Supreme Court (Criminal Procedure Amendment) Rules 2009

i Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 TABLE OF PROVISIONS Rule Page PART 1—PRELIMINARY 1 1 Object 1 2 Authorising provisions 1 3 Commencement 1 PART 2—AMENDMENT OF CHAPTER VI 2 4 Principal Rules 2 5 Amendments to title, object and authorising provisions 2 6 Definitions 2 7 References to "Master" amended 3 8 Extension and abridgement 3 9 Subpoenas 3 10 Effect of non-compliance 4 11 New Rule 1.17 4 1.17 Notices to be signed 4 12 Order 2 substituted 5 ORDER 2—CRIMINAL APPEALS 5 PART 1—PRELIMINARY 5 2.01 Definitions 5 2.02 Single judge 6 2.03 Jurisdiction and powers exercisable by two Judges of Appeal 6 2.04 Legal practitioners 7 PART 2—COMMENCEMENT OF APPEALS UNDER DIVISIONS 1 AND 2 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 8 2.05 Commencement of appeal against conviction or sentence 8 2.06 Commencement of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court 9 -- 1 of 106 -- Rule Page ii 2.07 Procedure on hearing application under section 283 9 2.08 Application may be treated as appeal 10 2.09 No notice of appeal when leave is granted 10 2.10 Full statement of grounds 10 2.11 Outline of submissions 11 2.12 Unrepresented appellant 12 2.13 Noncompliance with Rule 2.10 or 2.11 12 2.14 Early hearing 13 PART 3—APPEALS UNDER DIVISION 3 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 14 2.15 Crown appeals 14 PART 4—APPLICATIONS UNDER DIVISION 5 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 16 2.16 Refusal to reserve question of law—application to show cause 16 2.17 Applicant to file affidavit 16 PART 5—APPEALS UNDER CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 17 2.18 Commencement of appeal against finding that accused is unfit to stand trial 17 2.19 Commencement of appeal against verdict of not guilty because of mental impairment 17 2.20 Application may be treated as appeal 18 2.21 No notice of appeal when leave is granted 18 PART 6—APPLICATIONS UNDER DIVISION 7 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 18 2.22 Application for extension of time 18 2.23 Extension of time before Registrar 18 2.24 Extension of time—application to Court of Appeal under section 313(2) 19 2.25 Application under section 315—refusal of Judge of Appeal to exercise powers 19 PART 7—REFERENCE TO COURT OF APPEAL ON PETITION OF MERCY 20 2.26 Reference on petition of mercy 20 -- 2 of 106 -- Rule Page iii PART 8—PROCEDURES 21 2.27 Time 21 2.28 Fine and imprisonment in default—fine paid to be retained pending appeal 22 2.29 Procedure for appeal where fine and imprisonment in default 22 2.30 Pre-hearing conference 23 2.31 Transcript of trial 24 2.32 Preservation of exhibits 25 2.33 Copies of transcript, exhibits etc. 26 2.34 Return of exhibits after hearing 26 2.35 Certificate of conviction 27 2.36 Attendance of appellant 27 2.37 Written case and argument 28 2.38 Bail 28 2.39 Registrar to notify determination 28 2.40 Notice of abandonment 29 2.41 Abandonment 29 2.42 Report from trial judge 30 2.43 Original depositions, exhibits etc. 30 2.44 Witnesses before Court of Appeal—section 318 31 2.45 Examination other than by court under section 318(2) 31 2.46 Special commissioners—section 320 33 2.47 Entitlement to hearing when restitution order or compensation order made 34 2.48 Property subject to restitution order or compensation order 35 2.49 Security may be ordered 35 2.50 Property subject to order for forfeiture or destruction 35 2.51 Custody of property of convicted person 36 2.52 Transfer of prisoners 36 2.53 Duties of prison officers 36 2.54 Obligation of prison officers—section 283 appeals 38 13 Order 3 substituted 39 ORDER 3—INTERLOCUTORY APPEALS UNDER THE CRIMINAL PROCEDURE ACT 2009 39 3.01 Application of Order 39 3.02 Definitions 39 3.03 Commencement of interlocutory appeal—section 295 39 3.04 Commencement of application for review of refusal to certify—section 296 40 3.05 Appellant to file affidavit 40 3.06 Application for leave may be treated as appeal or review 41 -- 3 of 106 -- Rule Page iv ORDER 3A—APPEALS ON A QUESTION OF LAW 42 3A.01 Definitions 42 3A.02 Commencement of appeal on question of law 42 3A.03 Notice of appeal 42 3A.04 Appellant to file affidavit 43 3A.05 Directions 44 3A.06 Leave to appeal 45 3A.07 Stay 45 3A.08 Delay and expedition 46 3A.09 Report 46 ORDER 3B—OTHER APPLICATIONS TO COURT OF APPEAL 47 3B.01 Application of Order 47 3B.02 Application by summons 47 3B.03 Service 47 3B.04 Directions hearing 47 3B.05 Court of Appeal may set aside or give directions 48 14 Order 4 substituted 48 ORDER 4—CRIMINAL PROCEDURE RULES 48 PART 1—PRE-TRIAL CRIMINAL PROCEDURE 48 4.01 Definitions 48 4.02 Filing indictment 49 4.03 Notice to accompany copy indictment—no legal practitioner representing accused 49 4.04 Notice by legal practitioner to DPP and CTLD 49 4.05 Notice by legal practitioner to Prothonotary 50 4.06 Unrepresented accused 51 4.07 Questionnaire 52 4.08 Case conference 52 SCHEDULE 55 PART 2—NOTICES UNDER THE ACT AND GENERAL MATTERS 58 4.09 Commonwealth DPP 58 4.10 DPP to specify sections in notice given under the Act 58 4.11 Notice of alibi 58 4.12 Recording of time and date of arraignment 58 4.13 Notice of intention to plead guilty to remaining charges in indictment 58 -- 4 of 106 -- Rule Page v 15 New Order 15 59 ORDER 15—IDENTITY CRIME RULES 59 15.01 Identity crime certificate 59 15.02 Notice to prosecutor to assist 59 16 Forms substituted—Order 2 60 Form 6–2A—Notice of Application for Leave to Appeal against Conviction 60 Form 6–2B—Notice of Application for Leave to Appeal against Sentence 63 Form 6–2C—Notice of Application for Leave to Appeal against Sentence Imposed by County Court on Appeal from Magistrates' Court under Section 283 of the Criminal Procedure Act 2009 66 Form 6–2D—Notification to Applicant of Single Judge's Decision under Section 315 of the Criminal Procedure Act 2009 67 Form 6–2E—Application under Section 304 of the Criminal Procedure Act 2009 to Show Cause Why a Question of Law Should not be Reserved for Determination by Court of Appeal 68 Form 6–2F—Notice of Application for Leave to Appeal against Finding of Unfitness to Stand Trial 69 Form 6–2G—Notice of Application for Leave to Appeal against Mental Impairment Verdict 71 Form 6–2H—Application for Extension of Time to *File/*Serve Notice of Appeal or Notice of Application to Appeal 74 Form 6–2I—Notification to Applicant of Registrar's Decision under Section 313 of the Criminal Procedure Act 2009 75 Form 6–2J—Election to have Extension of Time Determined by the Court of Appeal 76 Form 6–2K—Election to have application under Section 315 of the Criminal Procedure Act 2009 Determined by Court of Appeal 77 Form 6–2L—Recognizance of Appellant Sentenced to Pay a Fine (and Surety) 79 Form 6–2M—Notification of Result of Appeal or Application 81 -- 5 of 106 -- Rule Page vi Form 6–2N—Notice of Abandonment 82 Form 6–2O—Appellant's Application for Examination of Further Witness(es) 83 Form 6–2P—Notice to Witness to Attend Before Examiner 84 Form 6–2Q—Notice to Prisoner Who Wishes to Appeal 85 Form 6–2R—Information for Persons Upon Whom a Sentence of Imprisonment has been Imposed by the County Court Upon Appeal from the Magistrates' Court in Substitution for other Sentence Imposed by the Magistrates' Court 86 17 New Order 3 Forms 87 Form 6–3A—Notice of Application for Leave to Appeal Against Interlocutory Decision 87 Form 6–3B—Notice of Application for Review of Refusal of Judge to Certify Under Section 295(3) of Criminal Procedure Act 2009 89 18 Order 4 Forms substituted 90 Form 6–4A—Notice to Accused Under Section 171 of the Criminal Procedure Act 2009 90 Form 6–4B—Notice that Legal Practitioner Acts 91 Form 6–4C—Notice that Legal Practitioner has Ceased to Act 92 Form 6–4D—Questionnaire 93 Form 6–4E—Notice of Alibi 94 Form 6–4F—Notice of Intention to Plead Guilty to One or More Remaining Charges in Indictment 95 19 New Order 15 Forms 96 Form 6–15A—Identity Crime Certificate 96 Form 6–15B—Notice to Appear Under Section 89H of the Sentencing Act 1991 97 PART 3—AMENDMENT OF CHAPTER I 98 20 Application of Part 3 of Order 58 of Chapter I 98 21 Order striking out appeal 98 ═══════════════ ENDNOTES 100 -- 6 of 106 -- 1 STATUTORY RULES 2009 S.R. No. 132/2009 Supreme Court Act 1986 Criminal Procedure Act 2009 Supreme Court (Criminal Procedure Amendment) Rules 2009 The Judges of the Supreme Court make the following Rules: PART 1—PRELIMINARY 1 Object The object of these Rules is to amend the Rules of the Supreme Court— (a) as a consequence of the enactment of the Criminal Procedure Act 2009; and (b) to provide forms for the purposes of identity crime offences. 2 Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, the Criminal Procedure Act 2009 and all other enabling powers. 3 Commencement These Rules come into operation on 1 January 2010. __________________ -- 7 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 2 PART 2—AMENDMENT OF CHAPTER VI 4 Principal Rules In this Part, the Supreme Court (Criminal Procedure) Rules 2008 1 are called the Principal Rules. 5 Amendments to title, object and authorising provisions (1) In Rule 1.01(2) of the Principal Rules— (a) omit "remake the Rules constituting Chapter VI of the Rules of the Supreme Court which"; (b) after "Crimes Act 1958" insert "and the Criminal Procedure Act 2009". (2) In Rule 1.02(b) of the Principal Rules omit "sections 366 and 583 of". (3) In Rule 1.02 of the Principal Rules— (a) in paragraph (d) omit "and"; (b) for paragraph (e) substitute— "(e) the Criminal Procedure Act 2009; (f) all other enabling powers.". 6 Definitions In Rule 1.05 of the Principal Rules— (a) insert the following definitions— "barrister has the same meaning as it has in the Legal Profession Act 2004; Note The Legal Profession Act 2004 defines barrister as an Australian legal practitioner who engages in legal practice solely as a barrister. r. 4 -- 8 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 3 legal practitioner means the legal practitioner (as defined in section 3 of the Criminal Procedure Act 2009) who acts for the accused and— (a) where an officer of Victoria Legal Aid so acts, includes such officer; (b) does not include a barrister, unless these Rules specifically provide otherwise;"; (b) the definition of solicitor is revoked; (c) in the definition of Registrar for "Appeals;" substitute "Appeals.". 7 References to "Master" amended (1) In the heading to Rule 1.06.1 of the Principal Rules for "Master" substitute "Associate Judge". (2) In Rule 1.06.1 of the Principal Rules for "a Master" substitute "an Associate Judge". 8 Extension and abridgement At the foot of Rule 1.08(2) of the Principal Rules insert— "Note See also sections 247 and 313 of the Criminal Procedure Act 2009 in relation to time under that Act.". 9 Subpoenas (1) In Rule 1.12(1) of the Principal Rules for "paragraph (2)" substitute "paragraphs (2) and (3)". (2) After Rule 1.12(2) of the Principal Rules insert— "(3) A subpoena in a proceeding to which these Rules relate shall be served personally by giving a copy of the subpoena to the person to be served.". r. 7 -- 9 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 4 10 Effect of non-compliance (1) In the heading to Rule 1.15 of the Principal Rules, after "non-compliance" insert "and dispensing with compliance". (2) After Rule 1.15(2) of the Principal Rules insert— "(3) Except as provided by these Rules, a failure to comply with these Rules or with any rule of practice in force under the Criminal Procedure Act 2009 shall not prevent the prosecution of an appeal or an application for leave to appeal if the Court considers that, in the interests of justice, the failure should be waived or remedied and the matter proceed.". 11 New Rule 1.17 After Rule 1.16 of the Principal Rules insert— "1.17 Notices to be signed Subject to the Criminal Procedure Act 2009 and to these Rules, a notice given under these Rules shall be signed— (a) by the appellant or applicant; (b) by a legal practitioner on behalf of the appellant or applicant; or (c) by a barrister on behalf of the appellant or applicant.". r. 10 -- 10 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 5 12 Order 2 substituted For Order 2 of the Principal Rules substitute— "ORDER 2—CRIMINAL APPEALS PART 1—PRELIMINARY 2.01 Definitions (1) In this Order, unless the context or subject matter otherwise requires, the Act means the Criminal Procedure Act 2009. (2) In this Order, unless the context or subject matter otherwise requires— Crown appeal means an appeal brought by the DPP under section 287 or 291 of the Act; examiner means a person appointed by the Court of Appeal under section 318 of the Act; exhibit includes— (a) all books, papers and documents and all other property connected with the proceedings against any person entitled or authorised to appeal, which were sent to the originating court upon committal or produced and read in evidence during trial or other proceedings; and (b) any written statement delivered to a trial judge by that person— but does not include— r. 12 -- 11 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 6 (c) the original depositions of witnesses examined at a preliminary examination, committal or before a coroner; and (d) any indictment or written process against an accused; and (e) any plea filed in the originating court; recording officer of the originating court means the officer who has custody of the records of the originating court; respondent means the person who defends an appeal, other than a Crown appeal. 2.02 Single judge A Judge of Appeal may exercise any power of the Court of Appeal under Rules 1.15(2) or (3), 2.04(4), 2.10(4), 2.13(3), 2.15(5), 2.26(2) and 2.27(2), (3) or (4). Note See section 315 of the Act for powers which may be exercised under Part 6.3 of Chapter 6 of the Act by a single Judge of Appeal. 