Magistrates' Court (Committals) Rules 2009

i Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 1.01 Object 1 1.02 Authorising provision 1 1.03 Commencement 1 1.04 Revocation 1 1.05 Application of Rules 2 1.06 Definition 2 1.07 Extension and abridgement 2 ORDER 2 2 APPEARANCE 2 2.01 Notice of appearance 2 2.02 Prosecution to provide relevant contact details 3 2.03 Legal practitioner ceasing to act 4 ORDER 3 4 SERVICE 4 3.01 Mode of service 4 3.02 Copy of document served by electronic transmission to be provided upon request 4 ORDER 4 5 FILING HEARINGS AND COMMITTAL MENTION HEARINGS 5 4.01 Charge to be filed with the registrar 5 4.02 Registrar to fix date for filing hearing 5 4.03 Further date for filing hearing 5 4.04 Orders and directions at filing hearing 5 4.05 Notice of committal mention hearing 6 4.06 Application to Court to fix a longer period for the holding of a committal mention hearing 6 -- 1 of 46 -- Rule Page ii ORDER 5 7 APPLICATIONS 7 5.01 Application of Order 7 5.02 Form of application 7 5.04 Filing of application 7 5.05 Service of application 7 ORDER 6 7 SPECIAL MENTION HEARING 7 6.01 Fixing of a special mention hearing 7 6.04 Parties may request registrar to cancel a special mention hearing 8 6.05 Application to be excused from attending special mention hearing 8 ORDER 7 8 HAND-UP BRIEFS 8 7.00 Notice specifying committal mention date, nature of a committal proceeding etc. 8 7.01 Material to be included in a hand-up brief 9 ORDER 8 9 DEFENCE NOTICE 9 8.01 Defence notice in response to hand-up brief 9 ORDER 9 10 OBJECTION BY INFORMANT TO DEFENCE NOTICE 10 9.03 Objection by informant to production of certain material 10 ORDER 10 10 CASE DIRECTION NOTICE 10 10.01 Prescribed form 10 ORDER 11 10 COMPULSORY EXAMINATION PROCEDURE 10 11.01 Form of application 10 11.02 Form of notice of order 11 11.03 Service of notice of order 11 11.04 Prescribed information 11 -- 2 of 46 -- Rule Page iii ORDER 11A 12 EVIDENCE TAKEN AFTER DEFENDANT DIRECTED TO BE TRIED 12 11A.01 Form of notice of application 12 11A.02 Response to notice of application 12 ORDER 12 13 MISCELLANEOUS 13 12.02 Caution to be given to person charged 13 12.03 Alibi caution 13 12.03.1 Plea caution 13 12.04 Witnessing of statements 13 12.05 Statements prepared in another jurisdiction 17 __________________ FORMS 18 Form 2A—Appearance 18 Form 4A—Notice of Committal Proceedings 19 Form 4B—Application for the Fixing of a Longer or Shorter Period for the Holding of a Committal Mention Hearing 21 Form 5A—Application 22 Form 7—Hand-up Brief of Evidence and Notice of Committal Mention Date 23 Form 7A—List of Material Included in Hand-up Brief 26 Form 8A—Notice of Defendant in Response to Hand-up Brief 28 Form 9A—Notice by Informant of Objection to the Production of an Item Listed in Hand-up Brief 29 Form 10A—Case Direction Notice 30 Form 11A—Application for Compulsory Examination 33 Form 11B—Notice of Order 34 Form 11C—Notice of Order 36 Form 11AA—Notice of Application for Order that the Evidence of a Person be Taken 37 Form 11AB—Response to Notice of Application for Order that the Evidence of a Person be Taken 38 Form 12B—Caution to be Given to Person Charged 39 -- 3 of 46 -- Rule Page iv Form 12C—Alibi Caution 40 Form 12D—Plea Caution 41 ═══════════════ ENDNOTES 42 -- 4 of 46 -- 1 STATUTORY RULES 2009 S.R. No. 83/2009 Magistrates' Court Act 1989 Magistrates' Court (Committals) Rules 2009 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: ORDER 1 PRELIMINARY 1.01 Object The object of these Rules is to provide certain procedures and forms for committal proceedings in the Court. 1.02 Authorising provision These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 1.03 Commencement These Rules come into operation on 28 July 2009. 1.04 Revocation The following Rules are revoked— (a) Magistrates' Court (Committals) Rules 1999 1 ; (b) Magistrates' Court (Committals) (Amendment) Rules 1999 2 ; (c) Magistrates' Court (Committals) (Amendment) Rules 2001 3 ; -- 5 of 46 -- Order 2 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 2 (d) Magistrates' Court (Committals) (Amendment) Rules 2007 4 ; (e) Magistrates' Court (Committals) Amendment Rules 2008 5 ; (f) Magistrates' Court (Committals) Further Amendment Rules 2008 6 . 1.05 Application of Rules These Rules apply to charges filed in the Court, whether before or after the commencement, and anything done in a proceeding under the Magistrates' Court (Committals) Rules 1999 is taken to have been done under these Rules. 1.06 Definition In these Rules— the Act means the Magistrates' Court Act 1989. 1.07 Extension and abridgement (1) Except as the Act otherwise provides, the Court may extend or abridge any time fixed by or under these Rules. (2) The Court may extend time under subrule (1) before or after the time expires whether or not an application for the extension is made before the time expires. ORDER 2 APPEARANCE 2.01 Notice of appearance (1) A legal practitioner who— (a) intends to appear for a defendant; or (b) represents a defendant; or r. 1.05 -- 6 of 46 -- Order 2 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 3 (c) is willing to accept service of documents on behalf of a defendant— in a committal proceeding must file in the Court and serve on the informant and the Director of Public Prosecutions or other person or body authorised at law to prosecute in the committal proceeding a Notice of Appearance in Form 2A. (2) The filing and service of a Notice of Appearance required by subrule (1) must take place no later than 21 days before the first committal mention date. 2.02 Prosecution to provide relevant contact details (1) Within 5 days after receiving a Notice of Appearance, the Director of Public Prosecutions or the other person or body authorised at law to prosecute in the committal proceeding must advise the legal practitioner of the following relevant contact details— (a) the name of the prosecutor handling the matter; and (b) either a fax number or an email address (or both) for the service of documents on the Director of Public Prosecutions or the other person or body authorised at law to