Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009

i Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 3 3 Definitions 3 4 Notice to accompany summons or warrant 3 5 Personal service of summons 4 6 When an indictable offence may be heard and determined summarily 4 7 Division heading substituted 4 8 Admissibility of evidence in absence of accused 4 9 Rules with respect to statements 5 10 Contents of hand-up brief 6 11 Rules with respect to recordings 6 12 Contents of plea brief 6 13 Committal mention hearing 6 14 Recording of evidence 6 15 On committing accused for trial 7 16 Evidence taken after committal 7 17 Special mention hearing 7 18 Transfer of charges to Magistrates' Court 8 19 Powers of court at directions hearing 8 20 Order for legal representation for accused 8 21 Manner of giving evidence 8 22 Determination of appeal 9 23 Abandonment of appeal 9 24 Failure to appear on appeal 10 25 Appeal against conviction 11 26 Determination of application for leave to appeal 11 27 New section 284A inserted 11 284A Determination of application for leave to appeal under section 283 11 28 Determination of Crown appeal 12 -- 1 of 268 -- Section Page ii 29 Crown appeal against sentence 12 30 Interlocutory appeals 12 31 DPP may refer point of law to Court of Appeal 13 32 Stay of certain orders during appeal period 13 33 Extension of time for filing or serving notice of appeal or notice of application for leave to appeal 13 34 Powers of single Judge of Appeal 13 35 Bail following appeal 14 36 Petition for mercy 14 37 New section 336A inserted 14 336A Victim who is a witness entitled to be present in court 14 38 Court may act on application or on own motion 15 39 Service of documents 15 40 Notice to appear—costs 16 41 Issue of warrant to arrest 16 42 Transfer of charge to court with jurisdiction 16 43 Regulations 17 44 New section 14A in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 17 45 New section 24AA in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 17 46 Joint committals—Magistrates' Court Act 1989 18 47 Commencement of proceedings in Children's Court 18 48 Joint committals—Children, Youth and Families Act 2005 19 49 Statute law revision 19 50 New Part 8.2 inserted 20 PART 8.2—WITNESSES 20 Division 1—Guiding principles 20 338 Guiding principles 20 Division 2—Evidence concerning complainant 21 339 Application of Division 21 340 Definition 21 341 Prohibition on questions and evidence concerning complainant's chastity 22 342 Restriction on questions and evidence concerning complainant's sexual activities 22 343 Admissibility of sexual history evidence 22 344 Application for leave 22 345 Application for leave out of time 23 346 Contents of application for leave 23 347 Waiver of requirement to apply for leave in writing 24 348 Hearing of application for leave 24 349 Determination of application for leave during summary hearing, committal proceeding or trial 24 -- 2 of 268 -- Section Page iii 350 Determination of application for leave during sentencing hearing 25 351 Court must state reasons if leave granted 26 352 Limitation on sexual history evidence 26 Division 3—Cross-examination of protected witnesses 27 353 Application of Division 27 354 Definitions 27 355 Court may declare witness to be protected witness 28 356 Protected witness not to be cross-examined by accused in person 28 357 When accused is not legally represented 28 358 Jury warning concerning legal representation for cross-examination 30 Division 4—Alternative arrangements for giving evidence 30 359 Application of Division 30 360 Alternative arrangements for giving evidence 31 361 Jury warning concerning alternative arrangements 32 362 Evidence given by closed-circuit television or other facilities 32 363 When court must direct use of closed-circuit television or other facilities for complainant 33 364 When court must direct use of screens for complainant 33 365 When court must direct presence of support person for complainant 34 Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters 34 366 Application of this Division 34 367 Use of recorded evidence-in-chief 35 368 Admissibility of recorded evidence-in-chief 35 Division 6—Procedure and rules for children and