Magistrates' Court (Committals) Rules 1999

i Magistrates' Court (Committals) Rules 1999 S.R. No. 97/1999 TABLE OF PROVISIONS Rule Page ORDER 1 1 PRELIMINARY 1 1.01 Object 1 1.02 Authorising provisions 1 1.03 Application of Rules 1 1.04 Definition 1 ORDER 2 2 APPEARANCE 2 2.01 Notice of appearance 2 2.02 Prosecution to provide facsimile number/address for receipt of documents electronically 2 2.03 Legal practitioner ceasing to act 2 ORDER 3 3 SERVICE 3 3.01 Mode of service 3 3.02 Copy of document served by electronic transmission to be provided upon request 3 ORDER 4 4 DATE FOR COMMITTAL MENTION 4 4.01 Registrar to fix committal mention date 4 4.02 Filing hearing 4 4.03 Change to committal mention hearing date 4 4.04 Application for longer or shorter period for the holding of a committal mention hearing 5 ORDER 5 5 -- 1 of 36 -- Rule Page ii APPLICATIONS 5 5.01 Application of Order 5 5.02 Form of application 5 5.03 Affidavit or statement in support 5 5.04 Filing of application and affidavit in support 6 5.05 Service of application and affidavit or statement in support 6 ORDER 6 6 SPECIAL MENTION HEARING 6 6.01 Special mention hearing before committal mention date 6 6.02 Special mention hearing after committal mention hearing 7 6.03 Special mention hearing after committal mention date 7 6.04 Parties may request registrar to cancel a special mention hearing 7 6.05 Application to be excused from attending special mention hearing 8 ORDER 7 8 HAND-UP BRIEFS 8 7.01 Material to be included in a hand-up brief 8 ORDER 8 8 DEFENCE NOTICE 8 8.01 Defence notice in response to hand-up brief 8 ORDER 9 9 CROSS-EXAMINATION 9 9.01 Notice for leave to cross-examine a witness 9 9.02 Criteria to be taken into account in considering application 9 9.03 Objection by informant to production of certain material 10 9.04 Application for leave to cross-examine a witness after expiry of period for giving notice 10 9.05 If no notice of intention to seek leave to cross- examine witnesses 10 ORDER 10 11 COMMITTAL MENTION 11 10.01 Expectations 11 ORDER 11 12 COMPULSORY PROCEDURE 12 -- 2 of 36 -- Rule Page iii 11.01 Applications under section 56A(1) of the Act to be given priority 12 11.02 Form of application 12 11.03 Form of Order 12 11.04 Service of order 13 11.05 Copy of transcript to be provided to the defendant 13 ORDER 12 13 MISCELLANEOUS 13 12.01 Caution 13 12.02 Caution to be given to person charged 13 12.03 Alibi caution 13 __________________ FORMS 14 Form 2A—Appearance 14 Form 4A—Notice of committal mention hearing and important information about committal proceedings 15 Form 4B—Application for the fixing of a longer or shorter period for the holding of a committal mention hearing 17 Form 5A—Application 18 Form 6A—Application for a special mention hearing 19 Form 6B—Application for a special mention hearing (after a committal mention hearing has been held) 20 Form 6C—Application to be excused from attending a special mention hearing 21 Form 7A—List of material included in hand-up brief 22 Form 8A—Notice of defendant in response to hand-up brief 24 Form 9A—Notice of objection by informant to the production of an item listed in hand-up brief 26 Form 9B—Application for leave to cross-examine witness after expiry of period for giving notice 27 Form 11A—Application for compulsory examination 28 Form 11B—Order requiring attendance 29 Form 12A—Caution 30 Form 12B—Caution to be given to person charged 30 Form 12C—Alibi caution 31 -- 3 of 36 -- Rule Page iv ═══════════════ NOTES 32 -- 4 of 36 -- 1 STATUTORY RULES 1999 S.R. No. 97/1999 Magistrates' Court Act 1989 Magistrates' Court (Committals) Rules 1999 The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules: ORDER 1 PRELIMINARY 1.01 Object The object of these Rules is to provide certain procedures and forms for committal proceedings in the Court. 1.02 Authorising provisions These Rules are made under section 142 of the Magistrates' Court Act 1989 and all other enabling powers. 1.03 Application of Rules These Rules apply to charges heard after the commencement of these Rules where the charges were filed in the Court on or after 1 July 1999. 1.04 Definition In these Rules— "the Act" means the Magistrates' Court Act 1989. -- 5 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 2 ORDER 2 APPEARANCE 2.01 Notice of appearance A legal practitioner who— (a) intends to appear for a defendant; or (b) represents a defendant; or (c) is willing to accept service of documents on behalf of a defendant— in a committal proceeding must file in the Court and serve on the informant and the Director of Public Prosecutions a Notice of Appearance in Form 2A. 2.02 Prosecution to provide facsimile number/address for receipt of documents electronically Upon receipt of a notice in Form 2A, the Director of Public Prosecutions must advise the legal practitioner of— (a) the name of the person handling the matter; and (b) either a facsimile number or an electronic mail address (or both) for the service of documents. 