prosecute in the committal proceeding; and (c) either a fax number or an email address (or both) for the service of documents on the informant. (2) If 20 days before the committal mention date the Director of Public Prosecutions or other person or body authorised at law to prosecute in the committal proceeding has not received a Notice of Appearance, the Director of Public Prosecutions or the other person or body must advise the Court of the relevant contact details. r. 2.02 -- 7 of 46 -- Order 3 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 4 2.03 Legal practitioner ceasing to act If a legal practitioner ceases to act for a party in a committal proceeding, the legal practitioner must as soon as possible file notice in the Court that he or she has ceased to act and serve a copy on the informant and the Director of Public Prosecutions or other person or body authorised at law to prosecute in the committal proceeding. ORDER 3 SERVICE 3.01 Mode of service In a committal proceeding, service of a document by a party may be effected— (a) on a defendant, by facsimile transmission or electronic transmission by sending the document to the facsimile number or email address of the defendant's legal practitioner as advised in Form 2A; (b) on the informant, by facsimile transmission or electronic transmission by sending the document to a facsimile number or email address supplied by the informant; (c) on the Director of Public Prosecutions or other person or body authorised at law to prosecute in the committal proceeding, by sending the document to the facsimile number or email address as advised under Rule 2.02. 3.02 Copy of document served by electronic transmission to be provided upon request The original document, a copy of which was served by facsimile transmission or electronic transmission, must be retained by the party r. 2.03 -- 8 of 46 -- Order 4 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 5 serving the document and must be provided to the Court if the Court so requests. ORDER 4 FILING HEARINGS AND COMMITTAL MENTION HEARINGS 4.01 Charge to be filed with the registrar A charge in a committal proceeding must be filed with the registrar as soon as practicable after the charge is laid. 4.02 Registrar to fix date for filing hearing On the filing of the charge, the registrar must fix a date for a filing hearing in the proceeding and the date must be— (a) if a defendant has been arrested and is either remanded in custody or granted bail in the proceeding—a day that is within 7 days after the filing of the charge; or (b) if a summons to answer to a charge is issued—a day that is within 4 weeks after the issue of the summons. 4.03 Further date for filing hearing If it appears to the Court at a filing hearing that a summons to which section 34(1)(a)(i) of the Act applies has not been served in accordance with that section, the Court may fix a further date for the filing hearing. 4.04 Orders and directions at filing hearing If the defendant appears personally or is represented by a legal practitioner at a filing hearing, whether or not any requirement of section 34(1) of the Act has been complied with, the Court may— r. 4.01 -- 9 of 46 -- Order 4 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 6 (a) subject to clause 4(2) of Schedule 5 to the Act, fix a committal mention date on a day that is within 12 weeks after the commencement of the proceeding or on such other day as the Court deems appropriate; (b) fix a longer or shorter period for the holding of a committal mention hearing in accordance with clause 4(3) of Schedule 5 to the Act; (c) subject to clause 7(1) of Schedule 5 to the Act, fix a time for service of a hand-up brief; (d) give such directions as it considers are necessary, in the interests of justice. 4.05 Notice of committal mention hearing On the conclusion of the filing hearing, the registrar must hand to the defendant a notice in Form 4A. 4.06 Application to Court to fix a longer period for the holding of a committal mention hearing If the Court has fixed a committal mention date, an application under clause 4(3) of Schedule 5 to the Act for the Court to fix a longer period for the holding of a committal mention hearing than that set out in clause 4(2) of the Schedule must be in Form 4B. r. 4.05 -- 10 of 46 -- Order 5 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 7 ORDER 5 APPLICATIONS 5.01 Application of Order Unless the Court otherwise directs, this Order applies to applications in a committal proceeding. 5.02 Form of application Unless otherwise provided by these Rules, an application in a committal proceeding must be in Form 5A. 5.03 * * * * * * 5.04 Filing of application Unless otherwise provided by these Rules, an application is made by filing the application with the registrar. 5.05 Service of application The applicant must serve a copy of an application on every person to whom notice of the application is to be given a reasonable time before the hearing of the application. ORDER 6 SPECIAL MENTION HEARING 6.01 Fixing of a special mention hearing (1) A party may apply to the Court for a special mention hearing. (2) An application must set out the purpose of the application for the special mention hearing and must be in Form 5A. r. 5.01 -- 11 of 46 -- Order 7 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 8 (3) The Court may of its own motion conduct a special mention hearing. 6.02–6.03* * * * 6.04 Parties may request registrar to cancel a special mention hearing (1) If the parties agree that a special mention hearing should be cancelled, the parties may request the registrar to cancel the special mention hearing and the registrar, if satisfied that there is no need for a special mention hearing, must cancel the special mention hearing accordingly. (2) A request must be made before the date of the special mention hearing and may be made by telephone. 