Magistrates' Court (Committals) (Amendment) Rules 2007

Magistrates' Court (Committals) (Amendment) Rules 2007 S.R. No. 56/2007 TABLE OF PROVISIONS Rule Page 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 1 5 Amendment to authorising provision 1 6 Time limit for filing and service of Notice of Appearance 2 7 Substitution of Rule 2.02 2 2.02 Prosecution to provide relevant contact details 2 8 New Rule 7.00 inserted 3 7.00 Notice specifying committal mention date, nature of a committal proceeding etc. 3 9 Amendment to Rule 8.01 3 10 Substitution of heading to Order 9 3 11 Revocation of Rule 9.01 3 12 Amendment to Rule 9.03 3 13 Revocation of Rule 9.04 4 14 New Order 10 inserted 4 ORDER 10 4 CASE DIRECTION NOTICE 4 10.01 Prescribed form 4 15 Amendments to Rule 11.04 4 16 Amendment to heading to Order 11A 4 17 Amendment to Form 2A 5 18 Substitution of Form 4A 5 Form 4A—Notice of Committal Proceedings 5 19 Insertion of Form 7 7 Form 7—Hand-up Brief of Evidence and Notice of Committal Mention Date 7 20 Amendment to Form 7A 10 i -- 1 of 18 -- Rule Page 21 Substitution of Forms 8A and 9A and insertion of Form 10A 10 Form 8A—Notice of Defendant in Response to Hand-up Brief 10 Form 9A—Notice by Informant of Objection to the Production of on Item Listed in Hand-up Brief 12 Form 10A—Case Direction Notice 13 ═══════════════ ENDNOTES 16 ii -- 2 of 18 -- STATUTORY RULES 2007 S.R. No. 56/2007 Magistrates' Court Act 1989 Magistrates' Court (Committals) (Amendment) Rules 2007 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: 1 Object The object of these Rules is to make miscellaneous amendments to the Magistrates' Court (Committals) Rules 1999 consequent to the enactment of the Courts Legislation (Jurisdiction) Act 2006. 2 Authorising provisions These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers. 3 Commencement These Rules come into operation on 1 July 2007. 4 Principal Rules In these Rules, the Magistrates' Court (Committals) Rules 19991 are called the Principal Rules. 5 Amendment to authorising provision In Rule 1.02 of the Principal Rules for "section" substitute "sections 16 and". 1 -- 3 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 6 6 Time limit for filing and service of Notice of Appearance At the end of Rule 2.01 of the Principal Rules insert— "(2) The filing and service of a Notice of Appearance required by subrule (1) must take place no later than 21 days before the first committal mention date.". 7 Substitution of Rule 2.02 For Rule 2.02 of the Principal Rules substitute— "2.02 Prosecution to provide relevant contact details (1) Within 5 days after receipt of a Notice of Appearance, the Director of Public Prosecutions or the other person or body authorised at law to prosecute in the committal proceeding must advise the legal practitioner of the following relevant contact details— (a) the name of the prosecutor handling the matter; and (b) either a fax number or an electronic mail address (or both) for the service of documents on the Director of Public Prosecutions or the other person or body authorised at law to prosecute in the committal proceeding; and (c) either a fax number or an electronic mail address (or both) for the service of documents on the informant. (2) If 20 days before the committal mention date the Director of Public Prosecutions or other person or body authorised at law to prosecute in the committal proceeding has not received a Notice of Appearance, the Director of 2 -- 4 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 8 Public Prosecutions or the other person or body must advise the Court of the relevant contact details.". 8 New Rule 7.00 inserted After the Heading to Order 7 of the Principal Rules insert— "7.00 Notice specifying committal mention date, nature of a committal proceeding etc. Notice under clause 6(1)(a) of Schedule 5 to the Act is in the prescribed form if it is in the form of Form 7.". 9 Amendment to Rule 8.01 In Rule 8.01 of the Principal Rules, paragraph (a) is revoked. 10 Substitution of heading to Order 9 For the Heading to Order 9 of the Principal Rules substitute "OBJECTION BY INFORMANT TO DEFENCE NOTICE". 11 Revocation of Rule 9.01 Rule 9.01 of the Principal Rules is revoked. 12 Amendment to Rule 9.03 (1) For 9.03(1) of the Principal Rules substitute— "(1) An objection by the informant under clause 12(4)(a) of Schedule 5 to the Act to the production by the informant of any item in the hand-up brief that the defendant has requested under clause 12(1)(b) of Schedule 5 to the Act, unless the objection is made in a case direction notice, must be made in Form 9A.". 3 -- 5 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 13 (2) In Rule 9.03(2) of the Principal Rules— (a) after "objection" insert "under subrule (1)"; and (b) for "7" substitute "3". 13 Revocation of Rule 9.04 Rule 9.04 of the Principal Rules is revoked. 