2.03 Legal practitioner ceasing to act If a legal practitioner ceases to act for a party in a committal proceeding, the legal practitioner must as soon as possible file notice in the Court that he or she has ceased to act and serve a copy on the informant and the Director of Public Prosecutions. r. 2.01 -- 6 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 3 ORDER 3 SERVICE 3.01 Mode of service In a committal proceeding, service of a document by a party may be effected— (a) on a defendant, by facsimile transmission or electronic transmission by sending the document to the facsimile number or electronic mail address of the defendant's legal practitioner as advised in Form 2A; (b) on the informant, by facsimile transmission or electronic transmission by sending the document to a facsimile number or electronic mail address supplied by the informant; (c) on the Director of Public Prosecutions, by sending the document to the facsimile number or electronic mail address as advised under Rule 2.02. 3.02 Copy of document served by electronic transmission to be provided upon request The original document, a copy of which was served by facsimile transmission or electronic transmission, must be retained by the party serving the document and must be provided to the Court if the Court so requests. r. 3.01 -- 7 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 4 ORDER 4 DATE FOR COMMITTAL MENTION 4.01 Registrar to fix committal mention date (1) Unless the Court otherwise directs, the registrar must fix a committal mention date on the filing of a charge. (2) Subject to clause 4(2) of Schedule 5 to the Act, the committal mention date must be— (a) if a summons to answer to the charge is issued—a day which is within 8 weeks after issue of the summons; or (b) if a defendant has been arrested and is either remanded in custody for trial or granted bail in the proceeding—a day which is within 10 weeks after the person has been remanded in custody or granted bail (whichever is sooner). 4.02 Filing hearing (1) A charge in a committal proceeding must be filed with the registrar as soon as practicable after the charge is laid. (2) It is the Court's expectation that persons charged with indictable offences, if granted bail, will be bailed to appear before the Court at a filing hearing on the date on which the charge will be filed with the registrar. (3) On the filing of the charge the registrar must hand to the defendant a notice in Form 4A. 4.03 Change to committal mention hearing date The Court must not change the committal mention date unless it is satisfied there are special circumstances. r. 4.01 -- 8 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 5 4.04 Application for longer or shorter period for the holding of a committal mention hearing An application under clause 4(3) of Schedule 5 to the Act for the fixing of a longer or shorter period for the holding of a committal mention hearing must be in Form 4B. ORDER 5 APPLICATIONS 5.01 Application of Order Unless the Court otherwise directs, this Order applies to applications in a committal proceeding. 5.02 Form of application Unless otherwise provided by these Rules, an application in a committal proceeding must be in Form 5A. 5.03 Affidavit or statement in support (1) An application under these Rules must be supported by— (a) an affidavit; or (b) if the application is made by or on behalf of an informant, a statement. (2) A statement must be signed by the person making the statement and contain an acknowledgment signed by that person in the presence of— (a) a member of the police force of Victoria or of any other State or of the Northern Territory of Australia; or (b) a member of the Australian Federal Police; or r. 4.04 -- 9 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 6 (c) an Administrative Service Officer, Class 5 or higher in the Australian Customs Service— that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. 5.04 Filing of application and affidavit in support (1) An application is made by filing the application with the registrar. (2) Any affidavit or statement in support of an application must be filed with the registrar. 