6.05 Application to be excused from attending special mention hearing (1) An application to the Court under clause 3(4) of Schedule 5 to the Act must be made before the special mention date. (2) The application may be made orally or in writing. (3) An application made orally must be determined by the Court. ORDER 7 HAND-UP BRIEFS 7.00 Notice specifying committal mention date, nature of a committal proceeding etc. Notice under clause 6(1)(a) of Schedule 5 to the Act is in the prescribed form if it is in the form of Form 7. r. 6.04 -- 12 of 46 -- Order 8 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 9 7.01 Material to be included in a hand-up brief In addition to any other requirements concerning what is to be contained in a hand-up brief in clause 6(1) of Schedule 5 to the Act, the informant must include in the hand-up brief— (a) a statement of the material facts relevant to the charge; and (b) a list of material in Form 7A. ORDER 8 DEFENCE NOTICE 8.01 Defence notice in response to hand-up brief Notice by the defendant in response to service of a hand-up brief that the defendant— (a) * * * * * * (b) requires specified items listed in the hand-up brief to be produced for inspection or a copy given; or (c) is prepared or is not prepared to proceed or proceed further with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand-up brief remains uncompleted— under clause 12(1) of Schedule 5 to the Act, must be in Form 8A. r. 7.01 -- 13 of 46 -- Order 9 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 10 ORDER 9 OBJECTION BY INFORMANT TO DEFENCE NOTICE 9.01–9.02 * * * * 9.03 Objection by informant to production of certain material (1) An objection by the informant under clause 12(4)(a) of Schedule 5 to the Act to the production by the informant of any item in the hand-up brief that the defendant has requested under clause 12(1)(b) of Schedule 5 to the Act, unless the objection is made in a case direction notice, must be made in Form 9A. (2) An objection under subrule (1) must be made no later than 3 days before the committal mention date. 9.04–9.05 * * * * ORDER 10 CASE DIRECTION NOTICE 10.01 Prescribed form A case direction notice is in the prescribed form if it is in Form 10A. ORDER 11 COMPULSORY EXAMINATION PROCEDURE 11.01 Form of application An application under section 56A(1) of the Act for a person to attend before the Court for the purpose of being examined by or on behalf of the r. 9.03 -- 14 of 46 -- Order 11 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 11 informant or producing a document or thing or both must be in Form 11A. 11.02 Form of notice of order For the purposes of section 56A(3) of the Act, notice of an order requiring a person to attend before the Court under section 56A(1) of the Act is in the prescribed form if— (a) it is in Form 11B if it is to be served on the defendant; or (b) it is in Form 11C if it is to be served on the person to whom the order relates. 11.03 Service of notice of order For the purposes of section 56A(3) of the Act, unless the Court otherwise orders, notice of an order made under section 56A(1) of the Act must be— (a) served in accordance with Rule 3.01(a), if it is to be served on the defendant; or (b) served personally, if it is to be served on the person to whom the order relates. 11.04 Prescribed information For the purposes of section 56A(1B)(e) of the Act, the following other information is prescribed— (a) whether the defendant has been made aware of the application; (b) the issues that are proposed to be raised with the person sought to be examined; (c) any documents or things the person is to produce; r. 11.02 -- 15 of 46 -- Order 11A Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 12 (d) if there has been a committal mention hearing; (e) if there has been a committal mention hearing, why it would be in the interests of justice to allow the application. 11.05 * * * * ORDER 11A EVIDENCE TAKEN AFTER DEFENDANT DIRECTED TO BE TRIED 11A.01 Form of notice of application Notice of an application under clause 24A of Schedule 5 to the Act for an order that the evidence of a person be taken at a time and place fixed by the Court must be in Form 11AA. 11A.02 Response to notice of application A party who receives a notice referred to in Rule 11A.01 must, no later than 7 days before the hearing of the application or such lesser period before then as is agreed to by the other party, give notice in Form 11AB to the other party and the registrar stating— (a) whether the party consents to or opposes an order for the evidence of a witness being taken; and (b) if the party opposes the order, the reasons for the opposition. r. 11A.01 -- 16 of 46 -- Order 12 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 13 ORDER 12 MISCELLANEOUS 12.01 * * * * 12.02 Caution to be given to person charged For the purposes of clause 23(2)(b)(i) of Schedule 5 to the Act and as provided by section 398 of the Crimes Act 1958, the caution set out in section 398 of the Crimes Act 1958 and in Form 12B may be used by the Court. 12.03 Alibi caution The Court may inform the defendant of the provisions of section 399A of the Crimes Act 1958 by using the manner of caution set out in Form 12C. 12.03.1 Plea caution For the purposes of clause 24(1)(aa) of Schedule 5 to the Act, the Court may inform the defendant by using the manner of caution set out in Form 12D. 12.04 Witnessing of statements For the purposes of clause 8(1)(b) of Schedule 5 to the Act, the following persons or classes of persons are prescribed— (a) a member of the police force of Victoria or of any other State or of the Northern Territory of Australia; (b) a member of the Australian Federal Police; (c) an officer at Customs level 2 or higher in the Australian Customs Service; r. 12.02 -- 17 of 46 -- Order 12 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 14 (d) an officer at Australian Public Service level 5 or higher who is— (i) in the Australian Securities and Investments Commission established under Part 2 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth; or (ii) an Investigator in, or a member of, the Investigations Branch of the Department of Education, Employment and Workplace Relations of the Commonwealth; or (iii) a member of the Investigations Branch of the Inspector General Branch in the Department of Defence of the