Magistrates' Court (Committals) (Amendment) Rules 2001

i Magistrates' Court (Committals) (Amendment) Rules 2001 S.R. No. 58/2001 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. New Rule 1.05 inserted 1 1.05 Extension and abridgement 2 6. Amendment to Rule 2.01 2 7. Amendment to Rule 2.02 2 8. Amendment to Rule 2.03 2 9. Amendment to Rule 3.01 2 10. Substitution of Order 4 2 ORDER 4 3 FILING HEARINGS AND COMMITTAL MENTION HEARINGS 3 4.01 Charge to be filed with the registrar 3 4.02 Registrar to fix date for filing hearing 3 4.03 Further date for filing hearing. 3 4.04 Orders and directions at filing hearing 3 4.05 Notice of committal mention hearing 4 4.06 Application to Court to fix a longer period for the holding of a committal mention hearing 4 11. Revocation of Rule 5.03 4 12. Substitution of Rules 5.04 and 5.05 5 5.04 Filing of application 5 5.05 Service of application 5 13. Substitution of Rule 6.01 5 6.01 Fixing of a special mention hearing 5 14. Revocation of Rules 6.02 and 6.03 5 15. Substitution of Rule 6.05 5 6.05 Application to be excused from attending special mention hearing 5 16. Substitution of Rule 9.01 6 -- 1 of 22 -- Rule Page ii 9.01 Notice by informant in response to application for leave to cross-examine a witness 6 17. Revocation of Rule 9.02 6 18. Time for objection by informant to production of certain material 6 19. Application for leave to cross-examine a witness after expiry of period for giving notice 6 20. Revocation of Rule 9.05 6 21. Revocation of Order 10 6 22. Substitution of Order 11 7 ORDER 11 7 COMPULSORY EXAMINATION PROCEDURE 7 11.01 Form of application 7 11.02 Form of notice of order 7 11.03 Service of notice of order 7 11.04 Prescribed information 8 23. New Order 11A inserted 8 ORDER 11A 8 EVIDENCE TAKEN AFTER ACCUSED PERSON DIRECTED TO BE TRIED 8 11A.01 Form of notice of application 8 11A.02 Response to notice of application 8 24. New Rules 12.04 and 12.05 inserted 9 12.04 Witnessing of statements 9 12.05 Statements prepared in another jurisdiction 9 25. Amendments to Form 4A 9 26. Amendments to Form 4B 9 27. Substitution of Form 5A 10 28. Revocation of Forms 6A, 6B and 6C 11 29. Amendments to Form 7A 11 30. Amendments to Form 8A 11 31. Substitution of Form 9A 12 32. Revocation of Form 9B 13 33. Amendment to Form 11A 13 34. Substituted Forms 11B and 11C and new Forms 11AA and 11AB inserted 14 35. Amendment to Form 12A 18 ═══════════════ ENDNOTES 20 -- 2 of 22 -- 1 STATUTORY RULES 2001 S.R. No. 58/2001 Magistrates' Court Act 1989 Magistrates' Court (Committals) (Amendment) Rules 2001 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 Principal Rules. 2. Authorising provisions These Rules are made under section 142 of the Magistrates' Court Act 1989 and all other enabling powers. 3. Commencement These Rules come into operation on 1 July 2001. 4. Principal Rules In these Rules, the Magistrates' Court (Committals) Rules 19991 are called the Principal Rules. 5. New Rule 1.05 inserted After Rule 1.04 of the Principal Rules insert— -- 3 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 2 "1.05 Extension and abridgement (1) Except as the Act otherwise provides, the Court may extend or abridge any time fixed by or under these Rules. (2) The Court may extend time under sub-rule (1) before or after the time expires whether or not an application for the extension is made before the time expires.". 6. Amendment to Rule 2.01 In Rule 2.01 of the Principal Rules after "Director of Public Prosecutions" insert "or other person or body authorised at law to prosecute in the committal proceeding". 7. Amendment to Rule 2.02 In Rule 2.02 of the Principal Rules after "Director of Public Prosecutions" insert "or other person or body authorised at law to prosecute in the committal proceeding". 8. Amendment to Rule 2.03 In Rule 2.03 of the Principal Rules after "Director of Public Prosecutions" insert "or other person or body authorised at law to prosecute in the committal proceeding". 9. Amendment to Rule 3.01 In Rule 3.01(c) of the Principal Rules after "Director of Public Prosecutions" insert "or other person or body authorised at law to prosecute in the committal proceeding". 