2.03 Jurisdiction and powers exercisable by two Judges of Appeal (1) Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal in appeals under Division 2 of Part 6.3 of Chapter 6 of the Act from the County Court. (2) Two Judges of Appeal may make any order or give any direction incidental or ancillary to the exercise by them of the jurisdiction and powers of the Court of Appeal. r. 12 -- 12 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 7 2.04 Legal practitioners (1) A legal practitioner who, on behalf of an appellant, files a notice of appeal or a notice of application for leave to appeal under this Order shall state in the notice— (a) that the legal practitioner is acting for the appellant; (b) the contact details of the legal practitioner, including name, address, telephone number, fax number and e-mail address (if any); and (c) the relevant name and address for service. (2) The practitioner shall be noted in the records of the Court as acting for the appellant. (3) Subject to paragraph (4), if a legal practitioner ceases to act for an appellant, the practitioner shall forthwith— (a) file notice of ceasing to act for the appellant; and (b) serve a copy of the notice on the respondent. (4) Unless another legal practitioner has filed a notice that that practitioner is now acting for the appellant, a practitioner may not file notice of ceasing to act without first obtaining the leave of— (a) the Registrar; or (b) if leave is refused by the Registrar, the Court of Appeal. r. 12 -- 13 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 8 PART 2—COMMENCEMENT OF APPEALS UNDER DIVISIONS 1 AND 2 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 2.05 Commencement of appeal against conviction or sentence (1) An application for leave to appeal against conviction under section 274 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–2A. Note Section 275(1) of the Act requires the notice of application for leave to appeal to be filed within 28 days after the day on which the person is sentenced, subject to any extension under section 313 of the Act. (2) An application for leave to appeal against sentence under section 278 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–2B. Note Section 279(1) of the Act requires the notice of application for leave to appeal to be filed within 28 days after the day on which the person is sentenced, subject to any extension under section 313 of the Act. (3) The notice of application for leave to appeal shall state briefly the grounds on which it is sought to appeal. r. 12 -- 14 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 9 2.06 Commencement of appeal against sentence of imprisonment imposed by County Court on appeal from Magistrates' Court (1) An application for leave to appeal against sentence under section 283 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–2C. Note Section 284 of the Act requires the notice of application for leave to appeal to be filed within 28 days after the day on which the person is sentenced by the County Court, subject to any extension under section 313 of the Act. (2) The notice of application for leave to appeal shall state briefly the grounds on which it is sought to appeal. 2.07 Procedure on hearing application under section 283 (1) Upon the hearing of an application for leave to appeal under section 283 of the Act— (a) the applicant shall be entitled to attend and to be represented by counsel; (b) the informant shall be entitled to attend and to be represented by counsel; (c) with the leave of the Court, the applicant or the informant may adduce evidence. (2) Paragraph (1) applies with any necessary modification to the hearing of an appeal. r. 12 -- 15 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 10 2.08 Application may be treated as appeal The Court of Appeal may treat the hearing of the application as the hearing of the appeal. 2.09 No notice of appeal when leave is granted If the Court of Appeal gives leave to appeal, the notice of application for leave to appeal is sufficient notice of appeal. 2.10 Full statement of grounds (1) Subject to Rule 2.14, the appellant shall file and serve a full statement of the grounds on which the appellant relies within the following time periods— (a) within two months after filing a notice of application for leave to appeal, otherwise than against sentence only; or (b) if a notice of application for leave to appeal against sentence only is filed and leave to appeal is granted by a Judge of Appeal under section 315 of the Act, within one month after leave to appeal is granted; or (c) if, after leave to appeal against sentence is refused by a Judge of Appeal under section 315 of the Act, election is made by the applicant under section 315(2) of the Act in accordance with Rule 2.25, within one month after that election is made. (2) If a notice of application for leave to appeal against sentence only is filed and the Registrar so directs, paragraph (1) shall fix time as if the notice were a notice of application for leave to appeal against conviction. r. 12 -- 16 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 11 (3) In the full statement of grounds, the appellant may add to, alter, modify, extend or vary the grounds set out in the notice of application for leave to appeal. (4) The full statement of grounds shall set out the grounds relied upon or to be relied upon in precise terms and, once filed, may be amended only with leave of the Court of Appeal. 2.11 Outline of submissions (1) This Rule is subject to Rule 2.14. (2) Within one month after filing the full statement of grounds, the appellant shall file and serve an outline of the appellant's submissions to be made upon the hearing. (3) Within one month after the service of the outline of the appellant's submissions, the respondent shall file and serve— (a) an outline of the respondent's submissions to be made upon the hearing; (b) a summary of the proceedings thus far; and (c) a summary of the evidence. (4) If the appellant intends to make any submission in reply to an outline of submissions served by the respondent, the appellant shall, within 14 days after such service, file and serve an outline of those submissions in reply. (5) At the time of filing and serving an outline of submissions under paragraph (2) or (3), the appellant or respondent, as the case requires, shall file with the Registrar— r. 12 -- 17 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 12 (a) three copies of a list of authorities, which if reported in an authorised series of law reports, are to be cited by that citation; and (b) three copies of any unreported authorities on which it is proposed to rely. (6) As soon as practicable after filing the documents required under paragraph (5), the party concerned shall provide a copy of those documents to the other party to the application or appeal. 2.12 Unrepresented appellant If an appellant is unrepresented— (a) a document may be served by the appellant by delivering to the Registrar at the time of filing an extra copy of the document marked for service upon the respondent; (b) the Registrar may vary, modify or dispense with any of the requirements of Rule 2.10 or 2.11 in order to enable the fair and efficient hearing and determination of the proceeding. 2.13 Noncompliance with Rule 2.10 or 2.11 (1) Subject to Rule 2.12 and this Rule, if an appellant— (a) fails to file a statement of grounds within the time fixed by or under Rule 2.10(2); or r. 12 -- 18 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 13 (b) fails to file an outline of submissions within the time fixed by or under Rule 2.11(2)— the appeal or the application for leave to appeal shall thereupon stand dismissed. (2) When an appeal stands dismissed under paragraph (1) the Registrar shall notify the appellant accordingly. (3) If an appeal stands dismissed under paragraph (1), the Court of Appeal may order that the appeal be reinstated on such terms as it sees fit. (4) An application for reinstatement under paragraph (3) shall be made— (a) on notice supported by an affidavit; and (b) within six months after the appeal or application was dismissed. (5) If an application for reinstatement is refused by a single Judge of Appeal— (a) the Registrar shall notify the appellant of the decision in Form 6–2D (with any necessary modification); and (b) the appellant may then elect to have the application determined by the Court of Appeal constituted by three judges. (6) Rule 2.25 applies to an election under paragraph (5) with any necessary modification. 2.14 Early hearing (1) If the day fixed for the hearing of the appeal or application for leave to appeal is before the expiry of the time fixed by Rule 2.11(2) for the filing of the outline of the appellant's submissions— r. 12 -- 19 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 14 (a) that outline shall be filed and served not less than seven days before the day fixed for the hearing; and (b) Rule 2.13 does not apply. (2) If the day fixed for the hearing of the appeal or application for leave to appeal is before the time fixed by Rule 2.11(3) for the filing by the respondent of any document referred to in that paragraph— (a) that document shall be filed and served by the respondent not less than four days before the day fixed for the hearing; (b) any outline of submissions in reply shall be filed and served not less than one day before the day fixed for the hearing; and (c) Rule 2.13 does not apply. (3) This Rule does not apply when a day is fixed for the hearing by a single Judge of Appeal of an application for leave to appeal against sentence. PART 3—APPEALS UNDER DIVISION 3 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 2.15 Crown appeals (1) A notice of appeal by the DPP under section 287 or 291 of the Act shall— (a) be filed with the Registrar; and (b) set out in full and precise terms the grounds of appeal on which the DPP intends to rely upon the hearing of the appeal. r. 12 -- 20 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 15 Note Section 288(1) of the Act requires the notice of appeal to be filed within 28 days after the day on which the sentence is imposed, subject to any extension under section 313 of the Act. (2) Within seven days after serving notice of appeal, the DPP shall file— (a) a copy of the notice of appeal; and (b) an affidavit of service. Note Section 288(3) of the Act requires notice of appeal against a sentence imposed by an originating court to be served on the respondent within seven days after the day on which the notice is filed. Section 292(3) of the Act requires a notice of appeal for failure to fulfil an undertaking to be served on the respondent within 14 days after the day on which the notice is filed. (3) Within one month after serving notice of appeal, the DPP shall file and serve— (a) a summary of the proceedings thus far; (b) a summary of the evidence; (c) a summary of the issues raised by the appeal; and (d) an outline of the DPP's submissions to be made upon the appeal. (4) Within one month after service of the documents referred to in paragraph (3), the respondent shall file and serve an outline of the respondent's submissions, if any, to be made upon the appeal. (5) The notice of appeal may be amended only with leave of the Court of Appeal. r. 12 -- 21 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 16 PART 4—APPLICATIONS UNDER DIVISION 5 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 2.16 Refusal to reserve question of law— application to show cause An application under section 304 of the Act for an order to show cause why a question of law should not be reserved for determination by the Court of Appeal is commenced by filing with the Registrar an application in Form 6–2E. 2.17 Applicant to file affidavit (1) Within seven days after filing an application under Rule 2.16, the applicant shall file an affidavit stating the acts, facts, matters and circumstances relating to— (a) the refusal of the application under section 302 of the Act to reserve a question of law; (b) the grounds set out in the application as to why the question should be reserved for determination by the Court of Appeal. (2) There shall be included as exhibits to the affidavit— (a) a copy of the order refusing the application under section 302 of the Act to reserve a question of law; and (b) a copy of any reasons given for the refusal— or their absence as exhibits shall be accounted for in the affidavit. r. 12 -- 22 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 17 PART 5—APPEALS UNDER CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 2.18 Commencement of appeal against finding that accused is unfit to stand trial (1) An application for leave to appeal against a finding that an accused is unfit to stand trial is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–2F. Note Section 14A(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 requires the notice of application for leave to appeal to be filed within 28 days after the day on which the finding is made, subject to any extension under that Act. (2) The notice of application for leave to appeal shall state briefly the grounds on which it is sought to appeal. 2.19 Commencement of appeal against verdict of not guilty because of mental impairment (1) An application for leave to appeal against a verdict of not guilty because of mental impairment is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–2G. Note Section 24AA(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 requires the notice of application for leave to appeal to be filed within 28 days after the day on which the finding is made, subject to any extension under that Act. (2) The notice of application for leave to appeal shall state briefly the grounds on which it is sought to appeal. r. 12 -- 23 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 18 2.20 Application may be treated as appeal The Court of Appeal may treat the hearing of the application as the hearing of the appeal. 2.21 No notice of appeal when leave is granted If the Court of Appeal gives leave to appeal, the notice of application for leave to appeal is sufficient notice of appeal. PART 6—APPLICATIONS UNDER DIVISION 7 OF PART 6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT 2009 2.22 Application for extension of time A notice of application for extension of time under section 313 of the Act shall be— (a) in Form 6–2H; and (b) filed when the notice of appeal or notice of application for leave to appeal is filed in accordance with this Order. Note See section 313 of the Act. 2.23 Extension of time before Registrar (1) An application for an order under section 313 of the Act for extension of time shall be made in the first instance to the Registrar. (2) The Registrar shall notify the applicant of the Registrar's decision in writing. (3) If an application is refused— (a) the Registrar shall notify the applicant of his or her decision, in Form 6–2I; and r. 12 -- 24 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 19 (b) the applicant may elect to have the application determined by the Court of Appeal. Note See section 313(2) of the Act. (4) If in the course of deciding to refuse the application the Registrar has considered an affidavit or other material from the Crown, the Registrar shall provide the applicant with a copy of that affidavit or material when notifying the applicant of the decision. 