Commonwealth; or (iv) an Investigations Officer in the Department of Agriculture, Fisheries and Forestry of the Commonwealth; or (v) an authorised person in relation to a provision of Part 6-2 of the Therapeutic Goods Act 1989 of the Commonwealth and employed in the Surveillance Unit, Therapeutic Goods Administration of the Department of Health and Ageing of the Commonwealth; or (vi) an Investigator or Senior Investigator in the Passport Fraud Section of the Department of Foreign Affairs and Trade of the Commonwealth; or (vii) an Investigator in the Australian Taxation Office established under Part II of the Taxation Administration Act 1953 of the Commonwealth; or r. 12.04 -- 18 of 46 -- Order 12 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 15 (viii) an Investigator or Investigation Manager in the Insolvency and Trustee Service Australia established under Part II of the Bankruptcy Act 1966 of the Commonwealth; or (ix) an investigator in the Department of Immigration and Citizenship of the Commonwealth; (e) an officer at Australian Public Service level 5 or higher or an equivalent level who is a Fraud Investigator or Fraud Investigator Manager in the Commonwealth Services Delivery Agency (Centrelink) established under Part 2 of the Commonwealth Services Delivery Agency Act 1997 of the Commonwealth; (f) a person employed at Victorian Public Service Grade 4 or higher under section 17(1)(a) of the Police Integrity Act 2008 in the Office of Police Integrity within the meaning of that Act; (g) a person who is an authorised officer for the purposes of Part 9 of the Law Enforcement Integrity Commissioner Act 2006 of the Commonwealth; (h) a person who is an inspector appointed under section 267(1)(a) or (b) of the Radiocommunications Act 1992 of the Commonwealth; (i) a person appointed under regulation 42 of the Radiocommunucations Regulations 1993 of the Commonwealth as an authorised person for those regulations; r. 12.04 -- 19 of 46 -- Order 12 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 16 (j) a person who is an inspector for the purposes of the provisions of the Telecommunications Act 1997 of the Commonwealth by force of section 533(1)(a) or (b) of that Act; (k) a member of the staff of the National Offshore Petroleum Safety Authority who is appointed as an OHS inspector under Part 6.9 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth; (l) a member of the staff of the Australian Crime Commission who is an Investigator; (m) an Investigation Officer or a Senior Investigation Officer or the Manager, Investigations in Medicare Australia established under the Financial Management and Accountability Act 1997 of the Commonwealth and the Public Service Act 1999 of the Commonwealth; (n) an authorised officer within the meaning of the Environment Protection Act 1970, the Fisheries Act 1995 or the Radiation Act 2005; (o) an inspector within the meaning of the Dangerous Goods Act 1985, the Equipment (Public Safety) Act 1994 or the Occupational Health and Safety Act 2004; (p) a transport safety officer within the meaning of the Transport Act 1983; (q) an employee of the Australian Postal Corporation, established under the Australian Postal Corporation Act 1989 of the Commonwealth, who is appointed by the Corporation to act as a Corporate Investigator. r. 12.04 -- 20 of 46 -- Order 12 Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 17 12.05 Statements prepared in another jurisdiction For the purposes of clause 8(1)(c) of Schedule 5 to the Act, a statement made in another jurisdiction of Australia is in the prescribed form and is attested to in the prescribed manner if it has been made and attested to in accordance with the law for making and attesting statements in committal proceedings in that other jurisdiction. __________________ r. 12.05 -- 21 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 18 FORMS FORM 2A Rule 2.01 In the Magistrates' Court of Victoria at Court Reference: BETWEEN: [name of informant] v. [name of defendant] Committal mention date: APPEARANCE TAKE NOTICE THAT the legal practitioner (or firm) indicated below *intends to appear for the defendant(s) *represents the defendant(s) *is willing to accept service of documents on behalf of the defendant *is willing to accept service of documents, other than an additional charge (or additional charges), on behalf of the defendant [name(s) of defendant(s)]. Date: [Signed] Name of legal practitioner (or firm): Address of legal practitioner (or firm): Telephone number: Facsimile number for service of documents: Address for service of documents electronically (if available): Name of person handling the matter: Present address of defendant: __________________ Form 2A -- 22 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 19 FORM 4A Rule 4.05 [heading as in Form 2A] NOTICE OF COMMITTAL PROCEEDINGS TO: [defendant(s)] of [address(es)] Informant's contact details: [insert contact details] This is an important document. Do not ignore it. If you do not have a lawyer, you should contact a solicitor, Victoria Legal Aid or a registrar of the Magistrates' Court as soon as possible. [Telephone number for Law Institute of Victoria Referral Service—insert details] [Address and telephone number for Victoria Legal Aid—insert details] [Address and telephone number of registrar of Magistrates' Court—insert details] If you come to the committal mention hearing without a lawyer the court will not delay the hearing to enable you to get a lawyer unless you have already made reasonable efforts to get a lawyer. COMMITTAL MENTION DATE You have been charged with *a criminal offence/*criminal offences. There will be a committal mention hearing in relation to the charge or charges at the Magistrates' Court at [venue] on [date] at [time]. You must attend court on that date. WHAT IS A COMMITTAL PROCEEDING? A committal proceeding is a proceeding in the Magistrates' Court. That court will examine the evidence relating to the charge or charges against you to decide whether there is sufficient evidence to send you for trial in the County Court or the Supreme Court. Form 