cognitively impaired complainants 36 369 Application of Division 36 370 Special hearing for pre-recording evidence 37 371 Time limits for special hearing 37 372 Conduct of special hearing 38 373 Form in which recording of special hearing is to be tendered 39 374 Admissibility of evidence from special hearing 40 375 Jury warning as to recording of special hearing 41 376 Cross-examination of complainant 41 377 Exception to hearsay rule—previous representations made by complainant under 18 years 42 -- 3 of 268 -- Section Page iv Division 7—Admission of recorded evidence of complainant in sexual offence matters 43 378 Application of Division 43 379 Admissibility of recording of complainant's evidence 44 380 Prosecution to give notice of intention to tender recording 45 381 Admission of recording of evidence of complainant 45 382 Jury warning as to recorded evidence of complainant 46 383 Attendance of complainant 46 384 Direct testimony in addition to recording 46 385 Cross-examination of complainant 47 386 Form in which recording of complainant's evidence is to be tendered 48 387 Exception to hearsay rule 48 Division 8—Miscellaneous 49 388 Evidence of specialised knowledge in certain cases 49 389 Audiovisual link evidence from overseas in certain proceedings 49 51 Amendment of cross-references consequential on renumbering 52 52 Renumbering of sections 338–361 consequential on insertion of new Part 8.2 55 53 New section 414 inserted 57 414 Acknowledgment of false statement 57 54 Renumbering of sections 362 onwards 57 55 New Chapter 10 inserted 59 CHAPTER 10—SAVINGS AND TRANSITIONAL PROVISIONS 59 439 Savings and transitional provisions 59 56 Substitution of Schedule 2 59 SCHEDULE 2—Indictable Offences that may be Heard and Determined Summarily 59 1 Common law 59 2 Aboriginal Heritage Act 2006 59 3 Assisted Reproductive Treatment Act 2008 60 4 Crimes Act 1958 60 5 Dangerous Goods Act 1985 64 6 Drugs, Poisons and Controlled Substances Act 1981 65 7 Electricity Industry Act 2000 65 8 Electricity Safety Act 1998 65 9 Environment Protection Act 1970 66 10 Equipment (Public Safety) Act 1994 66 11 Firearms Act 1996 66 12 Food Act 1984 66 -- 4 of 268 -- Section Page v 13 Gas Industry Act 2001 66 14 Gas Safety Act 1997 67 15 Health Records Act 2001 67 16 Heritage Act 1995 67 17 Information Privacy Act 2000 67 18 Juries Act 2000 67 19 Major Sporting Events Act 2009 67 20 Occupational Health and Safety Act 2004 67 21 Police Regulation Act 1958 67 22 Pollution of Waters by Oil and Noxious Substances Act 1986 68 23 Prohibition of Human Cloning for Reproduction Act 2008 68 24 Prostitution Control Act 1994 68 25 Rail Safety Act 2006 68 26 Research Involving Human Embryos Act 2008 68 27 Road Management Act 2004 68 28 Tobacco Act 1987 68 29 Transport Act 1983 69 30 Water Act 1989 69 31 Water Industry Act 1994 69 57 Amendment of Schedule 3 69 58 New Schedule 4 inserted 70 SCHEDULE 4—Savings and Transitional Provisions 70 1 Definitions 70 2 General transitional provision 71 3 Renumbering 71 4 References to superseded provisions 72 5 Commencing a criminal proceeding 72 6 Summary procedure 72 7 Committal proceeding 73 8 Trial 73 9 New trial or further hearing 74 10 Appeals 75 11 Petitions for mercy 76 12 Witnesses 76 13 Costs 78 14 Power to amend when there is a defect or error 78 15 Transfer of charge to court with jurisdiction 78 16 Perjury 78 17 Transitional regulations 79 -- 5 of 268 -- Section Page vi PART 3—AMENDMENT OF CHILDREN, YOUTH AND FAMILIES ACT 2005 80 59 Definitions 80 60 Procedure on appeals to County Court or Supreme Court 81 61 DPP reference 83 62 Children to be proceeded against by summons 83 63 Child to be brought before Court or bail justice 83 64 Referral to Secretary 83 65 Adjournment of criminal proceeding when therapeutic treatment order made 84 66 Division heading amended 84 67 Section heading amended 84 68 Part 5.3 amended 84 69 Substitution of Part 5.4 87 PART 5.4—APPEALS 87 Division 1—Appeal by offender to the County Court or Trial Division of the Supreme Court 87 424 Right of appeal 87 425 How appeal is commenced 87 426 Determination of appeal 89 Division 2—Appeal by DPP against sentence 91 427 DPP's right of appeal against sentence 91 428 How