2.24 Extension of time—application to Court of Appeal under section 313(2) (1) An election under Rule 2.23(3) shall be by notice in Form 6–2J which the Registrar shall forward to the applicant when notification of his or her decision is given under Rule 2.23(3). (2) The applicant must return the notice under paragraph (1) to the Registrar within 10 days after receiving it. (3) If a notice is returned to the Registrar in accordance with paragraph (2), the Registrar shall notify the applicant in writing— (a) that the notice has been received; and (b) when appropriate, the day fixed for the hearing by the Court of Appeal. 2.25 Application under section 315—refusal of Judge of Appeal to exercise powers (1) If an application made to a Judge of Appeal under section 315 of the Act is refused by the Judge— (a) the Registrar shall notify the applicant of the decision in Form 6–2D; and r. 12 -- 25 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 20 (b) the applicant may elect to have the application determined by the Court of Appeal constituted by three judges. (2) An election under paragraph (1) shall be by notice in Form 6–2K (with any necessary modification) which the Registrar shall forward to the applicant. (3) The applicant must return the notice under paragraph (2) to the Registrar within 10 days after receiving it. (4) If notice under paragraph (2) is returned to the Registrar in accordance with paragraph (3), the Registrar shall notify the applicant in writing that— (a) the notice has been received; and (b) when appropriate, the day fixed for the hearing by the Court of Appeal. (5) If notice under paragraph (2) is not returned to the Registrar in accordance with paragraph (3), the Registrar shall confirm to the applicant in writing that— (a) by order of the Judge of Appeal, the application made under section 315 of the Act was refused; and (b) no notice of election has been received. PART 7—REFERENCE TO COURT OF APPEAL ON PETITION OF MERCY 2.26 Reference on petition of mercy (1) If the Attorney-General refers a case to the Court of Appeal under section 327(1)(a) of the Act, for the purposes of the Act and this Order, the petitioner whose case is referred shall be taken to be a person who has r. 12 -- 26 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 21 obtained leave to appeal from the Court of Appeal. (2) Unless otherwise directed by the Court of Appeal— (a) the petition shall stand in place of a notice of appeal; and (b) Rules 2.10 and 2.11 shall apply only to the extent, and in the manner, directed by the Court of Appeal. (3) If the Attorney-General refers a point to the judges of the Trial Division under section 327(1)(b) of the Act, the point may be considered in private. PART 8—PROCEDURES 2.27 Time (1) If the last day for doing any act under this Order is a day on which the office of the Court is closed, the act may be done on the next day the office is open. (2) The Court of Appeal or the Registrar may abridge or extend time under this Order before the time expires. (3) The Court of Appeal may abridge or extend time under this Order after the time has expired. (4) When extending time the Court of Appeal or the Registrar may impose conditions or give directions. Note See also section 313 of the Act. r. 12 -- 27 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 22 2.28 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 of Appeal, 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 Act and this Order. 2.29 Procedure for appeal where fine and imprisonment in default (1) If a person who has been convicted and sentenced to pay a fine and in default of payment sentenced to imprisonment intends to appeal to the Court of Appeal on grounds of law alone, this Rule applies. (2) If this Rule applies— (a) the person convicted and sentenced shall inform the trial judge of the intention to appeal; (b) the trial judge may, if of the opinion that it is appropriate, order the intending appellant immediately to enter into a recognizance in Form 6–2L, with or without sureties, to prosecute the appeal; r. 12 -- 28 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 23 (c) the person convicted and sentenced shall within the relevant time period set out in the Act for the type of appeal, file a notice of appeal in accordance with this Order; and (d) the person convicted and sentenced shall, if necessary, file an application under section 313 of the Act for extension of time. (3) If the intending appellant fails to comply with paragraph (2)(c), the Registrar shall report the failure to the Court of Appeal which may, after notice has been given to the intending appellant and any sureties— (a) order forfeiture of the recognizances and payment of the amount of the recognizances to the Registrar immediately; (b) issue a warrant for the arrest of the intending appellant; (c) order the imprisonment of the intending appellant in default of payment of the fine; and (d) make any other order it thinks appropriate. 2.30 Pre-hearing conference (1) After a full statement of the grounds of appeal has been filed under Rule 2.10, the Registrar may, if of the opinion that it is appropriate, conduct a pre-hearing conference. r. 12 -- 29 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 24 (2) The Registrar may give any directions with respect to the preparation for hearing of the appeal as the Registrar thinks appropriate for the effective, complete and prompt disposal of the appeal. (3) If the appellant is not represented and is in custody, the Registrar may conduct any pre- hearing conference with the parties separately. (4) In relation to a Crown appeal, paragraph (3) shall be read and construed as if the word "appellant" were "respondent". 2.31 Transcript of trial (1) At any time after the filing of a notice of appeal or notice of application to appeal, the Registrar may direct the shorthand writers who made notes of the trial from which the appeal or application is brought or the persons who recorded the trial by mechanical means under the Evidence Act 1958 to provide a transcript of the whole or any part of the notes or recording of the trial in writing or electronic form. (2) For the purposes of paragraph (1), the Registrar may direct that the transcript be made by a competent person or persons other than the person or persons who took the notes or recorded the trial. (3) Any transcript required by this Rule— (a) may be produced in writing or electronic form as the Registrar considers appropriate in any case and as he or she directs; and (b) shall be certified in accordance with the Evidence Act 1958. r. 12 -- 30 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 25 (4) If a transcript is not revised by a trial judge within 14 days after the transcript is submitted to the judge for revision, the Registrar may direct that the transcript be provided despite the transcript not being revised. 2.32 Preservation of exhibits (1) The trial judge may make any order or give any direction considered appropriate for the production, custody or disposal of exhibits tendered at the trial and the recording officer of the originating court shall keep a record of any such order or direction, but if no order is made or direction given— (a) all exhibits tendered on behalf of the prosecution shall be returned to the custody of the prosecution and shall be retained pending any appeal; and (b) any exhibit tendered at a trial otherwise than by the prosecution shall be retained by the Associate to the trial judge for 21 days after which the Associate shall return that exhibit to the person who produced it. (2) If the Registrar gives the prosecution a direction to produce an exhibit, the prosecutor shall produce the exhibit as directed. (3) If within 21 days the Registrar gives an Associate a direction to produce an exhibit, the Associate shall produce the exhibit as directed. r. 12 -- 31 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 26 2.33 Copies of transcript, exhibits etc. At any time after the pre-hearing conference, the appellant or the respondent or his or her legal practitioner or representative— (a) may obtain from the Registrar a copy of the transcript of the trial, in writing or electronic form, as the case requires, that the Registrar has directed to be provided under Rule 2.31(1); (b) may obtain from the Registrar a copy of any document which was an exhibit at the trial; and (c) may inspect by arrangement with the Registrar any exhibit which cannot be copied. 2.34 Return of exhibits after hearing (1) When an appeal is finally determined, the Court of Appeal may make orders as to the return of exhibits as it thinks appropriate. (2) If no order is made, each exhibit shall be returned to the person who tendered it unless— (a) it is a document of a kind kept by the recording officer of the court of trial; or (b) it is an exhibit to which section 311 of the Act applies. (3) The Registrar shall return to the recording officer of the originating court when an appeal is finally determined any original depositions, exhibits, presentment, indictment, inquisition, plea or other document forming part of the record of the originating court which was given to the Registrar for the purposes of the appeal. r. 12 -- 32 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 27 2.35 Certificate of conviction (1) The recording officer of an originating court may not issue a certificate of conviction until— (a) 21 days after the date of conviction; or (b) if the recording officer receives notice from the Registrar 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. (2) A person who seeks a certificate of conviction may obtain a certificate from the Registrar stating that no appeal or application for leave to appeal is pending. (3) A certificate under paragraph (2) may not be given until 21 days after the date of conviction. 2.36 Attendance of appellant (1) The appellant is entitled to attend the hearing of an appeal or an application to the Court of Appeal, unless the Court of Appeal or a Judge of Appeal directs otherwise. (2) If the appellant does not attend in court on the hearing, the appeal or the application may be heard and determined in the appellant's absence. (3) If the appellant so elects, he or she may attend before the Court by appearance by audiovisual link, if it is practicable to do so. (4) In relation to a Crown appeal, this Rule shall be read and construed as if the word "appellant" were "respondent". r. 12 -- 33 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 28 2.37 Written case and argument (1) The appellant may, if desired, present the case and argument in writing instead of by oral argument. (2) Any case or argument in writing shall be delivered by the appellant to the Registrar as soon as practicable but not less than seven days before the hearing of the appeal. (3) In relation to a Crown appeal, this Rule shall be read and construed as if the word "appellant" were "respondent". 2.38 Bail (1) If the Court of Appeal grants an appellant bail pending the appeal under section 310 of the Act, the Court may make such orders in relation to bail as it sees fit. Note Under section 315(1)(e) of the Act, this power of the Court of Appeal may be exercised by a single Judge of Appeal. (2) An appellant who is on bail shall, when the appeal is called on before the Court of Appeal, place himself or herself in the custody of such persons as the Court directs. Note See section 323 of the Act for bail following an appeal. 2.39 Registrar to notify determination (1) When an appeal is determined by the Court of Appeal or any matter under section 315 of the Act is determined, the Registrar shall give notice in Form 6–2M to— (a) the appellant; r. 12 -- 34 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 29 (b) the DPP or the Director of Public Prosecutions of the Commonwealth (as the case requires); (c) the governor of the prison in which the appellant is imprisoned; (d) the Secretary to the Department of Justice; and (e) the officer of the originating court. (2) The Registrar shall also notify the officer of the originating court of any additional orders or directions made or given by the Court of Appeal in relation to the appeal. 2.40 Notice of abandonment (1) Subject to Rule 2.49(2), for the purposes of section 314 of the Act an appeal (including an application for leave to appeal or a Crown appeal) or an application for extension of time may be abandoned at any time before the hearing of an appeal is commenced by filing with the Registrar a notice of abandonment in Form 6–2N. (2) A notice of abandonment— (a) shall be signed by the appellant personally; and (b) the appellant's signature shall be witnessed by another person whose name and address shall be stated clearly and legibly on the notice of abandonment. 2.41 Abandonment (1) An appeal or application shall be taken to be dismissed on the date the notice of abandonment is filed. r. 12 -- 35 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 30 (2) Except where the application is to be heard by a single Judge of Appeal under section 315 of the Act, an application for leave to appeal against sentence may not be abandoned less than three days before the day fixed for the hearing of the application, without the leave of the Court. 2.42 Report from trial judge (1) If a report is required under section 316 of the Act, a trial judge shall comply with the requirement promptly. (2) When requiring a trial judge to provide a report under section 316 of the Act, the Registrar shall send the trial judge— (a) a copy of the notice of appeal or of the application for leave to appeal; (b) any other document the Registrar thinks material; and (c) any other document— (i) the Court of Appeal decides should be sent to the trial judge; or (ii) that the trial judge requests. (3) The Court of Appeal may determine an appeal without a report from the trial judge if it thinks it is appropriate to do so. 2.43 Original depositions, exhibits etc. Without limiting section 317 of the Act, the Registrar may require the recording officer of the originating court to provide to the Registrar— (a) the original depositions of witnesses examined before the committing magistrate or coroner; r. 12 -- 36 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 31 (b) any exhibit retained by a 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 originating court. 