5.05 Service of application and affidavit or statement in support The applicant must serve— (a) a copy of an application; and (b) a copy of any affidavit or statement in support— on every person to whom notice of the application is to be given a reasonable time before the hearing of the application. ORDER 6 SPECIAL MENTION HEARING 6.01 Special mention hearing before committal mention date 1 (1) A party to a committal proceeding may apply to the Court for a special mention hearing before the committal mention date. (2) An application referred to in sub-rule (1) must be in Form 6A. r. 5.04 -- 10 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 7 (3) If the Court grants the application the special mention hearing must take place before the committal mention date. (4) The Court may of its own motion conduct a special mention hearing before the committal mention date. 6.02 Special mention hearing after committal mention hearing (1) A special mention hearing may only be conducted after a committal mention hearing has been held with leave of the Court. (2) An application for leave under sub-rule (1) must be in Form 6B. (3) The Court must not grant leave unless satisfied there are special circumstances. (4) The Court may of its own motion conduct a special mention hearing after the committal mention date. 6.03 Special mention hearing after committal mention date If a special mention hearing takes place after the committal mention date the magistrate who conducted the committal mention hearing, or if that magistrate is unavailable, the Chief Magistrate or a Deputy Chief Magistrate must conduct the special mention hearing. 6.04 Parties may request registrar to cancel a special mention hearing (1) If the parties agree that a special mention hearing should be cancelled, the parties may request the registrar to cancel the special mention hearing and the registrar, if satisfied that there is no need for a special mention hearing, must cancel the special mention hearing accordingly. r. 6.02 -- 11 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 8 (2) A request must be made before the date of the special mention hearing and may be made by telephone. 6.05 Application to be excused from attending special mention hearing An application under clause 3(4) of Schedule 5 to the Act by— (a) the informant or his or her legal representative; or (b) the defendant and the legal practitioners representing the defendant— to be excused from attending a special mention hearing must be in Form 6C. ORDER 7 HAND-UP BRIEFS 7.01 Material to be included in a hand-up brief In addition to any other requirements concerning what is to be contained in a hand-up brief in clause 6(1) of Schedule 5 to the Act, the informant must include in the hand-up brief— (a) a statement of the material facts relevant to the charge; and (b) a list of material in Form 7A. ORDER 8 DEFENCE NOTICE 8.01 Defence notice in response to hand-up brief Notice by the defendant in response to service of a hand-up brief that the defendant— r. 6.05 -- 12 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 9 (a) intends to seek leave to cross-examine a specified person or persons; or (b) requires specified items listed in the hand-up brief to be produced for inspection or a copy given; or (c) is prepared or is not prepared to proceed or proceed further with the hearing of the committal proceeding while a forensic procedure, examination or test described in the hand-up brief remains uncompleted— under clause 12(1) of Schedule 5 to the Act, must be in Form 8A. ORDER 9 CROSS-EXAMINATION 9.01 Notice for leave to cross-examine a witness An application under clause 12(1)(a) of Schedule 5 to the Act for leave to cross-examine a witness is made on the filing of a notice under Form 8A and no other supporting documentation is required. 9.02 Criteria to be taken into account in considering application In considering whether to grant an application referred to in Rule 9.01, the Court must have regard among other matters to— (a) the age of the witness; (b) the importance of the witness for the establishment of the prosecution case, for example, whether the witness is an eye witness and whether the witness is the complainant; r. 9.01 -- 13 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 10 (c) the existence or lack of existence of corroborative evidence; (d) the extent of any admissions; (e) the probative value of the evidence; (f) the issue in dispute; (g) the weight of the evidence; (h) statements of other witnesses that contradict statements of a witness who is not of full age or capacity. 