appeal is commenced 91 429 Determination of DPP appeal 92 Division 3—Procedure on appeals from Children's Court 94 430 Late notice of appeal deemed to be application for leave to appeal 94 430A Stay of order 95 430B Bail pending appeal 95 430C Abandonment of appeal 96 430D Appellant's failure to appear 97 430E Respondent's failure to appear on appeal by DPP 99 430F One notice of appeal for 2 or more sentences 100 430G Appeal to County Court or Trial Division of Supreme Court authorised by other Acts 100 Division 4—Reports 101 430H Application of Division 101 -- 6 of 268 -- Section Page vii Subdivision 1—Pre-sentence reports 101 430I Court may order pre-sentence report 101 430J Notification of requirement to submit pre-sentence report 103 430K Pre-sentence report to be filed with court 103 430L Attendance at appellate court of author of pre-sentence report 103 430M Disputed pre-sentence report 105 Subdivision 2—Group conference reports 105 430N Group conference report 105 430O Group conference report to be filed with court 106 Division 5—Appeal to Supreme Court on a question of law 107 430P Appeal to Supreme Court on a question of law 107 430Q Appeal on question of law precludes other appeals 108 Division 6—Appeal to Court of Appeal and referral of point of law to Court of Appeal 109 430R Right of appeal against sentence of detention imposed on appeal from Children's Court 109 430S How appeal is commenced 109 430T Determination of appeal 110 430U Orders etc. on successful appeal 110 430V Powers and procedure 112 430W DPP may refer point of law to Court of Appeal 112 Division 7—Status of sentence and orders during appeal period 113 430X Sentence not stayed during appeal period 113 430Y Bail pending appeal 113 430Z Stay of certain orders during appeal period 114 430ZA Execution of order for forfeiture or destruction of property 114 Division 8—Miscellaneous 115 430ZB Appeal by child under 15 years 115 430ZC Parent may enter into bail 115 430ZD Appeals to be heard in open court 116 430ZE Legal representation 117 430ZF Interpreters 117 430ZG Explanation of and reasons for orders 117 Division 9—Costs on appeal 118 430ZH No costs on appeal or new hearing 118 -- 7 of 268 -- Section Page viii 70 Establishment of corrective services 118 71 Power of arrest in youth justice centre 118 72 Assignment of magistrates 118 73 Jurisdiction of Criminal Division 119 74 Koori Court (Criminal Division) 120 75 Neighbourhood Justice Division 120 76 Procedural guidelines 120 77 Explanation of and reasons for orders 120 78 Powers of Children's Court 121 79 Process 121 80 Pre-sentence reports 121 81 Witness or other person who has previously appeared in Children's Court 122 82 Transfer of proceedings 122 83 Powers of Supreme Court or County Court 122 84 Rules 122 85 Supreme Court—limitation of jurisdiction 123 86 New sections 609 and 610 inserted 123 609 Transitional provision—Criminal Procedure Act 2009 123 610 Transitional provision—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 124 87 Amendment of Schedules 125 PART 4—AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994 126 88 Definitions 126 89 Chief Crown Prosecutor is responsible to Director 127 90 Functions of Director 128 91 Power to discontinue criminal proceedings 128 92 Delegation 128 93 Functions of Crown Prosecutors 129 94 Functions of Solicitor for Public Prosecutions 129 95 Outcome of trial cannot be challenged on ground relating to special decision 129 96 Substitution of section 49 130 49 Supreme Court—limitation of jurisdiction 130 PART 5—CONSEQUENTIAL AND OTHER AMENDMENTS TO OTHER ACTS 131 97 Consequential and other amendments 131 -- 8 of 268 -- Section Page ix PART 6—REPEAL 132 98 Repeal of Act 132 __________________ SCHEDULE—Consequential and Other Amendments 133 1 Aboriginal Heritage Act 2006 133 2 Aboriginal Lands Act 1970 133 3 Accident Compensation Act 1985 133 4 Accident Towing Services Act 2007 133 5 Administrative Law Act 1978 134 6 Agricultural and Veterinary Chemicals (Victoria) Act 1994 134 7 Alcoholics and Drug-dependent Persons Act 1968 134 8 Appeal Costs Act 1998 135 9 Australian Crime Commission (State Provisions) Act 2003 135 10 Australian Grands Prix Act 1994 135 11 Bail