4A -- 23 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 20 WHAT WILL HAPPEN BETWEEN NOW AND THE COMMITTAL MENTION DATE? At least 6 weeks before the committal mention hearing, the person who charged you (the informant) will provide you (or your lawyer, if you have a lawyer) with a hand-up brief. The hand-up brief will set out the evidence relating to the charge or charges against you. This will include statements made by witnesses. You or your lawyer will be notified of the prosecutor's contact details. You or your lawyer must discuss the case with the prosecutor before the committal mention hearing. Depending on the nature of the case and of the witnesses, you may be able to ask the court's permission for you or your lawyer to cross examine some or all of the witnesses about their statements. You will receive further information about the process when you receive the hand-up brief of evidence. Date: [registrar] *delete if not applicable __________________ Form 4A -- 24 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 21 FORM 4B Rule 4.06 [heading as in Form 2A] APPLICATION FOR THE FIXING OF A LONGER OR SHORTER PERIOD FOR THE HOLDING OF A COMMITTAL MENTION HEARING (clause 4(3) of Schedule 5 to the Magistrates' Court Act 1989) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies to the Court for the Court to fix a longer period for the holding of a committal mention hearing than that set out in clause 4(2) of Schedule 5 to the Act. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: __________________ Form 4B -- 25 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 22 FORM 5A Rules 5.02 and 6.01 [heading as in Form 2A] APPLICATION TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies— *1. for an order that a special mention hearing takes place [set out purpose of special mention hearing, as required by Rule 6.01]. *2. for leave to cross-examine [insert name of witness], after the expiry of the period for giving notice of cross-examination under clause 12(1) of Schedule 5 to the Magistrates' Court Act 1989. *3. for the following orders— [set out details of order(s) sought. Also set out the grounds for the application] The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: *delete if inapplicable __________________ FORMS 6A–6C * * * * __________________ Form 5A -- 26 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 23 FORM 7 Rule 7.00 [heading as in Form 2A] HAND-UP BRIEF OF EVIDENCE AND NOTICE OF COMMITTAL MENTION DATE (clause 6(1)(a) of Schedule 5 to the Magistrates' Court Act 1989) TO: [defendant(s)] of [address(es)] Informant's contact details—[insert name and contact details] This is an important document. Do not ignore it. If you do not have a lawyer, you should contact a solicitor, Victoria Legal Aid or a registrar of the Magistrates' Court as soon as possible. [Telephone number for Law Institute of Victoria Referral Service—insert details] [Address and telephone number for Victoria Legal Aid—insert details] [Address and telephone number of registrar of Magistrates' Court—insert details] If you come to the committal mention hearing without a lawyer the court will not delay the hearing to enable you to get a lawyer unless you have already made reasonable efforts to get a lawyer. COMMITTAL MENTION DATE You have been charged with *a criminal offence/*criminal offences. A copy of the charge sheet is attached to this notice. There will be a committal mention hearing in relation to *the charge/*those charges at the Magistrates' Court at [venue] on [date] at [time]. You must attend court on that date. WHAT IS A COMMITTAL PROCEEDING? A committal proceeding is a proceeding in the Magistrates' Court. That court will examine the evidence relating to the charge or charges against you to decide whether there is sufficient evidence to send you for trial in the County Court or the Supreme Court. Form 7 -- 27 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 24 The evidence will include the documents and other things that are contained in the hand-up brief of evidence which is attached to this notice. Depending on the nature of the case and of the witnesses, you may be able to ask the court's permission for you or your lawyer to cross examine some or all of the witnesses about their statements. DISCUSSION OF ISSUES WITH THE PROSECUTOR At least 7 days before the committal mention date you or your lawyer must discuss your case with the prosecutor. (If you or your lawyer have not already been notified of the prosecutor's contact details, you or your lawyer should be notified of those details no later than 16 days before the committal mention date.) The purpose of the discussion is to find out matters including— (a) whether you propose to plead guilty or not guilty; (b) whether you will be arguing that there is insufficient evidence for the case to go to trial before a jury; (c) whether you will be asking to cross-examine any of the witnesses whose statements are contained in the hand-up brief of evidence, and whether the prosecutor opposes that cross-examination; (d) whether you will be calling any of your own witnesses to give evidence; (e) whether you want to inspect any things that are listed in the hand-up brief of evidence, and whether the informant objects to that inspection; (f) if a charge is to be heard and determined summarily, whether you will be applying to the court to have the charge tried by a Magistrate in the Magistrates' Court rather than by a judge and jury in the County Court or Supreme Court. THE COMMITTAL MENTION HEARING A committal mention hearing is one of the stages of a committal proceeding. At a committal mention hearing the court may— (a) determine any application for a charge to be tried summarily; (b) determine certain procedural matters, and may adjourn the proceeding or may fix another committal mention date; (c) immediately hear and determine the committal proceeding (in other words, it may examine all of the evidence and decide whether or not you should be tried by a judge and jury in the County Court or Supreme Court); Form 7 -- 28 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 25 (d) if the Court decides that you should be tried by a judge and jury in the County Court or Supreme Court, ask you whether or not you plead guilty or not guilty to the charge or charges against you. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– AFFIDAVIT/DECLARATION OF SERVICE I [full name] of [address] a member of the police force in the State of Victoria *make oath and say/*declare that I served on the defendant a hand-up brief containing this notice and the enclosures referred to in this notice by delivering a true copy to the defendant personally at [address] on [day of week] the day of 20 at *a.m./*p.m. *I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury. *Sworn/Declared at [place] in the State of Victoria on [date] Before [Name and address in legible writing, typing or stamp below signature] *a person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration. *a person authorised under section 123C(1) of the Evidence Act 1958 to take an affidavit. __________________ Form 7 -- 29 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 26 FORM 7A Rule 7.01(b) [heading as in Form 2A] LIST OF MATERIAL INCLUDED IN HAND-UP BRIEF (clause 6(1)(l) of Schedule 5 to the Magistrates' Court Act 1989) 1. A statement of the material facts relevant to the charge is attached. (Rule 7.01(a)). *2. Order(s) were made for the examination of [names of persons] under section 56A of the Magistrates' Court Act 1989 and transcript(s) of the examination(s) *is/are *attached/*not attached. (clause 6(1)(d) of Schedule 5 to the Magistrates' Court Act 1989) OR *2 No orders were made for the examination of any person under section 56A of the Magistrates' Court Act 1989. *2. There are no forensic procedures, examinations or tests on which the informant intends to rely as tending to establish the guilt of the defendant that are not yet completed. OR *3. The following forensic procedures, examinations or tests on which the informant intends to rely as tending to establish the guilt of the defendant are not yet completed [describe here any forensic procedures, examinations or tests that are not yet completed]. (clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989) *4. The following is a list of other statements that are capable of being admitted in evidence relevant to the charge available to the informant but on which the informant does not intend to rely. [list statement(s) here] (clause 6(1)(k) of Schedule 5 to the Magistrates' Court Act 1989) OR *4. There is no other statement that is capable of being admitted in evidence relevant to the charge available to the informant but on which the informant does not intend to rely. Form 7A -- 30 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 27 5. The documents that are capable of being admitted in evidence relevant to the charge available to the informant but on which the informant does not intend to rely are— *running sheets *prisoner's register *attendance register *expert witness notes *witnesses' prior convictions *notes (prosecution witness) *photos or photocopies where it is impractical to produce extra sets *video files or video recordings *audio files or audio recordings *notes (e.g.) surveillance logs, crime scene notes, exhibit logs, diaries (official or otherwise) *other documents (provide details). (clause 6(1)(k) of Schedule 5 to the Magistrates' Court Act 1989) Signature of informant— Dated— NOTE This Form is to be completed by the informant and included in any hand-up brief. *delete if inapplicable __________________ Form 7A -- 31 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 28 FORM 8A Rule 8.01 [heading as in Form 2A] NOTICE OF DEFENDANT IN RESPONSE TO HAND-UP BRIEF (clause 12(1) of Schedule 5 to the Magistrates' Court Act 1989) TO: the informant AND TO: the Director of Public Prosecutions or the person or body authorised at law to prosecute in the committal proceeding AND TO: the registrar TAKE NOTICE that the defendant— *1. requires the following specified items as listed in the hand-up brief in accordance with clause 6(1)(j), (k) or (l) of Schedule 5 to the Magistrates' Court Act 1989— [specify statements or documents] to be produced for inspection or a copy given to the defendant on or before [insert committal mention date]. *2. is prepared to proceed, or proceed further, with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand up brief in accordance with clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989 remains uncompleted. OR *2. is not prepared to proceed, or proceed further, with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand up brief in accordance with clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989 remains uncompleted. [set out here the forensic procedure, examination or test that remains uncompleted]. Dated: [Signed by the defendant or the defendant's legal practitioner] *delete if not applicable __________________ Form 8A -- 32 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 29 FORM 9A Rule 9.03 [heading as in Form 2A] NOTICE BY INFORMANT OF OBJECTION TO THE PRODUCTION OF AN ITEM LISTED IN HAND-UP BRIEF (clause 12(4)(a) of Schedule 5 to the Magistrates' Court Act 1989) TO: the defendant AND TO: the registrar TAKE NOTICE that the informant objects to the production of the following item(s) listed in the hand-up brief required by the defendant to be produced— [list items]. THE REASONS for the informant objecting to production of the item(s) are— [set out reasons] Dated— Signature— *of Informant *for or on behalf of the Director of Public Prosecutions *for or on behalf of [other person or body authorised at law to prosecute in the committal proceeding] *delete if not applicable __________________ FORM 9B * * * * * __________________ Form 9A -- 33 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 30 FORM 10A Rule 10.01 [heading as in Form 2A] CASE DIRECTION NOTICE (clause 11AA of Schedule 5 to the Magistrates' Court Act 1989) TO: the registrar *TAKE NOTICE that— † the *defendant/*defendant's legal practitioner has read the brief of evidence; † the Director of Public