2.44 Witnesses before Court of Appeal— section 318 (1) If the Court of Appeal orders any witness to attend and be examined before the Court under section 318 of the Act— (a) the order shall specify the time and place when the witness is to attend; and (b) the order shall, unless otherwise ordered, be served by giving a copy of the order to the person to be served. (2) If an appellant is not legally represented and seeks an order under section 318 of the Act, the appellant shall file an application in Form 6–2O with the Registrar. (3) The Registrar shall send a copy of an application under paragraph (2) to the legal practitioner for the respondent. (4) The oath to be administered to any witness whose evidence is to be tendered under section 318 of the Act shall, unless the Court otherwise permits or directs, be the voir dire oath. 2.45 Examination other than by court under section 318(2) (1) If the Court of Appeal orders the examination of a witness to be conducted otherwise than by the Court under section 318(2) of the Act, the order shall specify— r. 12 -- 37 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 32 (a) the person appointed as examiner; and (b) the witnesses to be examined. (2) The Registrar shall give the examiner any documents, exhibits and other material relating to the appeal which the examiner requests. (3) The examiner shall— (a) appoint the day, time and place for the examination; and (b) request the Registrar to give notice in Form 6–2P to— (i) the appellant; (ii) the respondent; (iii) their solicitors; and (iv) if the appellant is in custody, the governor of the prison. (4) A notice sent by the Registrar under paragraph (3) shall be taken to be an order of the Court. (5) The examiner shall administer the oath before taking evidence from any witness except where the witness would not need to be sworn if giving evidence on a trial on indictment. (6) Unless the Court otherwise orders, any examination under this Rule shall be in private and depositions shall be taken. (7) After an examination is completed the examiner shall send or cause to be sent to the Registrar the depositions and all documents, exhibits and other material provided by the Registrar. r. 12 -- 38 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 33 (8) The appellant and respondent and their legal representatives shall be entitled to be present and to take part in the examination. (9) A police officer, if of the opinion that it is necessary, may pay travelling expenses to a witness upon whom the police officer serves— (a) an order to appear before the Court of Appeal; or (b) a notice to attend before an examiner. (10) Travelling expenses paid by a police officer shall be certified by the officer to the Registrar who shall certify the sum paid as part of the expenses of the prosecution. (11) Any order or notice required by this Rule to be served shall be served personally unless the Court otherwise orders. 2.46 Special commissioners—section 320 (1) The Court of Appeal, by order, may appoint a special commissioner under section 320 of the Act. (2) An order under paragraph (1) shall specify— (a) the person who is to be the special commissioner; and (b) the question referred to the special commissioner. (3) An order under paragraph (1) may— (a) specify whether the appellant or the respondent or their legal representatives is or are to be entitled to attend during all or part of the examination or investigation; r. 12 -- 39 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 34 (b) specify which powers (if any) of the Court of Appeal may be exercised by the special commissioner; (c) require the special commissioner to make interim reports upon the matter referred by the Court of Appeal; (d) give the appellant, if imprisoned, leave to attend during the whole or any part of the examination or investigation and give the necessary directions to the governor of the prison; and (e) direct the Registrar to give copies of the special commissioner's report to the appellant and the respondent or to their legal representatives. (4) Where an order under section 320 does not give directions as to any of the matters referred to in paragraph (1), the Court of Appeal may from time to time give directions in relation to any such matters as it thinks fit. Note See section 320(3) of the Act as to remuneration of special commissioners and section 326 as to expenses. 2.47 Entitlement to hearing when restitution order or compensation order made If an order referred to in section 311(1) of the Act 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. 12 -- 40 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 35 (c) with the leave of the Court of Appeal, any other person— may be heard by the Court of Appeal at the hearing of an appeal before any order under section 311(3) or (4) of the Act is made. 2.48 Property subject to restitution order or compensation order For the purposes of section 311(5) of the Act, the trial judge or the Court of Appeal 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. 2.49 Security may be ordered (1) If the trial judge makes an order referred to in section 311(1) of the Act for restitution or for the payment of compensation, the trial judge may direct that the order take effect immediately unless security is given to the satisfaction of the person in whose favour the order is made. (2) A direction under paragraph (1) may be given notwithstanding that the order would otherwise be stayed under section 311 of the Act or Rule 2.48. 2.50 Property subject to order for forfeiture or destruction For the purposes of section 312(3) of the Act, the trial judge or the Court of Appeal may give any direction considered proper— r. 12 -- 41 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 36 (a) for securing the safe custody during the appeal period of property the subject of a forfeiture order or destruction order; or (b) as to the production of any such property at an appeal. 2.51 Custody of property of convicted person The trial judge or the Court of Appeal may make orders or give directions as to the custody, for the appeal period, of any money or other valuable property belonging to a convicted person which— (a) was taken from the convicted person when arrested; or (b) is in the possession of the prosecution at the date of conviction or the date of application for leave to appeal. 2.52 Transfer of prisoners The Secretary to the Department of Justice shall arrange to transfer an appellant who is a prisoner to a prison near the Court of Appeal in sufficient time before the hearing commences to enable the appellant to consult legal advisers. 2.53 Duties of prison officers (1) A prison officer within the meaning of the Corrections Act 1986 who has custody of a person at the time the person is convicted on indictment shall immediately inform the person convicted that— (a) the person has the right to appeal against conviction to the Court of Appeal on any ground of appeal which involves a question of law alone; r. 12 -- 42 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 37 (b) if the person wishes to appeal against conviction on any other ground, the person may do so with the leave of the Court of Appeal; (c) if the person wishes to appeal or to obtain leave of the Court of Appeal, the person must give notice of appeal or notice of application for leave not later than 28 days after conviction and sentence; (d) if the person wishes to appeal against the sentence, the person may do so with the leave of the Court of Appeal and must give notice of the application not later than 28 days after conviction and sentence. (2) The prison officer shall— (a) inform the convicted person that, unless it is otherwise ordered, the person is entitled to attend or appear at the hearing of the appeal or application for leave to appeal or, if it is practicable to do so, to appear by audio visual link; Note See sections 328, 329 and 330 of the Act regarding attendance and appearance. (b) give the convicted person a copy of Form 6–2Q; and (c) obtain from the convicted person a written acknowledgment that the person has received a copy of Form 6–2R and has read and understood it. (3) If a convicted person expresses a wish to attend or appear at the hearing of an appeal or application or to appear by audio visual link, the prison officer who has the custody r. 12 -- 43 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 38 of the person shall inform the Registrar, who shall obtain the necessary order or make the necessary arrangements, as the case may be. (4) A prison officer who has custody of a convicted person shall— (a) give that person upon request the appropriate forms under these Rules; and (b) inform the person that if desired he or she may present the case and argument in writing instead of orally. 2.54 Obligation of prison officers—section 283 appeals If the County Court under section 257, 259 or 262 of the Act substitutes a sentence of imprisonment for any other sentence imposed by the Magistrates' Court, the prison officer who first has custody of the person sentenced shall— (a) immediately inform that person of the right to apply for leave to appeal under section 283 of the Act; (b) give to that person a copy of Forms 6–2C and 6–2R; and (c) obtain from that person a written acknowledgment that the person has received the forms and has read and understood them. __________________". r. 12 -- 44 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 39 13 Order 3 substituted For Order 3 of the Principal Rules substitute— "ORDER 3—INTERLOCUTORY APPEALS UNDER THE CRIMINAL PROCEDURE ACT 2009 3.01 Application of Order This Order applies to appeals under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009. 3.02 Definitions In this Order, unless the context or subject matter otherwise requires— the Act means the Criminal Procedure Act 2009. 3.03 Commencement of interlocutory appeal— section 295 (1) An appeal under section 295 of the Act against an interlocutory decision made in a proceeding is commenced by filing with the Registrar a notice of application for leave to appeal in Form 6–3A. Note Section 298(1) of the Act sets out the time limits for filing the notice of application for leave to appeal, subject to any extension under section 313 of the Act. (2) A notice of application for leave to appeal shall state in precise terms the grounds on which it is sought to appeal. r. 13 -- 45 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 40 3.04 Commencement of application for review of refusal to certify—section 296 (1) An application for review under section 296 of the Act is commenced by filing with the Registrar a notice of application for review in Form 6–3B. Note Section 296 of the Act sets out the time limits for filing the notice of application for review, subject to any extension under section 313 of the Act. (2) A notice of application for review shall state in precise terms the grounds on which it is sought to review the decision. 3.05 Appellant to file affidavit (1) As soon as practicable after filing a notice under Rule 3.03, the applicant shall file and serve an affidavit stating the acts, facts, matters and circumstances relating to— (a) the order under appeal; (b) the grounds set out in the notice of application for leave to appeal; and (c) why leave to appeal should be given. (2) As soon as practicable after filing a notice under Rule 3.04, the applicant shall file and serve an affidavit stating the acts, facts, matters and circumstances relating to— (a) the decision to be reviewed; (b) the grounds set out in the notice of application for review; and (c) why leave to appeal should be given. r. 13 -- 46 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 41 (3) There shall be included as exhibits to the affidavit— (a) a copy of the order under appeal or the decision to be reviewed, as the case requires; and (b) a copy of any reasons given for the order or decision, as the case requires— or their absence as exhibits shall be accounted for in the affidavit. 3.06 Application for leave may be treated as appeal or review (1) The Court of Appeal may treat the hearing of an application for leave to appeal against an interlocutory decision or an application for review of a decision to refuse to certify as the hearing of the appeal or review. (2) If the Court of Appeal grants leave to appeal, the notice of application for leave to appeal, or the notice of application for review of a decision to refuse to certify, as the case requires, is sufficient notice of appeal. __________________ r. 13 -- 47 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 42 ORDER 3A—APPEALS ON A QUESTION OF LAW 3A.01 Definitions 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 question of law An appeal under section 272 of the Act is commenced by filing a notice of appeal in the Trial Division. Note Section 272(3) of the Criminal Procedure Act 2009 requires the notice of appeal to be filed within 28 days after the day on which the order complained of was made. 3A.03 Notice of appeal (1) A notice of appeal under section 272 of the Act shall— (a) be in writing signed by the appellant or the appellant's legal practitioner; (b) set out or state— (i) the order which is the subject of appeal; (ii) whether the appeal is from the whole or part only of the order and, if so, what part; (iii) the question of law upon which the appeal is brought; (iv) concisely the grounds of appeal; r. 13 -- 48 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 43 (v) the order sought in place of that from which the appeal is brought; and (c) at its end, name all the persons on whom it is proposed to serve the notice of appeal. (2) As soon as practicable after filing the notice of appeal, the appellant shall— (a) deliver a copy to the registrar or other proper officer of the Magistrates' Court that made the order the subject of the appeal; (b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal. (3) The requirements under paragraph (2) are in addition to the requirements of 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. (4) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal. 3A.04 Appellant to file affidavit (1) Within seven days after filing notice of appeal, the appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to— (a) the order under appeal; (b) the grounds set out in the notice of appeal; and (c) if leave to appeal is needed, why leave to appeal should be given. r. 13 -- 49 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 44 (2) There shall be included as exhibits to the affidavit— (a) a copy of the order under appeal; and (b) a copy of any reasons given for the order— or their absence as exhibits shall be accounted for in the affidavit. 