14 New Order 10 inserted After Order 9 to the Principal Rules insert— "ORDER 10 CASE DIRECTION NOTICE 10.01 Prescribed form A case direction notice is in the prescribed form if it is in Form 10A.". 15 Amendments to Rule 11.04 (1) In Rule 11.04 of the Principal Rules, in paragraph (c), for "produce." substitute "produce;". (2) In Rule 11.04 of the Principal Rules, after paragraph (c) insert— "(d) if there has been a committal mention hearing; (e) if there has been a committal mention hearing, why it would be in the interests of justice to allow the application.". 16 Amendment to heading to Order 11A In the heading to Order 11A of the Principal Rules for "ACCUSED PERSON" substitute "DEFENDANT". 4 -- 6 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 17 17 Amendment to Form 2A In Form 2A to the Principal Rules after— "*is willing to accept service of documents on behalf of the defendant" insert— "*is willing to accept service of documents, other than an additional charge (or additional charges), on behalf of the defendant". 18 Substitution of Form 4A For Form 4A to the Principal Rules substitute— "FORM 4A Rule 4.05 [heading as in Form 2A] NOTICE OF COMMITTAL PROCEEDINGS TO: [defendant(s)] of [address(es)] Informant's contact details: [insert contact details] This is an important document. Do not ignore it. If you do not have a lawyer, you should contact a solicitor, Victoria Legal Aid or a registrar of the Magistrates' Court as soon as possible. [Telephone number for Law Institute of Victoria Referral Service—] [Address and telephone number for Victoria Legal Aid—] [Address and telephone number of registrar of Magistrates' Court] If you come to the committal mention hearing without a lawyer the court will not delay the hearing to enable you to get a lawyer unless you have already made reasonable efforts to get a lawyer. 5 -- 7 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 18 COMMITTAL MENTION DATE You have been charged with *a criminal offence/*criminal offences. There will be a committal mention hearing in relation to the charge or charges at the Magistrates' Court at [venue] on [date] at [time]. You must attend court on that date. WHAT IS A COMMITTAL PROCEEDING? A committal proceeding is a proceeding in the Magistrates' Court. That court will examine the evidence relating to the charge or charges against you to decide whether there is sufficient evidence to send you for trial in the County Court or the Supreme Court. WHAT WILL HAPPEN BETWEEN NOW AND THE COMMITTAL MENTION DATE? At least 6 weeks before the committal mention hearing, the person who charged you (the informant) will provide you (or your lawyer, if you have a lawyer) with a hand-up brief. The hand-up brief will set out the evidence relating to the charge or charges against you. This will include statements made by witnesses. You or your lawyer will be notified of the prosecutor's contact details. You or your lawyer must discuss the case with the prosecutor before the committal mention hearing. Depending on the nature of the case and of the witnesses, you may be able to ask the court's permission for you or your lawyer to cross examine some or all of the witnesses about their statements. You will receive further information about the process when you receive the hand-up brief of evidence. Date: registrar *delete if not applicable __________________". 6 -- 8 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 19 19 Insertion of Form 7 After Form 5A to the Principal Rules insert— "FORM 7 Rule 7.00 [heading as in Form 2A] HAND-UP BRIEF OF EVIDENCE AND NOTICE OF COMMITTAL MENTION DATE (clause 6(1)(a) of Schedule 5 to the Magistrates' Court Act 1989) TO: [defendant(s)] of [address(es)] Informant's contact details—[insert name and contact details] This is an important document. Do not ignore it. If you do not have a lawyer, you should contact a solicitor, Victoria Legal Aid or a registrar of the Magistrates' Court as soon as possible. [Telephone number for Law Institute of Victoria Referral Service—insert details] [Address and telephone number for Victoria Legal Aid— insert details] [Address and telephone number of registrar of Magistrates' Court—insert details] If you come to the committal mention hearing without a lawyer the court will not delay the hearing to enable you to get a lawyer unless you have already made reasonable efforts to get a lawyer. COMMITTAL MENTION DATE You have been charged with *a criminal offence/*criminal offences. A copy of the charge sheet is attached to this notice. 