10. Substitution of Order 4 For Order 4 of the Principal Rules substitute— r. 6 -- 4 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 3 "ORDER 4 FILING HEARINGS AND COMMITTAL MENTION HEARINGS 4.01 Charge to be filed with the registrar A charge in a committal proceeding must be filed with the registrar as soon as practicable after the charge is laid. 4.02 Registrar to fix date for filing hearing On the filing of the charge, the registrar must fix a date for a filing hearing in the proceeding and the date must be— (a) if a defendant has been arrested and is either remanded in custody or granted bail in the proceeding—a day which is within 7 days after the filing of the charge; or (b) if a summons to answer to a charge is issued—a day which is within 4 weeks after the issue of the summons. 4.03 Further date for filing hearing. If it appears to the Court at a filing hearing that a summons to which section 34(1)(a)(i) of the Act applies has not been served in accordance with that section, the Court may fix a further date for the filing hearing. 4.04 Orders and directions at filing hearing If the defendant appears personally or is represented by a legal practitioner at a filing hearing, whether or not any requirement of section 34(1) of the Act has been complied with, the Court may— r. 10 -- 5 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 4 (a) subject to clause 4(2) of Schedule 5 to the Act, fix a committal mention date on a day which is within 12 weeks after the commencement of the proceeding or on such other day as the Court deems appropriate; (b) fix a longer or shorter period for the holding of a committal mention hearing in accordance with clause 4(3) of Schedule 5 to the Act; (c) subject to clause 7(1) of Schedule 5 to the Act, fix a time for service of a hand- up brief; (d) give such directions as it considers are necessary, in the interests of justice. 4.05 Notice of committal mention hearing On the conclusion of the filing hearing, the registrar must hand to the defendant a notice in Form 4A. 4.06 Application to Court to fix a longer period for the holding of a committal mention hearing If the Court has fixed a committal mention date, an application under clause 4(3) of Schedule 5 to the Act for the Court to fix a longer period for the holding of a committal mention hearing than that set out in clause 4(2) of the Schedule must be in Form 4B.". 11. Revocation of Rule 5.03 Rule 5.03 of the Principal Rules is revoked. r. 11 -- 6 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 5 12. Substitution of Rules 5.04 and 5.05 For Rules 5.04 and 5.05 of the Principal Rules substitute— "5.04 Filing of application Unless otherwise provided by these Rules, an application is made by filing the application with the registrar. 5.05 Service of application The applicant must serve a copy of an application on every person to whom notice of the application is to be given a reasonable time before the hearing of the application.". 13. Substitution of Rule 6.01 For Rule 6.01 of the Principal Rules substitute— "6.01 Fixing of a special mention hearing (1) A party may apply to the Court for a special mention hearing. (2) An application must set out the purpose of the application for the special mention hearing and must be in Form 5A. (3) The Court may of its own motion conduct a special mention hearing.". 14. Revocation of Rules 6.02 and 6.03 Rules 6.02 and 6.03 of the Principal Rules are revoked. 15. Substitution of Rule 6.05 For Rule 6.05 of the Principal Rules substitute— "6.05 Application to be excused from attending special mention hearing r. 12 -- 7 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 6 (1) An application to the Court under clause 3(4) of Schedule 5 to the Act must be made before the special mention date. (2) The application may be made orally or in writing. (3) An application made orally must be determined by the Court.". 16. Substitution of Rule 9.01 For Rule 9.01 of the Principal Rules substitute— "9.01 Notice by informant in response to application for leave to cross-examine a witness For the purposes of clause 12(2A) of Schedule 5 to the Act, notice in writing to the defendant and the registrar must be in Form 9A.". 17. Revocation of Rule 9.02 Rule 9.02 of the Principal Rules is revoked. 18. Time for objection by informant to production of certain material At the end of Rule 9.03 insert— "(2) An objection must be made no later than 7 days before the committal mention date.". 19. Application for leave to cross-examine a witness after expiry of period for giving notice In Rule 9.04 of the Principal Rules for "in Form 9B" substitute "in Form 5A". 20. Revocation of Rule 9.05 Rule 9.05 of the Principal Rules is revoked. 