procedure Act 2009 and section 430P of the Children, Youth and Families Act 2005 require the notice of appeal to be filed within 28 days after the day on which the order complained of was made.". r. 15 -- 13 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 11 16 Notice of appeal (1) In Rule 3A.03 of the Principal Rules— (a) in paragraph (1) after "the Act" insert "or section 430P of the Children, Youth and Families Act 2005"; (b) in paragraph (2)(a) for "Magistrates' Court" substitute "court". (2) For Rule 3A.03(3) of the Principal Rules substitute— "(3) The requirements under paragraph (2) are in addition to the requirements of— (a) section 272(4) and (5) of the Act, in the case of an appeal or application for leave to appeal under Part 6.2 of Chapter 6 of the Act; and (b) section 430P(4) and (5) of the Children, Youth and Families Act 2005, in the case of an appeal or application for leave to appeal under Division 5 of Part 5.4 of Chapter 5 of that Act.". 17 Leave to appeal In the note at the foot of Rule 3A.06 of the Principal Rules, for "sets" substitute "and section 430P(7) of the Children, Youth and Families Act 2005 set". 18 Stay In the note at the foot of Rule 3A.07 of the Principal Rules, after "Act" insert "and section 430P(6) and (11) of the Children, Youth and Families Act 2005". r. 16 -- 14 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 12 19 Report In Rule 3A.09 of the Principal Rules for "Magistrates' Court" substitute "court". 20 Order 3B substituted For Order 3B of the Principal Rules substitute— "ORDER 3B APPEALS UNDER THE CHILDREN, YOUTH AND FAMILIES ACT 2005 OTHER THAN APPEALS ON A QUESTION OF LAW 3B.01 Application of Order This Order applies to appeals to the Trial Division under Divisions 1, 2 and 2A of Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 from the Children's Court constituted by the President of that Court. 3B.02 Notice of appeal and undertaking to proceed with appeal A notice of appeal under section 425 of the Children, Youth and Families Act 2005 and undertaking to proceed with the appeal shall be in Form 6–3BA. Note Section 425 of the Children, Youth and Families Act 2005 provides for the notice of appeal to be filed in the Children's Court within 28 days after the Children's Court imposes the sentence and requires service of a copy on the respondent within 7 days of being filed. r. 19 -- 15 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 13 3B.03 Legal practitioner to notify that he or she acts (1) If a legal practitioner is engaged to act on behalf of an appellant or a respondent to an appeal to which this Order applies, the legal practitioner shall without delay notify the Prothonotary in writing that he or she so acts and furnish an address for service. (2) If a legal practitioner ceases to act on behalf of an appellant or a respondent or the address for service is changed, the legal practitioner shall without delay so notify the Prothonotary in writing. 3B.04 Prothonotary to fix hearing (1) The Prothonotary shall— (a) fix the date and place for hearing of the appeal; and (b) notify in writing each party and each legal practitioner who has given notice under Rule 3B.03 of the date and place of hearing a reasonable time before the hearing. (2) Notification in writing under paragraph (1)(b) may be— (a) by pre-paid ordinary mail; or (b) where a legal practitioner for a party has facilities for the reception of documents in a document exchange, by delivering the notification into those facilities. r. 20 -- 16 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 14 3B.05 Recording of decision on appeal under section 424 (1) When an appeal under section 424 of the Children, Youth and Families Act 2005 is determined— (a) the Associate to the Judge of the Court who heard the appeal shall record the sentence or particulars of the decision, in quadruplicate, in Form 6–3BB; and (b) that record shall constitute the final record of the order of the Court on the appeal. (2) If a number of appeals is heard together, it is not necessary to record the sentence or particulars required by paragraph (1) on separate forms for each appeal but it is necessary for the sentence or such particulars in respect of each charge to be recorded in full. (3) The Associate to the Judge of the Court shall deliver— (a) three copies of the record of the order of the Court to the Prothonotary who shall— (i) file one copy; (ii) send one copy to the registrar of the Children's Court at the venue of the court from which the appeal was brought; and (iii) if the appellant is required to serve a term of detention, deliver one copy to the person responsible for keeping the appellant; and r. 20 -- 17 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 15 (b) if the appellant is required to serve a term of detention, one copy of the record of the order of the Court to the prison officer responsible for conveying the appellant to the place of detention. (4) The record shall be sufficient to authorise the keeping of the appellant for the period and in the manner set out in the record. 