Act 1977 136 12 Biological Control Act 1986 139 13 Building Act 1993 139 14 Bus Safety Act 2009 139 15 Business Franchise (Tobacco) Act 1974 141 16 Casino Control Act 1991 141 17 Cemeteries and Crematoria Act 2003 141 18 Charter of Human Rights and Responsibilities Act 2006 141 19 Children's Services Act 1996 141 20 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 142 21 Collusive Practices Act 1965 144 22 Competition Policy Reform (Victoria) Act 1995 145 23 Confiscation Act 1997 145 24 Conservation, Forests and Lands Act 1987 151 25 Constitution Act 1975 152 26 Construction Industry Long Service Leave Act 1997 152 27 Control of Weapons Act 1990 152 28 Conveyancers Act 2006 152 29 Co-operatives Act 1996 152 30 Coroners Act 2008 152 31 Corporations (Ancillary Provisions) Act 2001 153 32 Corporations (Victoria) Act 1990 153 33 Corrections Act 1986 154 34 Country Fire Authority Act 1958 154 35 County Court Act 1958 154 36 Court Security Act 1980 156 37 Credit (Administration) Act 1984 157 38 Credit Act 1984 157 -- 9 of 268 -- Section Page x 39 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 157 40 Crimes Act 1958 172 41 Crown Land (Reserves) Act 1978 176 42 Crown Proceedings Act 1958 176 43 Dairy Act 2000 176 44 Dangerous Goods Act 1985 176 45 Domestic Animals Act 1994 179 46 Domestic Building Contracts Act 1995 179 47 Drugs, Poisons and Controlled Substances Act 1981 179 48 Education and Training Reform Act 2006 180 49 Electricity Industry Act 2000 180 50 Environment Protection Act 1970 180 51 Equal Opportunity Act 1995 182 52 Equipment (Public Safety) Act 1994 182 53 Estate Agents Act 1980 183 54 Evidence Act 1958 183 55 Evidence Act 2008 187 56 Fair Trading Act 1999 193 57 Family Violence Protection Act 2008 194 58 Fisheries Act 1995 195 59 Food Act 1984 195 60 Forests Act 1958 197 61 Fuel Prices Regulation Act 1981 197 62 Gambling Regulation Act 2003 197 63 Gas Industry Act 2001 198 64 Goods Act 1958 199 65 Health Professions Registration Act 2005 199 66 Heritage Act 1995 199 67 Housing Act 1983 199 68 Impounding of Livestock Act 1994 199 69 Imprisonment of Fraudulent Debtors Act 1958 200 70 Infringements Act 2006 200 71 Interpretation of Legislation Act 1984 202 72 Judicial Proceedings Reports Act 1958 202 73 Juries Act 2000 203 74 Land Act 1958 203 75 Landlord and Tenant Act 1958 203 76 Legal Aid Act 1978 203 77 Legal Profession Act 2004 204 78 Liquor Control Reform Act 1998 204 79 Livestock Disease Control Act 1994 204 80 Local Government Act 1989 205 81 Long Service Leave Act 1992 205 82 Magistrates' Court Act 1989 205 83 Major Sporting Events Act 2009 213 84 Marine Act 1988 214 -- 10 of 268 -- Section Page xi 85 Marine Safety Legislation (Lakes Hume and Mulwala) Act 2001 215 86 Mental Health Act 1986 215 87 Mines Act 1958 215 88 Motor Car Traders Act 1986 216 89 New Tax System Price Exploitation Code (Victoria) Act 1999 216 90 Occupational Health and Safety Act 2004 216 91 Petroleum (Submerged Lands) Act 1982 220 92 Plant Health and Plant Products Act 1995 220 93 Police Regulation Act 1958 220 94 Pollution of Waters by Oil and Noxious Substances Act 1986 221 95 Prevention of Cruelty to Animals Act 1986 221 96 Prisoners (Interstate Transfer) Act 1983 222 97 Prohibition of Human Cloning for Reproduction Act 2008 222 98 Prostitution Control Act 1994 222 99 Public Health and Wellbeing Act 2008 222 100 Radiation Act 2005 222 101 Rail Safety Act 2006 223 102 Research Involving Human Embryos Act 2008 225 103 Residential Tenancies Act 1997 225 104 Road Legislation Amendment Act 2009 225 105 Road Management Act 2004 225 106 Road Safety Act 1986 225 107 Sale of Land Act 1962 228 108 Second-Hand Dealers and Pawnbrokers Act 1989 228 109 Securities Industry Act 1975 229 110 Sentencing Act 1991 229 111 Serious Sex Offenders Monitoring Act 2005 240 112 Sex Offenders Registration Act 2004 242 113 Shop Trading Reform Act 1996 242 114 State Electricity Commission Act 1958 242 115 Summary Offences Act 1966 243 116 Supreme Court Act 1986 244 117 Surveillance Devices Act 1999 245 118 Sustainable Forests (Timber) Act 2004 245 119 Terrorism (Community Protection) Act 2003 245 120 Tobacco Act 1987 246 121 Trade Measurement Act 1995 246 122 Trade Unions