21. Revocation of Order 10 Order 10 of the Principal Rules is revoked. r. 16 -- 8 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 7 22. Substitution of Order 11 For Order 11 to the Principal Rules substitute— "ORDER 11 COMPULSORY EXAMINATION PROCEDURE 11.01 Form of application An application under section 56A(1) of the Act for a person to attend before the Court for the purpose of being examined by or on behalf of the informant or producing a document or thing or both must be in Form 11A. 11.02 Form of notice of order For the purposes of section 56A(3) of the Act, notice of an order requiring a person to attend before the Court under section 56A(1) of the Act is in the prescribed form if— (a) it is in Form 11B if it is to be served on the defendant; or (b) it is in Form 11C if it is to be served on the person to whom the order relates. 11.03 Service of notice of order For the purposes of section 56A(3) of the Act, notice of an order made under section 56A(1) of the Act must be— (a) served in accordance with Rule 3.01(a), if it is to be served on the defendant; or (b) served personally, if it is to be served on the person to whom the order relates— unless the Court otherwise orders. r. 21 -- 9 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 8 11.04 Prescribed information For the purposes of section 56A(1B)(e) of the Act, the following other information is prescribed— (a) whether the defendant has been made aware of the application; (b) the issues that are proposed to be raised with the person sought to be examined; (c) any documents or things the person is to produce.". 23. New Order 11A inserted After Rule 11.04 of the Principal Rules insert— "ORDER 11A EVIDENCE TAKEN AFTER ACCUSED PERSON DIRECTED TO BE TRIED 11A.01 Form of notice of application Notice of an application for an order that the evidence of a person be taken at a time and place fixed by the Court under clause 24A of Schedule 5 to the Act must be in Form 11AA. 11A.02 Response to notice of application A party who receives a notice referred to in Rule 11A.01 must, no later than 7 days before the hearing of the application or such lesser period before then as is agreed to by the other party, give notice in Form 11AB to the other party and the registrar stating— (a) whether the party consents to or opposes an order for the evidence of a witness being taken; and r. 23 -- 10 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 9 (b) if the party opposes the order, the reasons for the opposition.". 24. New Rules 12.04 and 12.05 inserted After Rule 12.03 of the Principal Rules insert— "12.04 Witnessing of statements For the purposes of clause 8(1)(b)(vii) of Schedule 5 to the Principal Act the following persons or class of persons are prescribed— an officer at Australian Public Service level 5 or higher who is an investigator in the Department of Immigration and Multicultural Affairs of the Commonwealth. 12.05 Statements prepared in another jurisdiction For the purposes of clause 8(1)(c) of Schedule 5 to the Act, a statement made in another jurisdiction of Australia is in the prescribed form and is attested to in the prescribed manner if it has been made and attested to in accordance with the law for making and attesting statements in committal proceedings in that other jurisdiction.". 25. Amendments to Form 4A In Form 4A to the Principal Rules— (a) for "Rule 4.02" substitute "Rule 4.05"; (b) omit "you are able to show exceptional circumstances and that"; (c) after "want to" insert "apply to". 26. Amendments to Form 4B In Form 4B to the Principal Rules— (a) for "Rule 4.04" substitute "Rule 4.06"; (b) for "[or shorter] period for the holding of a committal mention hearing" substitute r. 24 -- 11 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 10 "period for the holding of a committal mention hearing than that set out in clause 4(2) of Schedule 5 to the Act.". 27. Substitution of Form 5A For Form 5A to the Principal Rules substitute— "FORM 5A Rules 5.02, 6.01 and 9.04 [heading as in Form 2A] APPLICATION TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies— *1. for an order that a special mention hearing takes place [set out purpose of special mention hearing, as required by Rule 6.01]. *2. for leave to cross-examine [insert name of witness], after the expiry of the period for giving notice of cross- examination under clause 12(1) of Schedule 5 to the Magistrates' Court Act 1989. *3. for the following orders— [set out details of order(s) sought. Also set out the grounds for the application] The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] r. 26 -- 12 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 11 This application was filed by: *delete if inapplicable". 