3B.06 Appeal by DPP against sentence A notice of appeal under section 428 of the Children, Youth and Families Act 2005 shall be in Form 6–3BC. Note Section 428 of the Children, Youth and Families Act 2005 provides for the notice of appeal to be filed in the Children's Court within 28 days after the Children's Court imposes the sentence and requires service of a copy on the respondent within 7 days of being filed. 3B.07 Appeal by DPP under section 429A— failure to fulfil undertaking A notice of appeal under section 429B of the Children, Youth and Families Act 2005 shall be in Form 6–3BD. Note Section 429B(2) of the Children, Youth and Families Act 2005 provides for the notice of appeal to be served personally on the respondent within 14 days after the notice is filed in the Children's Court. 3B.08 Abandonment of appeal (1) A notice of abandonment of appeal shall be in Form 6–3BE. (2) Written notice under section 430C(3) of the Children, Youth and Families Act 2005 shall be in Form 6–3BF. r. 30 -- 18 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 16 (3) When a notice of abandonment of appeal is filed, the Prothonotary shall make an order striking out the appeal. 3B.09 Order striking out appeal (1) An order under section 430C or 430D of the Children, Youth and Families Act 2005 striking out an appeal shall be in Form 6–3BG. (2) The Prothonotary shall cause a copy of the order to be forwarded to the registrar of the Children's Court at the venue of the court from which the appeal was brought. 3B.10 Application to set aside order striking out appeal for failure to appear An application to set aside an order striking out an appeal because of the failure of the appellant to appear may be in Form 6–3BH. 3B.11 Original depositions, exhibits etc. The Court may require the recording officer of the Children's Court to provide to the Court— (a) the original depositions of witnesses examined before the Children's Court; (b) any exhibit retained by the Children's Court; (c) the indictment or other written process against the appellant; (d) an abstract or copy of the whole or part of the indictment; (e) any plea filed in the Children's Court. r. 30 -- 19 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 17 3B.12 Prothonotary to notify determination (1) When an appeal to which this Order applies is determined by the Court, the Prothonotary shall give notice in Form 6–3BI to— (a) the appellant; (b) the DPP or the Director of Public Prosecutions of the Commonwealth (as the case requires); (c) the superintendant of the remand centre, youth residential centre, youth justice centre or prison in which the appellant is in custody; (d) the Secretary to the Department of Justice; and (e) the relevant officer of the Children's Court. (2) The Prothonotary shall also notify the relevant officer of the Children's Court of any additional orders or directions made or given by the Court in relation to the appeal. 3B.13 Certificate of conviction (1) The recording officer of the Children's Court may not issue a certificate of conviction until— (a) 35 days after the date of conviction; or (b) if the recording officer receives notice from the Prothonotary that a notice of appeal or of application for leave to appeal has been filed, the determination of the appeal or dismissal of the application. r. 30 -- 20 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 18 (2) A person who seeks a certificate of conviction may obtain a certificate from the Prothonotary stating that no appeal or application for leave to appeal is pending. (3) A certificate under paragraph (2) may not be given until 35 days after the date of conviction. 3B.14 Fine and imprisonment in default—fine paid to be retained pending appeal (1) If a person has been convicted and sentenced to pay a fine and in default of payment sentenced to imprisonment, the person authorised to receive the fine shall retain it until determination of any related appeal. (2) Subject to any order of the Court, a person who has paid a fine in accordance with a sentence shall, if the appeal is successful, be entitled to the return of the fine paid. (3) A person who remains in custody in default of payment of a fine shall be taken to be a person sentenced to imprisonment for the purposes of the Children, Youth and Families Act 2005 and this Order. 