7 -- 9 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 19 There will be a committal mention hearing in relation to *the charge/*those charges at the Magistrates' Court at [venue] on [date] at [time]. You must attend court on that date. WHAT IS A COMMITTAL PROCEEDING? A committal proceeding is a proceeding in the Magistrates' Court. That court will examine the evidence relating to the charge or charges against you to decide whether there is sufficient evidence to send you for trial in the County Court or the Supreme Court. The evidence will include the documents and other things that are contained in the hand-up brief of evidence which is attached to this notice. Depending on the nature of the case and of the witnesses, you may be able to ask the court's permission for you or your lawyer to cross examine some or all of the witnesses about their statements. DISCUSSION OF ISSUES WITH THE PROSECUTOR At least 7 days before the committal mention date you or your lawyer must discuss your case with the prosecutor. (If you or your lawyer have not already been notified of the prosecutor's contact details, you or your lawyer should be notified of those details no later than 16 days before the committal mention date.) The purpose of the discussion is to find out matters including— (a) whether you propose to plead guilty or not guilty, or to reserve your plea; (b) whether you will be arguing that there is insufficient evidence for the case to go to trial before a jury; (c) whether you will be asking to cross-examine any of the witnesses whose statements are contained in the hand-up brief of evidence, and whether the prosecutor opposes that cross-examination; (d) whether you will be calling any of your own witnesses to give evidence; 8 -- 10 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 19 (e) whether you want to inspect any things that are listed in the hand-up brief of evidence, and whether the informant objects to that inspection; (f) if a charge is to be heard and determined summarily, whether you will be applying to the court to have the charge tried by a Magistrate in the Magistrates' Court rather than by a judge and jury in the County Court or Supreme Court. THE COMMITTAL MENTION HEARING A committal mention hearing is one of the stages of a committal proceeding. At a committal mention hearing the court may— (a) determine any application for a charge to be tried summarily; (b) determine certain procedural matters, and may adjourn the proceeding or may fix another committal mention date; (c) immediately hear and determine the committal proceeding (in other words, it may examine all of the evidence and decide whether or not you should be tried by a judge and jury in the County Court or Supreme Court). –––––––––––––––––––––––––––––––––––––––––––––––– AFFIDAVIT/DECLARATION OF SERVICE I [full name] of [address] a member of the police force in the State of Victoria *make oath and say/*declare that I served on the defendant a hand- up brief containing this notice and the enclosures referred to in this notice by delivering a true copy to the defendant personally at [address] on [day of week] the day of 20 at *a.m./*p.m. *I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury. *Sworn/Declared at [place] in the State of Victoria on [date] 9 -- 11 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 20 Before [Name and address in legible writing, typing or stamp below signature] *a person authorised under section 107A(1) of the Evidence Act 1958 to witness the signing of a statutory declaration. *a person authorised under section 123C(1) of the Evidence Act 1958 to take an affidavit. __________________". 20 Amendment to Form 7A In Form 7A to the Principal Rules, in clause 5 after— "*photos or photocopies where it is impractical to produce extra sets" insert— "*video files or video recordings *audio files or audio recordings". 21 Substitution of Forms 8A and 9A and insertion of Form 10A For Forms 8A and 9A to the Principal Rules substitute— "FORM 8A Rule 8.01 [heading as in Form 2A] NOTICE OF DEFENDANT IN RESPONSE TO HAND-UP BRIEF (clause 12(1) of Schedule 5 to the Magistrates' Court Act 1989) TO: the informant AND TO: the Director of Public Prosecutions or the person or body authorised at law to prosecute in the committal proceeding 10 -- 12 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 21 AND TO: the registrar TAKE NOTICE that the defendant— *1. requires the following specified items as listed in the hand-up brief in accordance with clause 6(1)(j), (k) or (l) of Schedule 5 to the Magistrates' Court Act 1989— [specify statements or documents] to be produced for inspection or a copy given to the defendant on or before [insert committal mention date]. *2. is prepared to proceed, or proceed further, with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand up brief in accordance with clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989 remains uncompleted. OR *2. is not prepared to proceed, or proceed further, with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand up brief in accordance with clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989 remains uncompleted. [here set out the forensic procedure, examination or test that remains uncompleted]. Dated: [Signed by the defendant or the defendant's legal practitioner] *delete