Act 1958 246 123 Transport Accident Act 1986 247 124 Transport Act 1983 248 125 Travel Agents Act 1986 251 126 Trustee Act 1958 251 127 Trustee Companies Act 1984 251 -- 11 of 268 -- Section Page xii 128 Unclaimed Money Act 2008 252 129 Utility Meters (Metrological Controls) Act 2002 252 130 Victims' Charter Act 2006 252 131 Victorian Civil and Administrative Tribunal Act 1998 252 132 Vital State Projects Act 1976 253 133 Water Act 1989 253 134 Water Industry Act 1994 253 135 Wildlife Act 1975 254 136 Working with Children Act 2005 254 137 Wrongs Act 1958 255 ═══════════════ ENDNOTES 256 -- 12 of 268 -- 1 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 † No. 68 of 2009 [Assented to 24 November 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to make consequential amendments as a result of the Criminal Procedure Act 2009; and Victoria -- 13 of 268 -- Part 1—Preliminary Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 2 (b) to provide transitional arrangements for the commencement of that Act; and (c) to amend that Act to provide for witnesses in sexual offence or family violence cases; and (d) to make other miscellaneous amendments relating to criminal procedure. 2 Commencement (1) This Part and Parts 2 and 6 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 January 2011, it comes into operation on that day. __________________ s. 2 -- 14 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 3 PART 2—AMENDMENT OF CRIMINAL PROCEDURE ACT 2009 3 Definitions In section 3 of the Criminal Procedure Act 2009— (a) in the definition of conviction, for "Chapters 6 and 8" substitute "Chapter 6"; (b) the definition of prison officer is repealed; (c) in the note at the foot of the definition of sentence, for "to make any sentencing order which the Children's Court may make" substitute "to impose any sentence which the Children's Court may impose"; (d) insert the following definitions— "evidence in support of alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; notice to appear means a notice served under section 21; special hearing means a hearing conducted under section 370;". 4 Notice to accompany summons or warrant In section 13 of the Criminal Procedure Act 2009— (a) after "summons to answer to a charge" insert "issued under section 12 or 14"; s. 3 See: Act No. 7/2009. LawToday: www. legislation. vic.gov.au -- 15 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 4 (b) for paragraph (b)(i) substitute— "(i) if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and (ii) if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and"; (c) in paragraph (b)(ii), for "(ii)" substitute "(iii)"; (d) in paragraph (b)(iii), for "(iii)" substitute "(iv)". 5 Personal service of summons In section 16(b) of the Criminal Procedure Act 2009, for "regulations" substitute "rules of court". 6 When an indictable offence may be heard and determined summarily In section 29(2)(b) of the Criminal Procedure Act 2009, for "sentencing orders" substitute "sentences". 7 Division heading substituted For the heading to Division 4 of Part 3.2 of Chapter 3 of the Criminal Procedure Act 2009 substitute— "Division 4—Mention hearing, summary case conference and contest mention hearing". 8 Admissibility of evidence in absence of accused In sections 83(1)(a), 83(4), 84(1)(a) and 84(6) of the Criminal Procedure Act 2009, for "section 80" substitute "section 25(1) or 80". s. 5 -- 16 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 5 9 Rules with respect to statements In the Criminal Procedure Act 2009— (a) in section 38(1), omit "(1)"; (b) section 38(2) is repealed; (c) the note at the foot of section 38(2) is repealed; (d) at the foot of section 38 insert— "Note Section 414 provides for acknowledgment of false statements."; (e) section 47(4) is repealed; (f) the note at the foot of section 47(4) is repealed; (g) at the foot of section 47 insert— "Note Section 414 provides for acknowledgment of false statements."; (h) the note at the foot of section 49(5) is repealed; (i) at the foot of section 49 insert— "Note Section 414 provides for acknowledgment of false statements."; (j) section 112(4) is repealed; (k) at the foot of section 112 insert— "Note Section 414 provides for acknowledgment of false statements.". s. 9 -- 17 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 6 10 Contents of hand-up brief In section 110 of the Criminal Procedure Act 2009— (a) omit "(1)"; (b) in paragraph (d)(vi), for "video recording of a kind referred to in section 37B(2) of the Evidence Act 1958" substitute "audiovisual recording of a kind referred to in section 367,". 