Prosecutions has read the brief of evidence; † the defence and the Director of Public Prosecutions have discussed whether this matter can be resolved by *a plea/*pleas of guilty and, if so, on what charge(s). In light of those discussions, the defendant and the Director of Public Prosecutions propose that this committal proceeding be dealt with as follows— *TAKE NOTICE that no legal practitioner has served a notice of appearance on the Director of Public Prosecutions in this matter, the Director of Public Prosecutions is not aware of any legal practitioner representing the defendant and the defendant has not participated in any discussion or other activity in connection with the preparation of this notice. *1. The court should determine the committal proceeding at the committal mention hearing. At the committal mention hearing, will the defendant submit that the defendant should not be committed for trial? *Yes/*No If committed for trial, how does the defendant intend to plead? *Guilty/*Not guilty/*Not applicable (charge to be withdrawn) [if there is more than one charge, and the answers to these questions are not the same for all charges, list the charges separately or in groups and provide answers in relation to each charge or group of charges] *Basis of indication of intention to plead [If the defendant indicates an intention to plead on a particular basis or bases, briefly indicate that basis or those bases. For example— The indication is made without prejudice in the course of negotiations to settle the matter. Form 10A -- 34 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 31 The indication is made on the basis that the informant will withdraw particular charges.] *2. The parties seek a committal case conference. The issues identified by the parties to be addressed at the committal case conference are—[insert brief description of issues] *3. The defendant will apply for a summary hearing of the following charge(s). Charge Proposed plea [list each charge for which there will be an application for a summary hearing] *Guilty *Not guilty *4. The defendant will apply for leave to cross-examine the following witness or witnesses. Name of witness: Does the informant oppose leave being granted? *Yes/*No [if Yes, include the following matters—] Issue, relevance and justification [indicate the issue or issues identified by the defendant to which the proposed questioning relates, why the defendant considers that evidence of the witness is relevant to that issue or those issues and why the defendant considers that cross examination on that issue or those issues is justified] Opposition—[indicate why the informant opposes leave being granted] *5. The defendant seeks the production of an item or items listed in the hand-up brief and the informant objects to the production of the item or items— Item—[describe the item(s)] Ground for objection [indicate the informant's ground for objecting to producing the item] *6. The defendant and the Director of Public Prosecutions seek an adjournment of the committal proceeding. Reason(s) for adjournment—[indicate the reason(s) for the proposed adjournment] Form 10A -- 35 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 32 Dated— Signature of *defendant/*defendant's legal practitioner— Dated— Signature (for or on behalf of the Director of Public Prosecutions)— *delete if not applicable __________________ Form 10A -- 36 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 33 FORM 11A Rule 11.01 [heading as in Form 2A] APPLICATION FOR COMPULSORY EXAMINATION (section 56A of the Magistrates' Court Act 1989) TO: [name of person who is to attend] THE APPLICANT [insert name] applies for an order— that [name of person] attend before the Court for the purpose of *being examined by or on behalf of the informant *producing a document or thing *being examined by or behalf of the informant and producing a document or thing or both. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Dated: [registrar] This application was filed by: [name of informant] *delete if inapplicable __________________ Form 11A -- 37 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 34 FORM 11B Rule 11.02(a) [heading as in Form 2A] NOTICE OF ORDER (to be served on the defendant) TO: [name of defendant] An order requiring that [name of person to whom order relates] attend before the Court in this committal proceeding has been made by the Court on the application of the informant under section 56A(1) of the Magistrates' Court Act 1989. THE COURT HAS ORDERED that [name of person to whom order relates] attend before the Court for the purpose of— *being examined by or on behalf of the informant; *producing a document or thing, namely— [describe the document or thing]; *being examined by or on behalf of the informant and producing a document or thing or both [describe the document or thing]; (a) at [venue of Court] Magistrates' Court; (b) at 10.00 a.m. [or as the case requires] on [date] and until [name of person to whom order relates] is excused from further attending. Dated— Signature of informant— NOTES TO THE DEFENDANT (1) Any question concerning this Notice should be addressed not to the Court but to the informant. (2) Section 56A(3) of the Magistrates' Court Act 1989 provides that notice of an order under section 56A(1) of the Act must be served on you in accordance with the Rules. (3) You may attend Court on the above date and you may be legally represented. (4) You may not cross-examine a witness attending the Court under an order made under section 56A(1) of the Act. Form 11B -- 38 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 35 (5) If you attend Court and, if the Court determines there are exceptional circumstances, you may address the Court on the proceeding personally or through a legal practitioner representing you. (6) You may wish to seek legal advice in which case you should contact your legal representative or Victoria Legal Aid immediately. *delete if inapplicable __________________ Form 11B -- 39 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 36 FORM 11C Rule 11.02(b) [heading as in Form 