3B.15 Entitlement to hearing when restitution order or compensation order made If an order referred to in section 430Z(1) of the Children, Youth and Families Act 2005 was made at a trial— (a) a person against whom the order was made; (b) a person in whose favour the order was made; and r. 30 -- 21 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 19 (c) with the leave of the Court, any other person— may be heard by the Court before any direction under section 430Z(2) of that Act is given. 3B.16 Property subject to restitution order or compensation order For the purposes of section 430Z(5) of the Children, Youth and Families Act 2005, the Court may give any direction considered proper— (a) for securing the safe custody during the appeal period of property or of a money sum the subject of a restitution order or compensation order; or (b) as to the production of any such property or money sum at an appeal. __________________". 21 Forms for Order 3B After Form 6–3B of the Principal Rules insert— "Rule 3B.02 FORM 6–3BA NOTICE OF APPEAL AND UNDERTAKING TO PROCEED TO the Registrar of the Children's Court at: TO the Prothonotary at: AND TO the respondent [name]: I WISH TO APPEAL against a decision of the Children's Court at [place] on [date]. r. 21 -- 22 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 20 The details of the charges and sentences/order imposed were: Charge Sentence/Order I am appealing against: *conviction and sentence *sentence alone The grounds of the appeal are: [state specifically and concisely and not merely in general terms the grounds of the application] Date: [Signature of Appellant] * Delete if inapplicable. PARTICULARS 1. Name and address of the appellant: 2. Name and address of the respondent: 3. Offence for which convicted and in relation to which it is sought to appeal: 4. Convicted at: [place and court] 5. Sentencing Judge: 6. Date of conviction: 7. Sentence: 8. Date of sentence: 9. Name and address of legal practitioner who represented appellant at trial: 10. Name of counsel (if any) who represented appellant at trial: 11. State whether you wish to— (a) personally attend the hearing of this proceeding; or (b) appear by audio visual link at the hearing of this proceeding. r. 21 -- 23 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 21 UNDERTAKING TO PROCEED WITH APPEAL I, [name] of [address] undertake: (a) to appear at the Supreme Court at a place and on a day to be fixed by the Court and to appear for the duration of the appeal; and (b) to notify the Prothonotary in writing without delay of any change of address from that appearing in the notice of appeal. Date: [Signature of appellant] __________________ Rule 3B.05 FORM 6–3BB NOTICE OF SUPREME COURT'S DECISION ON APPEAL TO the Prothonotary at: TO the Registrar of the Children's Court at: Regarding an appeal against the order(s) recorded at the Children's Court at [place] on [date] [specify order(s) the subject of the appeal] Result of Appeal/Application The result of the appeal is: Offence/Type of Order Original Sentence/Order Decision on Appeal The order was made by Justice [name of Judge] on [date]. Associate __________________ r. 21 -- 24 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 22 Rule 3B.06 FORM 6–3BC NOTICE OF APPEAL BY DPP AGAINST SENTENCE IMPOSED BY CHILDREN'S COURT TO: the Registrar of the Children's Court: AND TO: the respondent I, [full name], the DPP wish to appeal under section 427 of the Children, Youth and Families Act 2005 against a sentence imposed by the Children's Court in a summary proceeding in the Criminal Division of that Court. TAKE NOTICE that I apply to the Trial Division of the Supreme Court to appeal against the sentence imposed on [name of offender] of [address of offender] on the ground(s) set out below: The ground(s) of my appeal are: [state the general grounds of the appeal] I am satisfied that the appeal should be brought in the public interest. Date: [Signed by or on behalf of DPP] PARTICULARS 1. Name of offender on whom sentence imposed: 2. Offence for which offender convicted and sentenced to which this appeal relates: 3. Convicted at: [place and court] 4. Trial Judge: 5. Date of conviction: 6. Sentence: 7. Date of sentence: 8. Name and address of legal practitioner who represented offender at trial: r. 21 -- 25 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 23 9. Name of counsel (if any) who represented offender at trial: __________________ Rule 3B.07 FORM 6–3BD NOTICE OF APPEAL