11 Rules with respect to recordings In section 113(1) of the Criminal Procedure Act 2009— (a) for "video" substitute "audiovisual"; (b) for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2". 12 Contents of plea brief At the foot of section 117 of the Criminal Procedure Act 2009 insert— "Note Section 414 provides for acknowledgment of false statements.". 13 Committal mention hearing In section 125(1)(a) of the Criminal Procedure Act 2009, for "section 141 or 142" substitute "section 141, 142 or 143". 14 Recording of evidence In the Criminal Procedure Act 2009— (a) in section 130(1), in the definition of recording, for "video" substitute "audiovisual"; (b) in section 139(3), for "a video" substitute "an audiovisual". s. 10 -- 18 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 7 15 On committing accused for trial For section 144(2)(b)(ii) of the Criminal Procedure Act 2009 substitute— "(ii) the provisions of sections 342, 344 and 346, if relevant; and". 16 Evidence taken after committal (1) In section 150(2)(c) of the Criminal Procedure Act 2009, for "section 37B of the Evidence Act 1958" substitute "Division 5 of Part 8.2". (2) After section 150(4) of the Criminal Procedure Act 2009 insert— "(5) The Magistrates' Court must not make an order under subsection (1) in respect of a witness referred to in section 123.". (3) For section 152(3) of the Criminal Procedure Act 2009 substitute— "(3) Without limiting subsection (2), the Magistrates' Court may order that the accused may cross-examine the person giving evidence under this section, irrespective of who calls the person as a witness.". 17 Special mention hearing In section 153(c) of the Criminal Procedure Act 2009, for "section 142" substitute "section 141, 142 or 143". s. 15 -- 19 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 8 18 Transfer of charges to Magistrates' Court After section 168(3) of the Criminal Procedure Act 2009 insert— "(4) If an order is made under this section, the transferring court may— (a) order that the accused appear before the Magistrates' Court on a specified date; or (b) if the accused is a natural person, remand the accused in custody, or grant bail, to appear before the Magistrates' Court on a specified date; or (c) in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, before the Magistrates' Court on a specified date.". 19 Powers of court at directions hearing In section 181(2)(d) of the Criminal Procedure Act 2009, for "section 41G of the Evidence Act 1958" substitute "Division 6 of Part 8.2". 20 Order for legal representation for accused In section 197(7) of the Criminal Procedure Act 2009, for "section 17A of the Supreme Court Act 1986" substitute "this or any other Act". 21 Manner of giving evidence In section 232(3) of the Criminal Procedure Act 2009, for "section 41G and" substitute "Division 6 of Part 8.2 of this Act,". s. 18 -- 20 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 9 22 Determination of appeal At the foot of section 256 of the Criminal Procedure Act 2009 insert— "Note See the definition of sentence in section 3. This includes the recording of a conviction.". 23 Abandonment of appeal (1) For section 266(1) of the Criminal Procedure Act 2009 substitute— "(1) Subject to subsections (2) and (3), an appeal to the County Court may be abandoned by filing a notice of abandonment of appeal, in the form prescribed by the rules of the County Court, with the County Court.". (2) For section 266(3) of the Criminal Procedure Act 2009 substitute— "(3) An appellant who has been sentenced to a term of imprisonment or detention but who is not in custody may abandon the appeal by— (a) surrendering to the registrar of the County Court; and (b) immediately filing a notice of abandonment of appeal in accordance with subsection (1). (3A) If a person surrenders to the registrar of the County Court in accordance with subsection (3), the registrar may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the person.". (3) In section 266(4) of the Criminal Procedure Act 2009 omit "in accordance with subsection (2) or the rules of the County Court". s. 22 -- 21 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 10 (4) In section 266(5)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and". 