2A] NOTICE OF ORDER (to be served on person to whom order relates) TO: [name of person to whom order relates] An order requiring that [name of person to whom order relates] attend before the Court in this committal proceeding has been made by the Court on the application of the informant under section 56A(1) of the Magistrates' Court Act 1989. THE COURT HAS ORDERED that [name of person to whom order relates] attend before the Court for the purpose of— *being examined by or on behalf of the informant; *producing a document or thing, namely— [describe the document or thing]; *being examined by or on behalf of the informant and producing a document or thing or both [describe the document or thing]; (a) at [venue of Court] Magistrates' Court; (b) at 10.00 a.m. [or as the case requires] on [date] and until [name of person to whom order relates] is excused from further attending. Dated— Signature of informant— NOTES TO PERSON TO WHOM ORDER RELATES (1) If you do not comply with the order you may be arrested. (2) Any question concerning this Notice should be addressed not to the Court but to the informant. (3) You have the right to be legally represented at the proposed examination. (4) You may wish to seek legal advice in which case you should contact your legal representative or Victoria Legal Aid immediately. *delete if inapplicable __________________ Form 11C -- 40 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 37 FORM 11AA Rule 11A.01 [heading as in Form 2A] NOTICE OF APPLICATION FOR ORDER THAT THE EVIDENCE OF A PERSON BE TAKEN (clause 24A of Schedule 5 to the Magistrates' Court Act 1989) TO: *the Director of Public Prosecutions/*the defendant AND TO: the registrar THE *defendant/*Director of Public Prosecutions— will apply to the Court for an order that the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court. An issue to which the proposed questioning relates and a reason as to why the evidence is relevant to the issue are set out as follows— [insert details] The defendant has been committed for trial at [name of court] at [place] on [trial date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Dated— Signature— *of defendant/*defendant's legal practitioner *for or on behalf of the Director of Public Prosecutions Dated: [registrar] This Notice of application was filed by: [insert name]. *delete if inapplicable. __________________ Form 11AA -- 41 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 38 FORM 11AB Rule 11A.02 [heading as in Form 2A] RESPONSE TO NOTICE OF APPLICATION FOR ORDER THAT THE EVIDENCE OF A PERSON BE TAKEN (clause 24A of Schedule 5 to the Magistrates' Court Act 1989) TO: *the Director of Public Prosecutions/*the defendant AND TO: the registrar THE *defendant/*Director of Public Prosecutions— *CONSENTS to an order that the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court. or *OPPOSES an order for the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court for the following reasons— [set out reasons] [signature] Signature *for or on behalf of the Director of Public Prosecutions/*of defendant or defendant's legal practitioner: Dated: [registrar] This Response to Notice of application was filed by: [insert name]. *delete if inapplicable __________________ FORM 12A * * * * * __________________ Form 11AB -- 42 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 39 FORM 12B Rule 12.02 CAUTION TO BE GIVEN TO PERSON CHARGED (clause 23(2)(b)(i) of Schedule 5 to the Magistrates' Court Act 1989 and section 398 of the Crimes Act 1958) "You now have the right to answer the charge against you and may take either of the following courses: (a) You may enter the witness box, take the oath, and say what you want to say in answer to the charge. This is known as giving sworn evidence and when you have given your evidence you may be asked questions about it by the prosecution or the Court; (b) You may say nothing in answer to the charge. In either of these cases you may call any witness or witnesses to give sworn evidence for you. What do you desire to do?" __________________ Form 12B -- 43 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 40 FORM 12C Rule 12.03 ALIBI CAUTION (clause 23(2)(b)(ii) of Schedule 5 to the Magistrates' Court Act 1989) I warn you that if you are committed for trial your right to call evidence in support of an alibi is restricted. To be allowed to call alibi evidence you must give written notice to the Court now or to the Director of Public Prosecutions not later than 10 days after the end of this committal hearing. The notice must contain the following in support of your alibi— (a) the name of each witness you propose to call; (b) the current address (if known to you) of each witness; (c) if the address is not known, all information you have which might help locate the witness; (d) the facts on which you rely. __________________ Form 12C -- 44 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 41 FORM 12D Rule 12.03.1 PLEA CAUTION (clause 24(1)(aa) of Schedule 5 to the Magistrates' Court Act 1989) You may plead guilty or not guilty. If you plead guilty to all the charges or some of the charges today or at any time before or during your trial, the sentencing judge may take into account whether you pleaded guilty and the stage in the proceedings at which you pleaded guilty or indicated an intention to plead guilty. It is also your right to plead not guilty to all of the charges or some of them. Whatever you say will be recorded and may be given in evidence if you appear before a judge. Are you guilty or not guilty? Dated: 14 July 2009 IAN L. GRAY, Chief Magistrate DANIEL J. MULING, Deputy Chief Magistrate FELICITY A. BROUGHTON, Deputy Chief Magistrate ═══════════════ Form 12D -- 45 of 46 -- Magistrates' Court (Committals) Rules 2009 S.R. No. 83/2009 42 ENDNOTES 1 Rule 1.04(a): S.R. No. 97/1999 as amended by S.R. Nos 150/1999, 58/2001, 56/2007, 83/2008 and 138/2008. 2 Rule 1.04(b): S.R. No. 150/1999. 3 Rule 1.04(c): S.R. No. 58/2001. 4 Rule 1.04(d): S.R. No. 56/2007. 5 Rule 1.04(e): S.R. No. 83/2008. 6 Rule 1.04(f): S.R. No. 138/2008. Endnotes -- 46 of 46 --