3A.05 Directions (1) Within seven days after filing notice of appeal, the appellant shall apply on summons to an Associate Judge for directions and, if necessary, for leave to appeal. (2) The application is taken to be made when the summons is filed. (3) Not less than 14 days before the day for hearing named in the summons, the appellant shall serve on the respondent to the appeal the summons together with— (a) a copy of the affidavit filed under Rule 3A.04; and (b) any exhibit. (4) Not less than five days before the day for hearing named in the summons the respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit. (5) If at any time the Associate Judge is satisfied that the hearing of the summons should be expedited, the Associate Judge may of his or her own motion or on application bring the summons on for hearing. (6) Subject to paragraphs (7) and (8), the Associate Judge shall give directions with respect to the appeal. r. 13 -- 50 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 45 (7) If leave to appeal is required— (a) the Associate Judge shall determine whether leave to appeal is given; and (b) if leave to appeal is refused, the Associate Judge shall dismiss the appeal. (8) The Associate Judge may dismiss the appeal if satisfied that— (a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought; (b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or (c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court. 3A.06 Leave to appeal An application for leave to appeal shall be heard and determined by the Associate Judge under Rule 3A.05. Note Section 272(7) of the Act sets out the circumstances in which an appeal is deemed to be an application for leave to appeal. 3A.07 Stay The Court may order any stay necessary for the proper hearing and determination of the application or the appeal. Note See also section 272(6) and (11) of the Act. r. 13 -- 51 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 46 3A.08 Delay and expedition (1) Where the Court is satisfied that the delay caused by proceeding in accordance with this Part would or might entail injustice, the Court may make an order under this Order without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as it thinks fit. (2) The Court may set aside any order made under paragraph (1) on the application of any person affected. (3) Where the Court is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal and may give directions accordingly. 3A.09 Report The Court may call for a report from the Magistrates' Court that made the order from which the appeal is brought, and, if the contents of that report have first been made available to the parties to the appeal, the Court may act upon the report. __________________ r. 13 -- 52 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 47 ORDER 3B—OTHER APPLICATIONS TO COURT OF APPEAL 3B.01 Application of Order This Order 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. 3B.02 Application by summons (1) An application under this Order 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. 3B.03 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. 3B.04 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. r. 13 -- 53 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 48 (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 Order. 3B.05 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. __________________". 14 Order 4 substituted For Order 4 of the Principal Rules substitute— "ORDER 4—CRIMINAL PROCEDURE RULES PART 1—PRE-TRIAL CRIMINAL PROCEDURE 4.01 Definitions In this Order, unless the context or subject matter otherwise requires— CTLD means the Criminal Trial Listing Directorate; the Act means the Criminal Procedure Act 2009. r. 14 -- 54 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 49 4.02 Filing indictment (1) The DPP shall file an indictment by delivering it to the Associate to the Judge of the Court before whom indictment is to be made. Note See also section 159 of the Act. (2) The Associate to the Judge of the Court before whom indictment has been made shall deliver the indictment to the Prothonotary. (3) The DPP must, as soon as practicable after an indictment is filed, forward a copy of the indictment to the CTLD. Note See section 171 of the Act for service of a copy of the indictment on the accused. 4.03 Notice to accompany copy indictment—no legal practitioner representing accused For the purposes of section 171(1)(b) of the Act the form of notice is Form 6–4A. 4.04 Notice by legal practitioner to DPP and CTLD (1) A legal practitioner who commences to act for an accused must, as soon as possible after commencing so to act, serve a notice in Form 6–4B that the legal practitioner acts for the accused upon— (a) the DPP; and (b) the CTLD. (2) Subject to paragraph (3), a legal practitioner who ceases to act for an accused must, as soon as possible after so ceasing to act— r. 14 -- 55 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 50 (a) serve a notice in writing in Form 6–4C that the legal practitioner has ceased so to act upon— (i) the DPP; (ii) the CTLD; and (iii) the accused; (b) return to the CTLD the copy of the depositions and all other material provided by the CTLD in relation to the matter; and (c) return to the DPP all materials provided by the DPP in relation to the matter. (3) Where paragraph (2) applies to an officer of Victoria Legal Aid, the notice shall not be served and the materials shall not be returned until the expiration of the time for appeal against the decision to terminate legal assistance or the resolution of any such appeal (whichever last occurs) but must be respectively served and returned as soon as possible thereafter unless the decision to terminate legal assistance has been reversed. 4.05 Notice by legal practitioner to Prothonotary (1) A legal practitioner who acts for an accused must file with the Prothonotary a notice in Form 6–4B that the legal practitioner so acts— (a) if the legal practitioner has commenced so to act before service of a copy of the indictment, within 14 days after service of the copy indictment; or r. 14 -- 56 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 51 (b) if the legal practitioner commences so to act after service of a copy of the indictment, as soon as possible after commencing so to act. (2) A legal practitioner who having filed a notice under paragraph (1) ceases to act for an accused, must as soon as possible after so ceasing to act file with the Prothonotary a notice in Form 6–4C. Note See also section 249 of the Act. 4.06 Unrepresented accused (1) Within 28 days of the receipt of a copy of an indictment the CTLD must, unless notified that a legal practitioner is acting for an accused— (a) if the accused is on bail, contact the accused requesting attendance at the office of the CTLD at a time fixed by the CTLD to determine what steps the accused has taken to obtain legal representation for the trial and at the time of making such request the CTLD must inform the accused that, if there is no attendance as requested, the Court will require the accused to attend the Court for the same purpose; and (b) if the accused is in custody, attend personally or by a representative on the accused at the place where the accused is held to determine what steps the accused has taken to obtain legal representation for the trial. (2) The CTLD must report to the Principal Judge of the Criminal Division any uncertainty as to the legal representation of an accused in r. 14 -- 57 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 52 order to enable the Principal Judge of the Criminal Division to give directions to the CTLD as to what steps are to be taken to resolve any such uncertainty. 4.07 Questionnaire (1) The CTLD must serve on an accused's legal practitioner a questionnaire in Form 6–4D at such time as the CTLD may consider appropriate. (2) The accused's legal practitioner must, within 14 days of receiving the questionnaire, serve on the CTLD adequate answers in writing to the questions in the questionnaire. 4.08 Case conference (1) In this Rule Listed Date means the date which has been fixed by the CTLD as the date on which the trial is to be listed for hearing or, where the CTLD has fixed a period of time for that purpose, the first day of that period. (2) The CTLD may conduct a case conference— (a) before giving notice of the Listed Date; or (b) not less than 21 days before the Listed Date. (3) Not less than seven days before the date proposed for a case conference, written notice of the case conference must be given to— (a) the DPP; (b) the accused (if unrepresented); and (c) the accused's legal practitioner (if any). r. 14 -- 58 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 53 (4) At a case conference— (a) in order to facilitate an efficient trial, the CTLD may inquire into any of the matters listed in the Schedule to this Rule; (b) the DPP and the accused or the accused's legal practitioner must be prepared to answer questions or provide information to the CTLD on the matters listed in the Schedule to this Rule; (c) the DPP must, subject only to any substantial consideration of the personal safety of witnesses— (i) give notice of the name of any witness who may be called as a Crown witness upon the trial and whose name does not appear upon the indictment as a witness or as an additional witness; (ii) give notice of the substance of the evidence proposed to be adduced from each such witness (whether by way of provision of a copy of a statement made by the witness or otherwise); (iii) provide to the CTLD such information as the CTLD may reasonably require as to the availability of each Crown witness; and (iv) notify the CTLD and the accused of the name of any potential Crown witness whose deposition the Crown proposes to apply to tender in evidence and the r. 14 -- 59 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 54 grounds of any such proposed application; and (d) the accused or the accused's legal practitioner must be prepared to certify that the accused is ready to proceed on the Listed Date (if any). (5) Nothing said by or on behalf of an accused at a case conference, and no failure by an accused to answer a question at a case conference, shall be used in any subsequent trial or made the subject of any comment at that trial. (6) Nothing in paragraph (5) of this Rule shall preclude an accused from relying on an indication of an intention to plead guilty given at a case conference. __________________ r. 14 -- 60 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 55 SCHEDULE Rule 4.08 1. Are further particulars of the indictment likely to be sought by the accused? 2. Is there to be any application to sever the indictment and if so, what is the application likely to be? 3. Is there to be an application for a separate trial by any and which accused? 4. Does the accused presently intend to plead Guilty or Not Guilty to any and which count(s) in the indictment? 5. Is there any possibility of a change of plea? 6. (a) Has there been a conference between counsel for the DPP and counsel for the accused? (b) If not, is such a conference proposed? 7. Does the prosecution propose to call any additional evidence? 8. Has the prosecution notified the accused and/or the accused's representatives of any additional evidence and if it intends to do so when is it proposed to furnish a proof of evidence? 9. What is the probable length of trial? (a) prosecution estimate; (b) accused estimate. 10. Is any point of law or of admissibility of evidence likely to be raised before a jury is empanelled? If yes, what are those matters and of what duration are the matters to be raised likely to take? r. 14 -- 61 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 56 11. Does the accused or the prosecution intend to raise a special issue? e.g. unfitness to plead; change of venue; insanity. 12. Does the accused or the prosecution intend to raise a special plea? e.g. lack of jurisdiction; previous conviction; previous acquittal etc. 13. Does the accused intend to rely upon an alibi not yet disclosed in conformity with the Criminal Procedure Act 2009? 14. Do the parties anticipate any problems as to the availability of witnesses? If yes, give details. 15. (a) What admissions of fact are sought by the prosecution? (b) Is the accused prepared to make the admissions sought or any of them? (c) What admissions of fact are sought by the accused? (d) Is the prosecution prepared to make the admissions sought or any of them? 16. Does any difficulty arise about photographs or plans and formal proof of them? 17. Is any order sought for the inspection of prosecution exhibits or other evidentiary material in the possession of the prosecution as to which a question may arise in the course of the trial? 18. Is any order sought for the preservation or detention of any document or thing relating to the trial? 19. Is any order sought for the production before the Court of any document, tape recording or thing relating to the trial? r. 14 -- 62 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 57 20. Does any party propose to deliver to the other party a notice to admit in respect of anything not covered by question No. 15? 21. What arrangements have been made for counsel to hear any tape recordings in the custody of the prosecution and to be provided with any transcript of them? 22. Does any party intend to apply for a view, and if so where and at what stage of the trial? 23. Is there agreement as to copy exhibits to be supplied to the jury? 24. Will an interpreter be required during the trial? 25. Are there any other significant matters which might affect the proper and convenient trial of the issues? __________________ r. 14 -- 63 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 58 PART 2—NOTICES UNDER THE ACT AND GENERAL MATTERS 4.09 Commonwealth DPP This Order applies, with any necessary modification, to the Commonwealth DPP in the same manner as it applies to the DPP. 4.10 DPP to specify sections in notice given under the Act In any notice given under the Act, the DPP must specify the section of the Act under which that notice is given. 