28. Revocation of Forms 6A, 6B and 6C Forms 6A, 6B and 6C to the Principal Rules are revoked. 29. Amendments to Form 7A In Form 7A to the Principal Rules— (a) for "admissible statement(s)" substitute "statements that are capable of being admitted in evidence"; (b) for "admissible statement" substitute "statement that is capable of being admitted in evidence"; (c) for "admissible documents" substitute "documents that are capable of being admitted in evidence". 30. Amendments to Form 8A In Form 8A to the Principal Rules— (a) after "Public Prosecutions" insert "or the person or body authorised at law to prosecute in the committal proceeding"; (b) for— "*1. intends to seek leave to cross-examine [name of person(s)] at the committal proceeding [identify scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue]." substitute— r. 28 -- 13 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 12 "*1. intends to seek leave to cross-examine [name of person(s)] at the committal proceeding. An issue to which the proposed questioning relates and a reason as to why the evidence is relevant to the issue are set out as follows— [insert details]"; (c) at the end of the Form, omit the words and expressions commencing with "NOTE" and ending "full age or capacity".". 31. Substitution of Form 9A For Form 9A to the Principal Rules substitute— "FORM 9A Rules 9.01 and 9.03 [heading as in Form 2A] NOTICE BY INFORMANT *OF CONSENT TO AN APPLICATION BY THE DEFENDANT TO CROSS-EXAMINE A WITNESS *OF OPPOSITION TO AN APPLICATION BY THE DEFENDANT TO CROSS-EXAMINE A WITNESS *OF OBJECTION TO THE PRODUCTION OF AN ITEM LISTED IN HAND-UP BRIEF TO: the defendant AND TO: the registrar (clauses 12(2A) and 12(4)(a) of Schedule 5 to the Magistrates' Court Act 1989) *1. TAKE NOTICE that the informant consents to leave being granted to the defendant to cross-examine the person[s] named in the Notice of the Defendant dated [insert date of notice] in Response to Hand-Up Brief. r. 31 -- 14 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 13 [or] *1(a) TAKE NOTICE that the informant opposes leave being granted to the defendant to cross-examine the following person[s] [list persons] named in the Notice of the Defendant dated [insert date of notice] in Response to Hand-Up Brief (b) THE REASONS for the informant opposing leave being granted to cross-examine the persons listed in paragraph (a) are— [set out reasons] [or] *2(a) 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]. (b) 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". 32. Revocation of Form 9B Form 9B to the Principal Rules is revoked. 33. Amendment to Form 11A In Form 11A to the Principal Rule, for "Rule 11.02" substitute "Rule 11.01". r. 31 -- 15 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 14 34. Substituted Forms 11B and 11C and new Forms 11AA and 11AB inserted For Form 11B to the Principal Rules substitute— "FORM 11B Rule 11.02(a) [heading as in Form 2A] NOTICE OF ORDER (to be served on the defendant) TO: [name of defendant] An order requiring that [name of person to whom order relates] attend before the Court in this committal proceeding has been made by the Court on the application of the informant under section 56A(1) of the Magistrates' Court Act 1989. THE COURT HAS ORDERED that [name of person to whom order relates] attend before the Court for the purpose of— *being examined by or on behalf of the informant; *producing a document or thing, namely— [describe the document or thing]; *being examined by or on behalf of the informant and producing a document or thing or both [describe the document or thing]; (a) at [venue of Court] Magistrates' Court; (b) at 10.00 a.m. [or as the case requires] on [date] and until [name of person to whom order relates] is excused from further attending. Dated— Signature of informant— NOTES TO THE DEFENDANT -- 16 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 15 (1) Any question concerning this Notice should be addressed not to the Court but to the informant. (2) Section 56A(3) of the Magistrates' Court Act 1989 provides that notice of an order under section 56A(1) of the Act must be served on you in accordance with the Rules. (3) You may attend Court on the above date and you may be legally represented. (4) You may not cross-examine a witness attending the Court under an order made under section 56A(1) of