BY DPP UNDER SECTION 429A OF CHILDREN, YOUTH AND FAMILIES ACT 2005—FAILURE TO FULFIL UNDERTAKING TO: the Registrar of the Children's Court: AND TO: the respondent I, [full name], the DPP wish to appeal under section 429A of the Children, Youth and Families Act 2005 against the sentence imposed by the Children's Court on [name of offender] of [address]. TAKE NOTICE that I apply to the Supreme Court on the ground(s) set out below: The ground(s) of my appeal are that the offender was convicted of an indictable offence that was heard and determined summarily by the Children's Court and received a less severe sentence because of an undertaking given to assist law enforcement authorities after sentence and that person has failed to fulfil that undertaking. [state the general grounds of the appeal] Date: [Signed by or on behalf of DPP] PARTICULARS 1. Name of offender on whom sentence imposed: 2. Offence for which offender convicted and sentenced to which this appeal relates: 3. Convicted at: [place and court] 4. Sentencing Judge: 5. Date of conviction: 6. Sentence: r. 21 -- 26 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 24 7. Date of sentence: 8. Name and address of legal practitioner who represented offender at trial: 9. Name of counsel (if any) who represented offender at trial: Date: [Signed personally by DPP] __________________ Rule 3B.08(1) FORM 6–3BE NOTICE OF ABANDONMENT OF APPEAL UNDER SECTION 430C OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 IN THE SUPREME COURT OF VICTORIA AT TO the Prothonotary: AND TO the respondent [name] of [address]: I wish to abandon my appeal against *conviction/*sentence in the Children's Court at [place] on [date]. I acknowledge that the *conviction/*sentence appealed from will take effect immediately upon lodging this form. PARTICULARS 1. Name and address of the appellant: 2. Name and address of the respondent: 3. Offence for which convicted and in relation to which the appeal relates: 4. Convicted at: [place and court] 5. Sentencing Judge: 6. Date of *conviction/*sentence: 7. Sentence: 8. Children's Court reference number: r. 21 -- 27 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 25 Date: [Signature of appellant] * Delete if inapplicable. __________________ Rule 3B.08(2) FORM 6–3BF WRITTEN NOTICE OF ABANDONMENT OF APPEAL—CONVICTION ONLY—SECTION 430C(3) OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 IN THE SUPREME COURT OF VICTORIA AT TO the Prothonotary: AND TO the respondent [name] of [address] An appeal was lodged against a decision of the Children's Court at [place] on [date]. I abandon my appeal against conviction. I wish to proceed only with my appeal against sentence. PARTICULARS 1. Name and address of the appellant: 2. Name and address of the respondent: 3. Offence for which convicted and in relation to which the appeal relates: 4. Convicted at: [place and court] 5. Sentencing Judge: 6. Date of order: 7. Sentence: 8. Children's Court reference number: r. 21 -- 28 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 26 Date: [Signature of appellant] * Delete if inapplicable. __________________ Rule 3B.09(1) FORM 6–3BG IN THE SUPREME COURT OF VICTORIA AT IN THE MATTER OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 AND IN THE MATTER OF AN APPEAL BY [name of appellant] ORDER STRIKING OUT APPEAL *JUDGE//*PROTHONOTARY DATE MADE: ORIGINATING PROCESS: ATTENDANCE: OTHER MATTERS: The Appellant *failed to appear at the time listed for the hearing of the appeal OR *abandoned the appeal in accordance with section 430C of the Children, Youth and Families Act 2005. THE COURT ORDERS THAT the appeal be struck out. [When a custodial order was imposed in the Children's Court—the Appellant *has/*has not been returned to custody] Date: [Signature of*Judge of the Court/*Prothonotary] * Delete if not applicable. r. 21 -- 29 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 27 A copy of this order is to be provided to: The Children's Court The respondent or to the respondent's legal practitioner. __________________ Rule 3B.10 FORM 6–3BH APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR Appeal No.: TO The Prothonotary AND TO the respondent [name] of [address] An appeal was lodged against a decision of the Children's Court at [place] on [date] The Children's Court reference number is: I APPLY for an order to set aside the order striking out my appeal for my failure to appear made by the Supreme Court on [insert date of order]. The application is made on the ground that my failure to appear was not due to fault or neglect on my part. [Give details of reasons for non-appearance] Date: [Signature of