4.11 Notice of alibi For the purposes of section 190(1) of the Act notice of alibi shall be in Form 6–4E. 4.12 Recording of time and date of arraignment The time and date of arraignment of an accused shall be recorded in the records of the Court. Note See sections 210, 215 and 217 of the Act. 4.13 Notice of intention to plead guilty to remaining charges in indictment For the purposes of section 216(1)(b) of the Act notice of intention by the accused to plead guilty to the remaining charges in an indictment shall be in Form 6–4F. __________________". r. 14 -- 64 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 59 15 New Order 15 After Order 14 of the Principal Rules insert— "ORDER 15—IDENTITY CRIME RULES 15.01 Identity crime certificate An identity crime certificate issued under section 89F of the Sentencing Act 1991 may be in Form 6–15A. 15.02 Notice to prosecutor to assist Notice under section 89H(2) of the Sentencing Act 1991 directed to a person who prosecuted an identity crime offence within the meaning of that Act to appear at the hearing of an application for an identity crime certificate to provide assistance to the Court in relation to the application may be in Form 6–15B. __________________". r. 15 -- 65 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 60 16 Forms substituted—Order 2 For Forms 6–2A to 6–2P of the Principal Rules substitute— "Rule 2.05(1) FORM 6–2A IN THE SUPREME COURT OF VICTORIA 20 No. AT The Queen v. A.B. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION To the Registrar of Criminal Appeals: I, [full name] am convicted of the offence of [description of offence] and I am *a prisoner at [place]/*living at [place of residence]. I WISH TO APPEAL to the Court of Appeal under section 274 of the Criminal Procedure Act 2009 against my conviction (particulars of which are set out below). TAKE NOTICE that I apply to the Court of Appeal for leave to appeal against my conviction on the ground(s): [state briefly the grounds upon which you wish to appeal against the conviction.] Date: [Signed by Applicant or legal practitioner on behalf of Applicant] *[If signed by legal practitioner] The name and address for service are as follows: [insert details] PARTICULARS 1. Applicant's name: 2. Offence for which convicted and in relation to which it is sought to appeal: 3. Convicted at: [place and court] 4. Trial Judge: r. 16 -- 66 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 61 5. Date of conviction: 6. Sentence: 7. Date of sentence: 8. Name and address of legal practitioner who represented applicant at trial: 9. Name of counsel (if any) who represented applicant at trial: 10. State whether you wish to personally attend the hearing of this proceeding: 11. State whether you wish to appear by audio visual link at the hearing of this proceeding. IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend in Court at the hearing of your application, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 10 and 11 above accordingly or otherwise notify the Registrar in writing of your wish. 2. If you wish the Court, on the hearing of your application, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 3. Your attention is drawn to the procedure that follows the filing of your notice of application for leave to appeal. Unless otherwise directed by the Registrar or the Court— (a) within two months after filing the notice of application for leave to appeal, you must file with the Registrar and serve on the respondent a full statement of the grounds upon which you intend to rely on appeal, if leave to appeal is given. This need not follow the grounds stated in your notice of application for leave to appeal, but in the new document the grounds must be stated fully, precisely and in detail; and (b) within one month after filing the full statement of grounds, you must file with the Registrar and serve on the respondent an outline of the submissions to be relied upon on the hearing of your application. Failure to comply with these requirements may result in your application standing dismissed. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under section 313 of the Criminal Procedure Act 2009. 4. The Court may treat the hearing of this application as the hearing of the appeal. r. 16 -- 67 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 62 5. An application for leave to appeal against conviction may be abandoned at any time before the hearing of the application by filing with the Registrar a notice of abandonment in the appropriate form. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 68 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 63 Rule 2.05(2) FORM 6–2B IN THE SUPREME COURT OF VICTORIA 20 No. AT The Queen v. A.B. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE To the Registrar of Criminal Appeals: I, [full name] am convicted of the offence of [description of offence] and I am *a prisoner at [place]/*living at [place of residence]. I WISH TO APPEAL to the Court of Appeal under section 278 of the Criminal Procedure Act 2009 against my sentence (particulars of which are set out below). TAKE NOTICE that I apply to the Court of Appeal for leave to appeal against my sentence on the ground(s): [state briefly the grounds upon which you wish to appeal against the sentence.] Date: [Signed by Applicant or legal practitioner on behalf of Applicant] *[If signed by legal practitioner] The name and address for service are as follows: [insert details] PARTICULARS 1. Applicant's name: 2. Offence for which convicted and in relation to which it is sought to appeal: 3. Convicted at: [place and court] 4. Sentencing Judge: 5. Date of conviction: 6. Sentence: r. 16 -- 69 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 64 7. Date of sentence: 8. Name and address of legal practitioner who represented applicant at trial: 9. Name of counsel (if any) who represented applicant at trial: 10. State whether you wish to personally attend the hearing of this proceeding: 11. State whether you wish to appear by audio visual link at the hearing of this proceeding. IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend in Court at the hearing of your application, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 10 and 11 above accordingly or otherwise notify the Registrar in writing of your wish. 2. If you wish the Court, on the hearing of your application, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 3. Your attention is drawn to the procedure that follows the filing of your notice of application for leave to appeal. If your application for leave to appeal against your sentence is granted then, unless otherwise directed by the Registrar or the Court— (a) within one month after the granting of leave to appeal, you must file with the Registrar and serve on the respondent a full statement of the grounds on which you intend to rely on appeal. This need not follow the grounds stated in your notice of application for leave to appeal, but in the new document the grounds must be stated fully, precisely and in detail; and (b) within one month after filing the full statement of grounds, you must file with the Registrar and serve on the respondent an outline of the submissions to be relied upon on the hearing of your application. Failure to comply with these requirements may result in your application standing dismissed. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under section 313 of the Criminal Procedure Act 2009. 4. The Court may treat the hearing of this application as the hearing of the appeal. r. 16 -- 70 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 65 5. An application for leave to appeal against sentence may be abandoned not less than three days before the day fixed for the hearing of the application by filing with the Registrar a notice of abandonment in the appropriate form. 6. You should be aware that the Court has the power under section 281 of the Criminal Procedure Act 2009 to impose a sentence which is more or less severe than the sentence which is appealed against. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 71 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 66 Rules 2.06, 2.54 FORM 6–2C IN THE SUPREME COURT OF VICTORIA 20 No. AT BETWEEN A.B. Appellant and C.D. Respondent NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IMPOSED BY COUNTY COURT ON APPEAL FROM MAGISTRATES' COURT UNDER SECTION 283 OF THE CRIMINAL PROCEDURE ACT 2009 To the Registrar of Criminal Appeals: I, [full name], am convicted of the offence of [description of offence] and I am a prisoner at [name of prison]. TAKE NOTICE THAT I APPLY to the Court of Appeal under section 283 of the Criminal Procedure Act 2009 for leave to appeal to the Court of Appeal against the sentence of [details of sentence] passed upon me by the County Court. The grounds on which I apply are: [set out specifically and concisely and not merely in general terms the grounds on which you intend to appeal]. PARTICULARS 1. Name of applicant: 2. Offence for which convicted and in relation to which it is sought to appeal: 3. Originally convicted at the Magistrates' Court at [place of Court] and sentenced to [sentence or other order imposed by the Magistrates' Court]; 4. Sentence substituted by County Court: 5. Sentencing Judge: 6. Date sentence of County Court imposed: Date: [Signed by Applicant] __________________ r. 16 -- 72 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 67 Rules 2.13, 2.25 FORM 6–2D [heading as in Form 6–2A] NOTIFICATION TO APPLICANT OF SINGLE JUDGE'S DECISION UNDER SECTION 315 OF THE CRIMINAL PROCEDURE ACT 2009 To: [name of applicant] I NOTIFY YOU that after consideration of your application for *leave to appeal/*review of refusal to certify under section 295(3) of the Criminal Procedure Act 2009/*extension of time within which notice of appeal or application for leave to appeal may be given/*bail/*stay of sentence has been refused by [insert name of Judge] acting under section 315 of the Criminal Procedure Act 2009. If you wish to elect to have your application determined by the Court of Appeal constituted by three judges, complete the enclosed election form and return it to me within 10 DAYS after you receive this notification. Date: [Signed] * Delete if not applicable __________________ r. 16 -- 73 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 68 Rule 2.16 FORM 6–2E IN THE SUPREME COURT OF VICTORIA 20 No. AT BETWEEN A.B. Appellant and C.D. Respondent APPLICATION UNDER SECTION 304 OF THE CRIMINAL PROCEDURE ACT 2009 TO SHOW CAUSE WHY A QUESTION OF LAW SHOULD NOT BE RESERVED FOR DETERMINATION BY COURT OF APPEAL To the Registrar of Criminal Appeals: I, [full name of applicant], APPLY to the Court of Appeal under section 304 of the Criminal Procedure Act 2009 for an order calling on the *County Court/*Trial Division of the Supreme Court and the respondent to show cause why the question of law specified below should not be reserved for determination by the Court of Appeal. The question of law is: [set out specifically and concisely the question of law to which this application relates]. The proceeding in which the question arose is: Date: [Signed by Applicant] __________________ r. 16 -- 74 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 69 Rule 2.18 FORM 6–2F IN THE SUPREME COURT OF VICTORIA 20 No. AT The Queen v. A.B. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST FINDING OF UNFITNESS TO STAND TRIAL To the Registrar of Criminal Appeals: I, [full name], have been found unfit to stand trial in relation to the offence of [description of offence] and I am *a prisoner at [place]/*living at [place of residence]. I WISH TO APPEAL to the Court of Appeal under section 14A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against the finding that I am unfit to stand trial (particulars of which are set out below). TAKE NOTICE that I apply to the Court of Appeal for leave to appeal against the finding that I am unfit to stand trial on the ground(s): [state briefly the grounds upon which you wish to appeal against the finding]. Date: [Signed by Applicant or legal practitioner on behalf of Applicant] *[If signed by legal practitioner] The name and address for service are as follows: [insert details] PARTICULARS 1. Applicant's name: 2. Offence to which the finding against which it is sought to appeal relates: 3. Criminal proceeding held at: [place and court] 4. Trial Judge: 5. Date of finding: 6. Name and address of legal practitioner who represented applicant at trial: r. 16 -- 75 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 70 7. Name of counsel (if any) who represented applicant at trial: 8. State whether you wish to personally attend the hearing of this proceeding: 9. State whether you wish to appear by audio visual link at the hearing of this proceeding. IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend in Court at the hearing of your application, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 8 and 9 above accordingly or otherwise notify the Registrar in writing of your wish. 2. If you wish the Court, on the hearing of your application, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 3. Your attention is drawn to the procedure that follows the filing of your notice of application for leave to appeal. Unless otherwise directed by the Registrar or the Court— (a) within two months after filing the notice of application for leave to appeal, you must file with the Registrar and serve on the respondent a full statement of the grounds upon which you intend to rely on appeal, if leave to appeal is given. This need not follow the grounds stated in your notice of application for leave to appeal, but in the new document the grounds must be stated fully, precisely and in detail; and (b) within one month after filing the full statement of grounds, you must file with the Registrar and serve on the respondent an outline of the submissions to be relied upon on the hearing of your application. Failure to comply with these requirements may result in your application standing dismissed. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under the Act. 4. The Court may treat the hearing of this application as the hearing of the appeal. 5. An application for leave to appeal may be abandoned at any time before the day fixed for the hearing of the application by filing with the Registrar a notice of abandonment in the appropriate form. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 76 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 71 Rule 2.19 FORM 6–2G IN THE SUPREME COURT OF VICTORIA 20 No. AT The Queen v. A.B. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST MENTAL IMPAIRMENT VERDICT To the Registrar of Criminal Appeals: I, [full name], am found not guilty because of mental impairment of the offence of [description of offence] and I am *a prisoner at [place]/*living at [place of residence]. I WISH TO APPEAL to the Court of Appeal under section 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against that verdict (particulars of which are set out below). TAKE NOTICE that I apply to the Court of Appeal for leave to appeal against the verdict that I am not guilty because of mental impairment on the ground(s): [state briefly the grounds upon which you wish to appeal against the verdict]. Date: [Signed by Applicant or legal practitioner on behalf of Applicant] *[If signed by legal practitioner] The name and address for service are as follows: [insert details] PARTICULARS 1. Applicant's name: 2. Offence for which verdict of not guilty because of mental impairment was recorded against which it is sought to appeal: 3. Criminal proceeding held at: [place and court] 4. Trial Judge: 5. Date of verdict: r. 16 -- 77 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 72 6. Name and address of legal practitioner who represented applicant at trial: 7. Name of counsel (if any) who represented applicant at trial: 8. State whether you wish to personally attend the hearing of this proceeding: 9. State whether you wish to appear by audio visual link at the hearing of this proceeding. IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend in Court at the hearing of your application, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 8 and 9 above accordingly or otherwise notify the Registrar in writing of your wish. 2. If you wish the Court, on the hearing of your application, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 3. Your attention is drawn to the procedure that follows the filing of your notice of application for leave to appeal. Unless otherwise directed by the Registrar or the Court— (a) within two months after filing the notice of application for leave to appeal, you must file with the Registrar and serve on the respondent a full statement of the grounds upon which you intend to rely on appeal, if leave to appeal is given. This need not follow the grounds stated in your notice of application for leave to appeal, but in the new document the grounds must be stated fully, precisely and in detail; and (b) within one month after filing the full statement of grounds, you must file with the Registrar and serve on the respondent an outline of the submissions to be relied upon on the hearing of your application. Failure to comply with these requirements may result in your application standing dismissed. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under the Act. 4. The Court may treat the hearing of this application as the hearing of the appeal. r. 16 -- 78 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 73 5. An application for leave to appeal may be abandoned at any time before the day fixed for the hearing of the application by filing with the Registrar a notice of abandonment in the appropriate form. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 79 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 74 Rule 2.22 FORM 6–2H [heading as in Form 6–2A] APPLICATION FOR EXTENSION OF TIME TO *FILE/*SERVE NOTICE OF APPEAL OR NOTICE OF APPLICATION TO APPEAL To the Registrar of Criminal Appeals: I, [full name], am convicted of the offence of [description of offence] and I am *a prisoner at [place]/*living at [place of residence]. I APPLY to the *Registrar of Criminal Appeals/*Court of Appeal under section 313 of the Criminal Procedure Act 2009 for an extension of time within which to *file/*serve notice of appeal or notice of application for leave to appeal to the Court of Appeal under Part 6.3 of Chapter 6 of that Act (particulars of which are set out below). The reasons I failed to *file/*serve a notice within the prescribed time and the ground(s) upon which I make this application are: [state specifically and concisely and not merely in general terms the grounds of the application]. Date: [Signed by Applicant] PARTICULARS 1. Applicant's name: 2. Offence for which convicted: 3. Convicted at: [place and Court] 4. Trial or sentencing Judge: 5. Date of conviction: 6. Sentence: 7. Date of sentence: IMPORTANT NOTE: This notice must accompany the notice of appeal or notice of application for leave to appeal. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 80 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 75 Rule 2.23 FORM 6–2I [heading as in Form 6–2A] NOTIFICATION TO APPLICANT OF REGISTRAR'S DECISION UNDER SECTION 313 OF THE CRIMINAL PROCEDURE ACT 2009 To: [name of applicant] I NOTIFY YOU that after consideration of your application for extension of time for *filing/*serving notice of appeal or notice of application for leave to appeal your application has been refused. If you wish to elect to have the refused application determined by the Court of Appeal, complete the enclosed election form and return it to me within 10 DAYS after you receive this notification. Date: [Signed] * Delete if not applicable __________________ r. 16 -- 81 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 76 Rule 2.24 FORM 6–2J [heading as in Form 6–2A] ELECTION TO HAVE EXTENSION OF TIME DETERMINED BY THE COURT OF APPEAL To the Registrar of Criminal Appeals: I, [full name], having received your notification that you have refused my application for extension of time within which notice of appeal or application for leave to appeal may be *filed/*served, GIVE NOTICE that I elect to have my application determined by the Court of Appeal. I wish *to attend at the hearing of my application; *to appear by audio visual link. Date: [Signed by Applicant] [Signed by Witness] [Name and Address of Witness] * Delete if not applicable NOTE: You must include any reasons additional to those set out in your original application which you wish to have considered by the Court of Appeal. Attach additional material if you wish. __________________ r. 16 -- 82 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 77 Rule 2.25 FORM 6–2K [heading as in Form 6–2A] ELECTION TO HAVE APPLICATION UNDER SECTION 315 OF THE CRIMINAL PROCEDURE ACT 2009 DETERMINED BY COURT OF APPEAL To the Registrar of Criminal Appeals: I, [full name], having received your notification that my application for *leave to appeal/*review of refusal to certify under section 295(3) of the Criminal Procedure Act 2009/*extension of time within which notice of appeal or application for leave to appeal may be given/*bail/*stay of sentence has been refused by a single Judge of Appeal under section 315 of that Act, GIVE NOTICE that I elect to have my application determined by the Court of Appeal constituted by three judges. I wish *to attend the hearing of my application; *to appear by audio visual link. Date: [Signed by Applicant] [Signed by Witness] [Name and Address of Witness] * Delete if not applicable IMPORTANT NOTES: 1. Unless otherwise directed by the Registrar or the Court, you must, within one month after returning to the Registrar this application, file with the Registrar and serve on the respondent an outline of the submissions to be relied upon on the hearing of your application. 2. Failure to comply with note 1 may result in your application standing dismissed. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under section 313 of the Criminal Procedure Act 2009. 3. If you wish the Court, on the hearing of your application, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 4. The Court may treat the hearing of the application for leave to appeal as the hearing of the appeal. r. 16 -- 83 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 78 5. You should be aware that the Court has the power under section 281 of the Criminal Procedure Act 2009 to impose a sentence which is more or less severe than the sentence which is appealed against. 6. An application for leave to appeal against sentence may be abandoned not less than three days before the day fixed for the hearing of the application by filing with the Registrar a notice of abandonment in the appropriate form. __________________ r. 16 -- 84 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 79 Rule 2.29 FORM 6–2L RECOGNIZANCE OF APPELLANT SENTENCED TO PAY A FINE (AND SURETY) 1. [full name] of [address] was on [date] convicted of [offences] and was sentenced to pay the sum of $ as a fine by the *Supreme/*County Court; and 2. *He/*She has indicated a wish to appeal against the conviction on *a question of law under section 272 of the Criminal Procedure Act 2009; and 3. The Court considers that the appellant may instead of payment of the fine be ordered to enter into a recognizance of bail for the sum of $ with [number] sureties each for the sum of $ to prosecute the appeal before the Court of Appeal. [full name] of [address] acknowledges *himself/*herself to owe to the State of Victoria the sum of $ to be satisfied by or out of *his/*her goods, chattels, lands and tenements, if* he or *she breaches the condition(s) set out below. Taken and acknowledged on [date] at the *Supreme Court/*County Court, before [name of Judge]. [Signed] Associate to Judge The condition(s) of the recognizance are that if [full name] of [address]— 1. personally attends the Court of Appeal at every hearing of the appeal and at its final determination and prosecutes the appeal and abides by the judgment of the Court and not be absent from any hearing without leave and pay to the Registrar of Criminal Appeals the sum of $ , or such sum as the Court may order; and 2. [Insert any other conditions] then this recognizance shall be void; but otherwise it shall be of full force and effect. RECOGNIZANCE OF SURETY On [date] [insert name(s) and address(es) of surety(ies)] personally come before [name of Judge] and individually acknowledged themselves to owe the State of Victoria [insert sum in respect of which surety is bound] to be satisfied by or out of their respective goods, chattels, lands and tenements if [name of appellant] now before the Court breaches the condition(s) set out above. r. 16 -- 85 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 80 Taken and acknowledged on [date] at the *Supreme Court/*County Court before [name of Judge]. [Signed] Associate to Judge ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 86 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 81 Rule 2.39 FORM 6–2M [heading as in Form 6–2A] NOTIFICATION OF RESULT OF APPEAL OR APPLICATION In the case of R v. [name of appellant] TAKE NOTICE that the Court of Appeal has considered— * the appeal and has decided [complete appropriately]; * the application for— * leave to appeal to the Court; * extension of time for *filing/*serving notice of appeal or application for leave to appeal; * bail and has decided [complete appropriately]. Date: [Signed] Registrar of Criminal Appeals ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 87 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 82 Rule 2.40 FORM 6–2N [heading as in Form 6–2A] NOTICE OF ABANDONMENT To the Registrar of Criminal Appeals: I, [full name], *a prisoner at [place]/*living at [place of residence] give notice that I wish to abandon my *appeal/*application for leave to appeal dated [insert date] against *conviction/*and sentence/*and my application for an extension of time within which to *file/*serve notice of appeal or application for leave to appeal dated [insert date]. Date: [Signed by Appellant/ Applicant] [Signed by Witness] [Name and Address of Witness] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 88 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 83 Rule 2.44 FORM 6–2O [heading as in Form 6–2A] APPELLANT'S APPLICATION FOR EXAMINATION OF FURTHER WITNESS(ES) To the Registrar of Criminal Appeals: I, [name of appellant], an appellant in the Court of Appeal, request you to take notice that I desire that the Court order the witness(es) named below to attend the Court and be examined on my behalf. PARTICULARS 1. State name(s) and address(es) of witness(es). 2. Was the witness, or if more than one, which ones, examined at the trial? 3. If the answer to question 2 is "no", give reasons why the witness or witnesses were not examined. 4. What do you want the witness(es) to be examined on? State clearly the evidence you think the witness(es) can give. Date: [Signed] Appellant __________________ r. 16 -- 89 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 84 Rule 2.45 FORM 6–2P [heading as in Form 6–2A] NOTICE TO WITNESS TO ATTEND BEFORE EXAMINER To: [name of witness or person to whom notice is to be given] The Court of Appeal has ordered that [name(s) of witness(es)] be examined as *a witness/*witnesses upon the appeal of [name of appellant] and that depositions are to be taken for the use of the Court. You, [name of witness], are to attend at [place] at [time] on [date] to be examined. You must bring with you to the appeal any books, papers or other material which you have received notice to produce. Date: [Signed] Registrar of Criminal Appeals ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable __________________ r. 16 -- 90 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 85 Rule 2.53 FORM 6–2Q NOTICE TO PRISONER WHO WISHES TO APPEAL 1. If a person convicted in the Supreme Court or the County Court wishes to appeal to the Court of Appeal against conviction under section 274 of the Criminal Procedure Act 2009, the person must file a notice of application for leave to appeal against conviction in the prescribed form with the Registrar of Criminal Appeals of the Supreme Court within 28 days after conviction and sentence. 2. The notice of application for leave to appeal must state specifically and not merely in general terms the grounds upon which it is desired to appeal. 3. A person who has been sentenced and who wishes to appeal against the sentence under section 278 or 283 of the Criminal Procedure Act 2009 must file a notice of application for leave to appeal against sentence in the prescribed form with the Registrar of Criminal Appeals of the Supreme Court within 28 days after sentence. 4. Separate notices must be lodged for (a) an appeal against conviction and (b) an appeal against sentence. 