9.03 Objection by informant to production of certain material Any 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 must be in Form 9A. 9.04 Application for leave to cross-examine a witness after expiry of period for giving notice An application under clause 12(5) of Schedule 5 to the Act for leave to cross-examine a witness after the period for giving notice set out in clause 12(1) of that Schedule has expired must be in Form 9B. 9.05 If no notice of intention to seek leave to cross- examine witnesses If a defendant has not given notice to cross- examine witnesses as provided for in clause 12(1)(a) of Schedule 5 to the Act, the Court may at a committal mention hearing— (a) commit the defendant for trial without any further hearing; or (b) discharge the defendant. r. 9.03 -- 14 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 11 ORDER 10 COMMITTAL MENTION 10.01 Expectations (1) The expectations of the Court of legal practitioners at committal mention hearings include— (a) the hand-up brief has been read and instructions taken; (b) an approach to the way the committal proceeding is to be conducted has been considered; (c) consideration has been given to matters such as— (i) legal arguments, for example, jurisdiction, admissibility of statements, privilege; (ii) whether or not the defence needs any other material, for example, transcripts, forensic material; (d) meaningful discussions between the parties have commenced and that any offers to resolve the matter without a hearing have been put well in advance of the committal mention date; (e) any offers made by a defendant have been considered by a permanent prosecutor in the Office of the Director of Public Prosecutions; (f) if a request has been made for a committal hearing— (i) what issues or elements of the charge have been canvassed; r. 10.01 -- 15 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 12 (ii) what issues or elements will not be challenged at the committal hearing; (iii) funding for the legal representation of the defendant is in place; (g) where applicable, section 37A of the Evidence Act 1958 has been complied with; (h) consideration has been given as to whether there is a need to issue a witness summons returnable prior to the committal mention date, including a witness summons for the production of a document or thing. (2) In addition to any expectations applicable to the prosecution as set out in sub-rule (1), the Court expects the informant to have enquired as to the availability of those witnesses in relation to whom the defendant has given notice of intention to cross-examine. ORDER 11 COMPULSORY PROCEDURE 11.01 Applications under section 56A(1) of the Act to be given priority The Court must give priority to an application under section 56A(1) of the Act over other general court business. 11.02 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. 11.03 Form of Order r. 11.01 r. 11.03 -- 16 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 13 An Order under section 56A of the Act must be in Form 11B. 11.04 Service of order The informant must cause a copy of any order under section 56A of the Act to be served on the person to whom it relates. 11.05 Copy of transcript to be provided to the defendant If a person has been examined under section 56A of the Act and the informant intends to tender a record of that examination at the committal proceeding, the informant must cause a copy of a transcript of the recording of the examination to be served on the defendant. ORDER 12 MISCELLANEOUS 12.01 Caution For the purposes of clause 23(2)(b)(i) of Schedule 5 to the Act, the prescribed manner of caution is set out in Form 12A. 12.02 Caution to be given to person charged As provided by section 398 of the Crimes Act 1958, the caution set out in that section and in Form 12B may be used by the Court. 12.03 Alibi caution The Court may inform the defendant of the provisions of section 399A of the Crimes Act 1958 by using the manner of caution set out in Form 12C. __________________ -- 17 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 14 FORMS FORM 2A Rule 2.01 In the Magistrates' Court of Victoria at Court Reference: BETWEEN: [name of informant] v. [name of defendant] Committal mention date: APPEARANCE TAKE NOTICE THAT the legal practitioner (or firm) indicated below *intends to appear for the defendant(s) *represents the defendant(s) *is willing to accept service of documents on behalf of the defendant [name(s) of defendant(s)]. Date: [Signed] Name of legal practitioner (or firm): Address of legal practitioner (or firm): Telephone number: Facsimile number for service of documents: Address for service of documents electronically (if available): Name of person handling the matter: Present address of defendant: _______________ Form 2A -- 18 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 