the Act. (5) If you attend Court and, if the Court determines there are exceptional circumstances, you may address the Court on the proceeding personally or through a legal practitioner representing you. (6) You may wish to seek legal advice in which case you should contact your legal representative or Victoria Legal Aid immediately. *delete if inapplicable _______________ FORM 11C Rule 11.02(b) [heading as in Form 2A] NOTICE OF ORDER (to be served on person to whom order relates) TO: [name of person to whom order relates] An order requiring that [name of person to whom order relates] attend before the Court in this committal proceeding has been made by the Court on the application of the informant under section 56A(1) of the Magistrates' Court Act 1989. THE COURT HAS ORDERED that [name of person to whom order relates] attend before the Court for the purpose of— *being examined by or on behalf of the informant; r. 34 -- 17 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 16 *producing a document or thing, namely— [describe the document or thing]; *being examined by or on behalf of the informant and producing a document or thing or both [describe the document or thing]; (a) at [venue of Court] Magistrates' Court; (b) at 10.00 a.m. [or as the case requires] on [date] and until [name of person to whom order relates] is excused from further attending. Dated— Signature of informant— NOTES TO PERSON TO WHOM ORDER RELATES (1) If you do not comply with the order you may be arrested. (2) Any question concerning this Notice should be addressed not to the Court but to the informant. (3) You have the right to be legally represented at the proposed examination. (4) You may wish to seek legal advice in which case you should contact your legal representative or Victoria Legal Aid immediately. *delete if inapplicable _______________ FORM 11AA Rule 11A.01 [heading as in Form 2A] NOTICE OF APPLICATION FOR ORDER THAT THE EVIDENCE OF A PERSON BE TAKEN (clause 24A of Schedule 5 to the Magistrates' Court Act 1989) r. 34 -- 18 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 17 TO: *the Director of Public Prosecutions/*the defendant AND TO: the registrar THE *defendant/*Director of Public Prosecutions— will apply to the Court for an order that the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court. An issue to which the proposed questioning relates and a reason as to why the evidence is relevant to the issue are set out as follows— [insert details] The defendant has been committed for trial at [name of court] at [place] on [trial date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Dated— Signature— *of defendant/*defendant's legal practitioner *for or on behalf of the Director of Public Prosecutions Dated: [registrar] This Notice of application was filed by: [insert name]. *delete if inapplicable. _______________ FORM 11AB Rule 11A.02 [heading as in Form 2A] RESPONSE TO NOTICE OF APPLICATION FOR ORDER THAT THE EVIDENCE OF A PERSON BE TAKEN r. 34 -- 19 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 18 (clause 24A of Schedule 5 to the Magistrates' Court Act 1989) TO: *the Director of Public Prosecutions/*the defendant AND TO: the registrar THE *defendant/*Director of Public Prosecutions— *CONSENTS to an order that the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court. or *OPPOSES an order for the evidence of [name of person(s)] be taken at a time and place to be fixed by the Court for the following reasons— [set out reasons] [signature] Signature *for or on behalf of the Director of Public Prosecutions/ *of defendant or defendant's legal practitioner: Dated: [registrar] This Response to Notice of application was filed by: [insert name]. *delete if inapplicable". 35. Amendment to Form 12A In Form 12A to the Principal Rules for "the sentencing judge may reduce your sentence" substitute "today or at any time before or during your trial, the sentencing judge may take into account whether you pleaded guilty and the stage in the proceedings at which you pleaded guilty or indicated an intention to plead guilty". r. 34 -- 20 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 19 Dated: 20 June 2001 IAN LESLIE GRAY, Chief Magistrate DANIEL JOHN MULING, Deputy Chief Magistrate JELENA POPOVIC, Deputy Chief Magistrate ═══════════════ -- 21 of 22 -- S.R. No. 58/2001 Magistrates' Court (Committals) (Amendment) Rules 2001 20 ENDNOTES 1 Rule 4: S.R. No. 97/1999 as amended by S.R. No. 150/1999. Endnotes -- 22 of 22 --