Appellant] Notice of this application must be served on the respondent a reasonable time before making of the application and in the same way as a notice of appeal—section 430D(4) and (5) of the Children, Youth and Families Act 2005. If the Supreme Court grants the application it must order the reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require the appellant to give a further undertaking to prosecute the appeal. –––––––––––––––––––––––––––––––––––––––––––––––– r. 21 -- 30 of 35 -- Part 3—Amendments Relating to Children, Youth and Families Act 2005 Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 28 Listing of application: This application is listed for hearing before the Supreme Court at [place] at [time] a.m./p.m. on [date]. Date: Prothonotary *delete if not applicable __________________ Rule 3B.12 FORM 6–3BI NOTIFICATION OF RESULT OF APPEAL UNDER DIVISION 1 OR 2 OF PART 5.4 OF CHAPTER 5 OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005 In the case of R v. [name of appellant] TAKE NOTICE that the Trial Division of the Supreme Court has considered the appeal under *section 424/*section 427 of the Children, Youth And Families Act 2005 and has decided [complete appropriately]. Date: [Signed] Prothonotary –––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________". __________________ r. 21 -- 31 of 35 -- Part 4—Amendment of Chapter I Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 29 PART 4—AMENDMENT OF CHAPTER I 22 Application of Part 3 of Order 58 of Chapter I In Rule 58.06(b) of the Supreme Court (General Civil Procedure) Rules 2005 2 omit "or 427". 23 Application of Part 5 of Order 58 of Chapter I (1) In the heading to Part 5 of Order 58 of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005, for "SECTIONS 328 AND 424" substitute "SECTION 328". (2) In Rule 58.22 of the Supreme Court (General Civil Procedure) Rules 2005, omit "or 424". 24 Abandonment of appeal (1) Rule 58.27(1) of the Supreme Court (General Civil Procedure) Rules 2005 is revoked. (2) In Rule 58.27(2) of the Supreme Court (General Civil Procedure) Rules 2005 omit "other". 25 Recording of decision on appeal under section 424 Rule 58.29 of the Supreme Court (General Civil Procedure) Rules 2005 is revoked. 26 Forms for Order 58 amended In the Supreme Court (General Civil Procedure) Rules 2005— (a) in Form 58B— (i) omit "or section 424"; (ii) for "be present" (where twice occurring) substitute "appear"; (iii) omit the words and expression commencing "[Qualification of witness" and ending "Children, Youth and Families Act 2005]"; r. 22 -- 32 of 35 -- Part 4—Amendment of Chapter I Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 30 (b) Form 58C is revoked; (c) in Form 58D— (i) omit "[Other than when sentence of detention imposed]"; (ii) for "*Date of charge(s):" substitute "*Date of application/order to which appeal relates:"; (iii) for "*Nature of offence" substitute "Nature of application/order (e.g. protection order, irreconcilable differences application, therapeutic treatment order etc.)"; (d) in Form 58G omit "—section 89 of the Magistrates' Court Act 1989"; (e) in Form 58H— (i) omit "—section 89A(6) of the Magistrates' Court Act 1989"; (ii) omit "—section 89A(4)(a) of the Magistrates' Court Act 1989"; (iii) omit "—section 89A(4)(b) of the Magistrates' Court Act 1989"; (iv) omit "—section 89A(5)(a) and (b) of the Magistrates' Court Act 1989"; (v) omit "—section 89A(5)(c) of the Magistrates' Court Act 1989"; (f) in Form 58J omit "—section 89A(3) of the Magistrates' Court Act 1989". r. 26 -- 33 of 35 -- Part 4—Amendment of Chapter I Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 31 Dated: 24 June 2010 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. PETER BUCHANAN, J.A. GEOFFREY NETTLE, J.A. DAVID ASHLEY, J.A. MARCIA NEAVE, J.A. PHILIP MANDIE, J.A. BERNARD D. BONGIORNO, J.A. D. L. HARPER, J.A. H. R. HANSEN, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. STEPHEN KAYE, J. ELIZABETH HOLLINGWORTH, J. KEVIN H. BELL, J. ANTHONY CAVANOUGH, J. TONY PAGONE, J. JAMES JUDD, J. EMILIOS KYROU, J. DAVID F. R. BEACH, J. JENNIFER DAVIES, J. KARIN EMERTON, J. ═══════════════ r. 26 -- 34 of 35 -- Supreme Court (Criminal Procedure Amendment) Rules 2010 S.R. No. 55/2010 32 ENDNOTES 1 Rule 4: S.R. No. 12/2008 as amended by S.R. Nos 100/2008, 118/2008, 150/2008, 98/2009, 99/2009, 132/2009, 146/2009 and 23/2010. 2 Rule 22: S.R. No. 148/2005. Reprint No. 2 incorporating amendments as at 1 November 2009. Reprinted to S.R. No. 109/2009 and subsequently amended by S.R. Nos 60/2009, 97/2009, 132/2009, 144/2009, 146/2009, 22/2010 and 23/2010. Endnotes -- 35 of 35 --