5. Under section 313 of the Criminal Procedure Act 2009 it is possible to apply for an extension of these time limits. __________________ r. 16 -- 91 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 86 Rules 2.53, 2.54 FORM 6–2R INFORMATION FOR PERSONS UPON WHOM A SENTENCE OF IMPRISONMENT HAS BEEN IMPOSED BY THE COUNTY COURT UPON APPEAL FROM THE MAGISTRATES' COURT IN SUBSTITUTION FOR OTHER SENTENCE IMPOSED BY THE MAGISTRATES' COURT 1. If— (a) a person has appealed to the County Court from the Magistrates' Court against a conviction, a sentence or other order of the Magistrates' Court; and (b) the County Court has substituted on that person a sentence of imprisonment instead of the sentence imposed by the Magistrates' Court; and (c) the sentence originally imposed by the Magistrates' Court was not a sentence of imprisonment— that person may apply to the Court of Appeal for leave to appeal to the Court of Appeal under section 283 of the Criminal Procedure Act 2009 against the sentence imposed by the County Court. 2. If you wish to appeal against the sentence imposed by the County Court then, within 28 days after that sentence has been imposed, you or your legal practitioner must serve or cause to be served a NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE UNDER SECTION 283 OF THE CRIMINAL PROCEDURE ACT 2009 on each of— (a) the informant; and (b) the Director of Public Prosecutions— and must file or cause to be filed a copy of the notice with the Registrar of Criminal Appeals. 3. The notice must be in Form 6–2C. A copy of that Form must be given to you with this notice. __________________". r. 16 -- 92 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 87 17 New Order 3 Forms For Forms 6–3A and 6–3B of the Principal Rules substitute— "Rule 3.03 FORM 6–3A IN THE SUPREME COURT OF VICTORIA 20 No. AT The Queen v. A.B. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST INTERLOCUTORY DECISION To the Registrar of Criminal Appeals: I, [full name], am a party to a proceeding in the *County Court/*Trial Division of the Supreme Court for the prosecution of an indictable offence. I GIVE NOTICE THAT I wish to appeal under section 295 of the Criminal Procedure Act 2009 against the interlocutory decision made in that proceeding [state briefly interlocutory decision against which it is intended to appeal]. The ground(s) of my appeal are: [state precisely the grounds of the appeal] Date: [Signed by Appellant or legal practitioner on behalf of Appellant] PARTICULARS 1. Appellant's name: 2. Proceeding in which interlocutory decision was made: 3. Trial Judge who made interlocutory decision: 4. Certificate of Judge under section 295(3) of the Criminal Procedure Act 2009 who made the interlocutory decision attached? *YES/*NO. 5. Name and address of legal practitioner who represents appellant at trial: 6. Name of counsel (if any) who represents appellant at trial: 7. State whether you wish to attend the hearing of this proceeding: r. 17 -- 93 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 88 8. State whether you wish to appear by audio visual link at the hearing of this proceeding. IMPORTANT NOTES: 1. Unless the Court directs otherwise, you may, if you wish, attend Court at the hearing of your appeal, or appear by audio visual link if that is practicable. If you wish to do either of these things, you should complete paragraphs 7 and 8 above accordingly or otherwise notify the Registrar in writing of your wish. 2. Any extension of time (if needed) should be sought from the Registrar or the Court of Appeal under section 313 of the Criminal Procedure Act 2009. 3. If you wish the Court, on the hearing of your appeal, to consider your case in writing without the presentation of oral argument, you should inform the Registrar accordingly. 4. An interlocutory appeal may be abandoned at any time before the hearing of the appeal by filing with the Registrar a notice of abandonment in the appropriate form. * Delete if not applicable __________________ r. 17 -- 94 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 89 Rule 3.04 FORM 6–3B [heading as in Form 6–3A] NOTICE OF APPLICATION FOR REVIEW OF REFUSAL OF JUDGE TO CERTIFY UNDER SECTION 295(3) OF CRIMINAL PROCEDURE ACT 2009 To the Registrar of Criminal Appeals: I, [full name], am a party to a proceeding in the *County Court/*Trial Division of the Supreme Court for the prosecution of an indictable offence. *Judge/*Justice [name of Judge] in that proceeding has refused to certify under section 295(3) of the Criminal Procedure Act 2009 so that an appeal against and interlocutory decision of that Judge may be made. I APPLY to the Court of Appeal under section 296 of that Act for a review of the decision of the Judge to refuse to certify. The ground(s) of my application for review are: [state precisely the grounds of the application for review] Date: [Signed by Appellant or legal practitioner on behalf of Appellant] * Delete if not applicable __________________". r. 17 -- 95 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 90 18 Order 4 Forms substituted For Forms 6–4A to 6–4E of the Principal Rules substitute— "Rule 4.03 FORM 6–4A IN THE SUPREME COURT OF VICTORIA AT The Queen v. [name of accused] NOTICE TO ACCUSED UNDER SECTION 171 OF THE CRIMINAL PROCEDURE ACT 2009 The Director of Public Prosecutions does not have any notice that you are represented by a legal practitioner in relation to the charges set out in the copy of the indictment which accompanies this notice. You should seek legal representation as soon as possible and you have the right, if eligible, to legal aid under the Legal Aid Act 1978. You should take this notice and the indictment to your legal practitioner or to Victoria Legal Aid without delay. If you wish to be legally aided in this matter, your legal practitioner or Victoria Legal Aid will be able to assist in your application for legal aid. Victoria Legal Aid can be contacted at [insert contact details]. __________________ r. 18 -- 96 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 91 Rules 4.04, 4.05 FORM 6–4B IN THE SUPREME COURT OF VICTORIA AT The Queen v. [name of accused] NOTICE THAT LEGAL PRACTITIONER ACTS Date of committal for trial: [if any] Committed for trial on: [charges on which accused committed] Date of indictment: [if any] Charges indicated by indictment: TAKE NOTICE that the legal practitioner (or firm) indicated below acts for the accused [name(s)] in this matter. Date: [Signed] Name of legal practitioner (or firm): Address of legal practitioner (or firm): Telephone number: Name of person handling matter: Present address of accused: NOTES 1. This notice must be sent to the DPP and to the Criminal Trial Listing Directorate as soon as possible after a legal practitioner [other than a barrister] commences to act for an accused. 2. This notice must be filed with the Prothonotary after a copy of an indictment has been served. __________________ r. 18 -- 97 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 92 Rule 4.05 FORM 6–4C [heading as in Form 6–4B] NOTICE THAT LEGAL PRACTITIONER HAS CEASED TO ACT Date of committal for trial: [if any] Committed for trial on: [charges on which accused committed] Date of indictment: [if any] Charges indicated by indictment: TAKE NOTICE that the legal practitioner (or firm) indicated below has ceased to act for the accused [name(s)] in this matter. Filed: [Signed] NOTES 1. This notice must be served on— • the DPP, and • the CTLD, and • the former client— as soon as possible after a legal practitioner [other than a barrister] has ceased to act for an accused. 2. As soon as possible after ceasing to act for an accused, the legal practitioner must return— • to the CTLD, the copy depositions in relation to the matter; • to the DPP, all materials provided by the DPP in relation to the matter. 3. If a Notice under Rule 4.04(1) has been filed with the Prothonotary, this notice must be filed with the Prothonotary as soon as possible after a legal practitioner ceases to act for an accused. __________________ r. 18 -- 98 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 93 Rule 4.07 FORM 6–4D [heading as in Form 6–4B] QUESTIONNAIRE To: [legal practitioner for accused] The trial of [name of accused] is now— * [if a bail case] ready to be listed; * [if sexual offence case] required to be commenced by [insert date]; * [if a remand case] proposed to be listed not later than [insert date]; * proposed to be listed for hearing on [insert date]. Under Rule 4.07 of Chapter VI of the Supreme Court Rules YOU ARE REQUIRED WITHIN 14 DAYS to answer the following questions and to return the answers to the Criminal Trial Listing Directorate. 1. Is your firm acting for [name of accused]? YES/NO 2. Have you (or your firm) made arrangements satisfactory to you (or your firm) for payment of legal costs in relation to this matter? YES/NO 3. Will your firm represent [accused] on the trial? YES/NO 4. If NO to question 1: (a) Do you understand that [accused] has other legal representation? YES/NO If YES, please state the name and address of that other practitioner (if known); (b) When did your firm cease to act for [accused]? 5. If NO to question 2: (a) Has application been made by your firm or by [names of any other persons] for legal assistance on behalf of [accused]? YES/NO If YES, give the date of such application (if known); (b) If NO to (a), has [accused] been advised by your firm to apply for legal assistance? YES/NO. Director Criminal Trial Listing Directorate * Delete if not applicable __________________ r. 18 -- 99 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 94 Rule 4.11 FORM 6–4E IN THE SUPREME COURT OF VICTORIA AT The Queen v. [name of accused] NOTICE OF ALIBI I, [name and address of accused], give notice of alibi in accordance with section 190 of the Criminal Procedure Act 2009. 1. Particulars as to time and place of alibi: [insert details] 2. Name and last known address of any witness to the alibi: [insert names and addresses of witnesses to alibi] 3. *[If name and last address of any witness to the alibi is not known] the following information might be of material assistance in finding the witness [insert details]. Date: [Signature of accused] * Delete if not applicable __________________ r. 18 -- 100 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 95 Rule 4.13 FORM 6–4F IN THE SUPREME COURT OF VICTORIA AT The Queen v. [name of accused] NOTICE OF INTENTION TO PLEAD GUILTY TO ONE OR MORE REMAINING CHARGES IN INDICTMENT I, [name and address of accused], give notice of my intention to plead guilty to one or more remaining charges in the indictment in accordance with section 216(1)(b) of the Criminal Procedure Act 2009. 1. Details of indictment: [insert details] 2. I have already pleaded guilty to one or more of the charges in the indictment. 3. The remaining charges in the indictment to which I intend to plead guilty are: [specify each of the remaining charges in the indictment to which you intend to plead guilty] Date: [Signature of accused] __________________". r. 18 -- 101 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 96 19 New Order 15 Forms After Form 6–14D of the Principal Rules insert— "Rule 15.01 FORM 6–15A IN THE SUPREME COURT OF VICTORIA AT IN THE MATTER of an application under section 89F of the Sentencing Act 1991 for an identity crime certificate IDENTITY CRIME CERTIFICATE The Supreme Court issues this identity crime certificate under section 89F of the Sentencing Act 1991. On [date] the Court found [name of offender] guilty of an identity crime offence. 1. The identity crime offence to which this certificate relates is [specify identity crime offence and date of the offence]. 2. The name of the victim of the identity crime offence is [name of victim]. *3. The Court considers the following other matters are relevant: [specify any other relevant matters, for example, address of victim, gender, date of birth] Date: [Signature of Judge] * Delete if inapplicable __________________ r. 19 -- 102 of 106 -- Part 2—Amendment of Chapter VI Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 97 Rule 15.02 FORM 6–15B IN THE SUPREME COURT OF VICTORIA AT IN THE MATTER of an application under section 89F of the Sentencing Act 1991 for an identity crime certificate NOTICE TO APPEAR UNDER SECTION 89H OF THE SENTENCING ACT 1991 TO: [name and address of person who prosecuted the identity crime offence which is the subject of the application] TAKE NOTICE THAT you are directed to appear at the hearing of the application to provide assistance to the Court in relation to the application. PARTICULARS: 1. Date of hearing: 2. Place of hearing: [address of Court] 3. The identity crime offence to which this application relates is: [specify identity crime offence] 4. The name of the victim of the identity crime offence is: [name of victim] 5. The Court found [name of offender] guilty of the identity crime offence on [date] *6. Other relevant matters are: [specify any other relevant matters] *7. You may appoint another person to appear on your behalf at the hearing. If you wish to do so, specify the name and contact details of that person. Date: [Signature] * Delete if inapplicable __________________". __________________ r. 19 -- 103 of 106 -- Part 3—Amendment of Chapter I Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 98 PART 3—AMENDMENT OF CHAPTER I 20 Application of Part 3 of Order 58 of Chapter I In Rule 58.06 of the Supreme Court (General Civil Procedure) Rules 2005 2 omit "92 or" (where twice occurring). 21 Order striking out appeal (1) Rule 58.28 of the Supreme Court (General Civil Procedure) Rules 2005 is revoked. (2) Form 58E of the Supreme Court (General Civil Procedure) Rules 2005 is revoked. Dated: 29 October 2009 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. PETER BUCHANAN, J.A. MARCIA NEAVE, J.A. ROBERT REDLICH, J.A. JULIE DODDS-STREETON, J.A. BERNARD D. BONGIORNO, J.A. DAVID BYRNE, J. D. L. HARPER, J. H. R. HANSEN, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. STEPHEN KAYE, J. SIMON P. WHELAN, J. ELIZABETH HOLLINGWORTH, J. KEVIN H. BELL, J. r. 20 -- 104 of 106 -- Part 3—Amendment of Chapter I Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 99 KIM HARGRAVE, J. ANTHONY CAVANOUGH, J. TONY PAGONE, J. PAUL COGHLAN, J. ROSS ROBSON, J. JAMES JUDD, J. PETER VICKERY, J. EMILIOS KYROU, J. DAVID F. R. BEACH, J. JENNIFER DAVIES, J. KARIN EMERTON, J. ═══════════════ r. 21 -- 105 of 106 -- Supreme Court (Criminal Procedure Amendment) Rules 2009 S.R. No. 132/2009 100 ENDNOTES 1 Rule 4: S.R. No. 12/2008 as amended by S.R. Nos 100/2008, 118/2008, 150/2008, 98/2009 and 99/2009. 2 Rule 20: S. R. No. 148/2005. Reprint No. 1 as at 3 September 2007. Reprinted to S.R. No. 91/2007 and subsequently amended by S.R. Nos 128/2007, 32/2008, 100/2008, 149/2008, 151/2008, 30/2009, 44/2009, 60/2009, 97/2009 and 109/2009. Endnotes -- 106 of 106 --