if not applicable __________________ 11 -- 13 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 21 FORM 9A Rule 9.03 [heading as in Form 2A] NOTICE BY INFORMANT OF OBJECTION TO THE PRODUCTION OF ON ITEM LISTED IN HAND-UP BRIEF (clause 12(4)(a) of Schedule 5 to the Magistrates' Court Act 1989) TO: the defendant AND TO: the registrar TAKE NOTICE that the informant objects to the production of the following item(s) listed in the hand-up brief required by the defendant to be produced— [list items]. THE REASONS for the informant objecting to production of the item(s) are— [set out reasons] Dated— Signature— *of Informant *for or on behalf of the Director of Public Prosecutions *for or on behalf of [other person or body authorised at law to prosecute in the committal proceeding] *delete if not applicable __________________ 12 -- 14 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 21 FORM 10A Rule 10.01 [heading as in Form 2A] CASE DIRECTION NOTICE (clause 11AA of Schedule 5 to the Magistrates' Court Act 1989) TO: the registrar *TAKE NOTICE that— † the *defendant/*defendant's legal practitioner has read the brief of evidence; † the Director of Public Prosecutions has read the brief of evidence; † the defence and the Director of Public Prosecutions have discussed whether this matter can be resolved by *a plea/*pleas of guilty and, if so, on what charge(s). In light of those discussions, the defendant and the Director of Public Prosecutions propose that this committal proceeding be dealt with as follows— *TAKE NOTICE that no legal practitioner has served a notice of appearance on the Director of Public Prosecutions in this matter, the Director of Public Prosecutions is not aware of any legal practitioner representing the defendant and the defendant has not participated in any discussion or other activity in connection with the preparation of this notice. *1. The court should determine the committal proceeding at the committal mention hearing. At the committal mention hearing, will the defendant submit that the defendant should not be committed for trial? *Yes/*No If committed for trial, how does the defendant intend to plead? *Guilty/*Not guilty/*Reserved/*Not applicable (charge to be withdrawn) 13 -- 15 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 21 [if there is more than one charge, and the answers to these questions are not the same for all charges, list the charges separately or in groups and provide answers in relation to each charge or group of charges] *Basis of indication of intention to plead [If the defendant indicates an intention to plead on a particular basis or bases, briefly indicate that basis or those bases. For example— The indication is made without prejudice in the course of negotiations to settle the matter. The indication is made on the basis that the informant will withdraw particular charges.] *2. The parties seek a committal case conference. The issues identified by the parties to be addressed at the committal case conference are—[insert brief description of issues] *3. The defendant will apply for a summary hearing of the following charge(s). Charge Proposed plea [list each charge for which there will be an application for a summary hearing] *Guilty *Not guilty *4. The defendant will apply for leave to cross-examine the following witness or witnesses. Name of witness: Does the informant oppose leave being granted? *Yes/*No [if Yes, include the following matters—] Issue, relevance and justification [indicate the issue or issues identified by the defendant to which the proposed questioning relates, why the defendant considers that evidence of the witness is relevant to that issue or those issues and why the defendant considers that cross examination on that issue or those issues is justified] 14 -- 16 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 r. 21 Opposition—[indicate why the informant opposes leave being granted] *5. The defendant seeks the production of an item or items listed in the hand-up brief and the informant objects to the production of the item or items— Item—[describe the item(s)] Ground for objection [indicate the informant's ground for objecting to producing the item] *6. The defendant and the Director of Public Prosecutions seek an adjournment of the committal proceeding. Reason(s) for adjournment—[indicate the reason(s) for the proposed adjournment] Dated— Signature of *defendant/*defendant's legal practitioner— Dated— Signature (for or on behalf of the Director of Public Prosecutions)— *delete if not applicable __________________". Dated: 25 June 2007 IAN L. GRAY, Chief Magistrate PAUL SMITH, Deputy Chief Magistrate DANIEL J. MULING, Deputy Chief Magistrate ═══════════════ 15 -- 17 of 18 -- S.R. No. 56/2007 Magistrates' Court (Committals) (Amendment) Rules 2007 Endnotes ENDNOTES 1 Rule 4: S.R. No. 97/1999 as amended by S.R. Nos 150/1999 and 58/2001. 16 -- 18 of 18 --