15 FORM 4A Rule 4.02 [heading as in Form 2A] NOTICE OF COMMITTAL MENTION HEARING AND IMPORTANT INFORMATION ABOUT COMMITTAL PROCEEDINGS TO: [defendant(s)]: of [address(es)] COMMITTAL MENTION HEARING A committal mention hearing will be conducted before the Magistrates' Court at [venue] on [date] at [time]. In the next few weeks you will be served with a brief of evidence from the informant. The brief can be served on you or your legal representative if they have filed and served a Notice of Appearance in accordance with the Rules. NATURE OF COMMITTAL PROCEEDINGS 1. A committal proceeding allows the Court to determine after consideration of any evidence and submissions presented to the Court by or on behalf of the informant and the defendant (in accordance with the procedure set out in Schedule 5 to the Magistrates' Court Act 1989) whether the evidence is of sufficient weight to support a conviction or otherwise. 2. Information setting out what the Court may do at a committal mention hearing is set out in clause 4(1) of Schedule 5 to the Magistrates' Court Act 1989. 3. Other relevant information concerning when a committal hearing must be held and the procedures for committal hearings is set out in section 56 and Schedule 5 to the Magistrates' Court Act 1989 and the Magistrates' Court (Committals) Rules 1999. LEGAL REPRESENTATION You are strongly advised to seek legal representation as a matter of urgency. Form 4A -- 19 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 16 If you want legal representation you should contact your legal practitioner or Victoria Legal Aid immediately. WARNING: The committal proceeding will not be delayed for you to seek legal representation unless you are able to show exceptional circumstances and that you have made reasonable efforts to obtain representation before the hearing. [Court use only] Addresses of Victoria Legal Aid— Telephone numbers for Victoria Legal Aid— Telephone number for Law Institute of Victoria Referral Service— NOTICE TO CROSS-EXAMINE WITNESSES If you want to cross-examine a witness you must give notice of your intention to do so no later than 14 days before the committal mention date. Date: [registrar] _______________ Form 4A -- 20 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 17 FORM 4B Rule 4.04 [heading as in Form 2A] APPLICATION FOR THE FIXING OF A LONGER OR SHORTER PERIOD FOR THE HOLDING OF A COMMITTAL MENTION HEARING (clause 4(3) of Schedule 5 to the Magistrates' Court Act 1989) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies to the Court for the Court to fix a longer [or shorter] period for the holding of a committal mention hearing. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: _______________ Form 4B -- 21 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 18 FORM 5A Rule 5.01 [heading as in Form 2A] APPLICATION (to be used if no other Form of application in these Rules is applicable) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies for an order— [set out details of order sought]. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: _______________ Form 5A -- 22 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 19 FORM 6A Rule 6.01(2) [heading as in Form 2A] APPLICATION FOR A SPECIAL MENTION HEARING TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies for an order that a special mention hearing take place before the committal mention date. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: _______________ Form 6A -- 23 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 20 FORM 6B Rule 6.02(2) [heading as in Form 2A] APPLICATION FOR A SPECIAL MENTION HEARING (AFTER A COMMITTAL MENTION HEARING HAS BEEN HELD) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies for leave that a special mention hearing take place after a committal mention hearing has been held. The Committal Mention Date in this committal proceeding was: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: NOTE TO APPLICANT: Rule 6.02(3) of the Magistrates' Court (Committals) Rules 1999 states that the Court must not grant leave unless satisfied there are special circumstances. _______________ Form 6B -- 24 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 21 FORM 6C Rule 6.05 [heading as in Form 2A] APPLICATION TO BE EXCUSED FROM ATTENDING A SPECIAL MENTION HEARING (clause 3(4) of Schedule 5 to the Magistrates' Court Act 1989) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] seeks to be excused by the Court from attending a special mention hearing. The Committal Mention Date in this committal proceeding is [or was]: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: _______________ Form 6C -- 25 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 22 FORM 7A Rule 7.01(b) [heading as in Form 2A] LIST OF MATERIAL INCLUDED IN HAND-UP BRIEF (clause 6(1)(l) of Schedule 5 to the Magistrates' Court Act 1989) 1. A statement of the material facts relevant to the charge is attached. (Rule 7.01(a)). *2. Order(s) were made for the examination of [names of persons] under section 56A of the Magistrates' Court Act 1989 and transcript(s) of the examination(s) *is/are *attached/*not attached. (clause 6(1)(d) of Schedule 5 to the Magistrates' Court Act 1989) OR *2. No orders were made for the examination of any person under section 56A of the Magistrates' Court Act 1989. *2. There are no forensic procedures, examinations or tests on which the informant intends to rely as tending to establish the guilt of the defendant that are not yet completed. OR *3. The following forensic procedures, examinations or tests on which the informant intends to rely as tending to establish the guilt of the defendant are not yet completed [describe here any forensic procedures, examinations or tests that are not yet completed]. (clause 6(1)(j) of Schedule 5 to the Magistrates' Court Act 1989) *4. The following is a list of other admissible statement(s) relevant to the charge available to the informant but on which the informant does not intend to rely. [list statement(s) here] (clause 6(1)(k) of Schedule 5 to the Magistrates' Court Act 1989) OR *4. There is no other admissible statement relevant to the charge available to the informant but on which the informant does not intend to rely. Form 7A -- 26 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 23 5. The admissible documents relevant to the charge available to the informant but on which the informant does not intend to rely are— *running sheets *prisoner's register *attendance register *expert witness notes *witnesses' prior convictions *notes (prosecution witness) *photos or photocopies where it is impractical to produce extra sets *notes (e.g.) surveillance logs, crime scene notes, exhibit logs, diaries (official or otherwise) *other documents (provide details). (clause 6(1)(k) of Schedule 5 to the Magistrates' Court Act 1989) Signature of informant— Dated— NOTE This Form is to be completed by the informant and included in any hand-up brief. *delete if inapplicable _______________ Form 7A -- 27 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 24 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 AND TO: The registrar TAKE NOTICE that the defendant— *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]. *2. 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]. *3. 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 *3. 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 inapplicable Form 8A -- 28 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 25 NOTE Rule 9.02 of the Magistrates' Court (Committals) Rules 1999 provides— "9.02 Criteria to be taken into account in considering application In considering whether to grant an application referred to in Rule 9.01, the Court must have regard among other matters to— (a) the age of the witness; (b) the importance of the witness for the establishment of the prosecution case, for example, whether the witness is an eye witness and whether the witness is the complainant; (c) the existence or lack of existence of corroborative evidence; (d) the extent of any admissions; (e) the probative value of the evidence; (f) the issue in dispute; (g) the weight of the evidence; (h) statements of other witnesses that contradict statements of a witness who is not of full age or capacity.". _______________ Form 8A -- 29 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 26 FORM 9A Rule 9.03 [heading as in Form 2A] NOTICE OF OBJECTION BY INFORMANT TO THE PRODUCTION OF AN ITEM LISTED IN HAND-UP BRIEF (clause 12(4)(a) of Schedule 5 to the Magistrates' Court Act 1989) The informant objects to the production of the following item [or items] listed in the hand-up brief required by the defendant to be produced— [list items]. Date— Signature of Director of Public Prosecutions or Informant— _______________ Form 9A -- 30 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 27 FORM 9B Rule 9.04 [heading as in Form 2A] APPLICATION FOR LEAVE TO CROSS-EXAMINE WITNESS AFTER EXPIRY OF PERIOD FOR GIVING NOTICE (clause 12(5) of Schedule 5 to the Magistrates' Court Act 1989) TO: [identify party (if any) to whom notice of application is to be given] THE APPLICANT [insert name] applies for leave to cross-examine [insert name of witness], because of the existence of exceptional circumstances, 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 has expired. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signature of Applicant or Applicant's legal practitioner: Dated: [registrar] This application was filed by: _______________ Form 9B -- 31 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 28 FORM 11A Rule 11.02 [heading as in Form 2A] APPLICATION FOR COMPULSORY EXAMINATION (section 56A of the Magistrates' Court Act 1989) TO: [name of person who is to attend] THE APPLICANT [insert name] applies for an order— that [name of person] attend before the Court for the purpose of *being examined by or on behalf of the informant *producing a document or thing *being examined by or behalf of the informant and producing a document or thing or both. The Committal Mention Date in this committal proceeding is: [date]. The application will be heard at the Magistrates' Court at [venue] on [date] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Dated: [registrar] This application was filed by: [name of informant] *delete if inapplicable _______________ Form 11A -- 32 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 29 FORM 11B Rule 11.03 [heading as in Form 2A] ORDER REQUIRING ATTENDANCE (section 56A of the Magistrates' Court Act 1989) TO: [name of person who is to attend] An application for an order requiring you to attend before the Court in this committal proceeding was made by the informant under section 56A of the Magistrates' Court Act 1989. The order sought in the application was granted and THE COURT ORDERS that you attend for the purpose of being— * examined by or on behalf of the informant; * producing a document or thing, namely [describe the document or thing]; * examined by or on behalf of the informant and producing a document or thing or both [describe the document or thing]; (a) before the Court; (b) at [venue of Court]; (c) at 10.00 a.m. [or as the case requires] on [date] and until you are excused from further attending. Dated— [registrar] NOTES TO PERSON SERVED WITH ORDER (1) If you do not comply with this order you may be arrested. (2) Any question concerning this order should be addressed not to the Court but to the informant. *delete if inapplicable _______________ Form 11B -- 33 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 30 FORM 12A Rule 12.01 CAUTION (clause 23(2)(b)(i) of Schedule 5 to the Magistrates' Court Act 1989) You do not have to plead guilty or not guilty. You may reserve your plea. If you plead guilty to all the charges or some of the charges the sentencing judge may reduce your sentence. It is also your right to plead not guilty to all of the charges or some of them. Whatever you say will be recorded and may be given in evidence if you appear before a judge. Are you guilty, not guilty, or do you reserve your plea? _______________ FORM 12B Rule 12.02 CAUTION TO BE GIVEN TO PERSON CHARGED (Section 398 of the Crimes Act 1958) "You now have the right to answer the charge against you and may take either of the following courses: (a) You may enter the witness box, take the oath, and say what you want to say in answer to the charge. This is known as giving sworn evidence and when you have given your evidence you may be asked questions about it by the prosecution or the Court; (b) You may say nothing in answer to the charge. In either of these cases you may call any witness or witnesses to give sworn evidence for you. What do you desire to do?" _______________ Form 12A -- 34 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 31 FORM 12C Rule 12.03 ALIBI CAUTION (clause 23(2)(b)(ii) of Schedule 5 to the Magistrates' Court Act 1989) I warn you that if you are committed for trial your right to call evidence in support of an alibi is restricted. To be allowed to call alibi evidence you must give written notice to the Court now or to the Director of Public Prosecutions not later than 10 days after the end of this committal hearing. The notice must contain— (a) the name of each witness you propose to call; (b) the current address (if known to you) of each witness; (c) if the address is not known, all information you have which might help locate the witness; (d) the facts on which you rely— in support of your alibi. Dated: 29 July 1999 MICHAEL ANTHONY ADAMS QC, Chief Magistrate JELENA POPOVIC, Deputy Chief Magistrate DANIEL JOHN MULING, Deputy Chief Magistrate ═══════════════ Form 12C -- 35 of 36 -- S.R. No. 97/1999 Magistrates' Court (Committals) Rules 1999 32 NOTES 1 Rule 6.01: The purposes of a special mention hearing are set out in clause 3 of Schedule 5 to the Magistrates' Court Act 1989. Notes -- 36 of 36 --