24 Failure to appear on appeal (1) In section 267(2)(a) of the Criminal Procedure Act 2009, for "the order of the Magistrates' Court" substitute "the sentence of the Magistrates' Court is reinstated and". (2) After section 267(6) of the Criminal Procedure Act 2009 insert— "(7) On the reinstatement of an appeal under subsection (6), the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) if required, the appellant signs the undertaking referred to in subsection (6)(b); and (b) if the appellant is in custody because of the sentence appealed against and bail is granted under section 265, the appellant enters bail. (8) Subsection (7) is subject to section 29 of the Road Safety Act 1986.". (3) In section 268(1) of the Criminal Procedure Act 2009— (a) for "section 257" substitute "section 257 or 260"; (b) for "section 258" substitute "section 258 or 261, as the case may be". (4) In section 268(2) of the Criminal Procedure Act 2009, for "section 258" substitute "section 258 or 261, as the case may be". s. 24 -- 22 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 11 25 Appeal against conviction (1) In section 277(2) of the Criminal Procedure Act 2009, for "appear" substitute "attend". (2) At the foot of section 277(2) of the Criminal Procedure Act 2009 insert— "Note Section 323 enables the Court of Appeal to remand the appellant in custody or grant bail pending a new trial.". 26 Determination of application for leave to appeal (1) In the heading to section 280 of the Criminal Procedure Act 2009, after "appeal" insert "under section 278". (2) In section 280(2) of the Criminal Procedure Act 2009, after "refused" insert "in relation to any ground of appeal". 27 New section 284A inserted After section 284 of the Criminal Procedure Act 2009 insert— "284A Determination of application for leave to appeal under section 283 (1) This section applies to an application for leave to appeal under section 283 that is heard by a single Judge of Appeal under section 315(1). (2) An application for leave to appeal under section 283 may be refused in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the County Court. s. 25 -- 23 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 12 (3) An application may be refused under subsection (2) even if the Judge of Appeal considers that there may be a reasonably arguable ground of appeal. Note Section 315(2) entitles an unsuccessful applicant to have the application determined by the Court of Appeal.". 28 Determination of Crown appeal In section 289(2) of the Criminal Procedure Act 2009, for "whether there is an error in the sentence imposed" substitute "whether an appeal should be allowed". 29 Crown appeal against sentence (1) Section 294(3) of the Criminal Procedure Act 2009 is repealed. (2) At the foot of section 294 of the Criminal Procedure Act 2009 insert— "Note Section 321 provides for the effect on sentence of new evidence.". 30 Interlocutory appeals (1) For section 296(3) of the Criminal Procedure Act 2009 substitute— "(3) A copy of the notice of application for review must be served on the respondent in accordance with section 392 or 394, as the case requires, within the relevant period specified in subsection (2) for filing the notice.". (2) For section 298(2) of the Criminal Procedure Act 2009 substitute— "(2) A copy of the notice of application for leave to appeal must be served on the respondent in accordance with section 392 or 394, as the s. 28 -- 24 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 13 case requires, within the relevant period specified in subsection (1) for filing the notice.". 31 DPP may refer point of law to Court of Appeal In section 308(3) of the Criminal Procedure Act 2009, for "Taxing Master of the Supreme Court" substitute "Costs Court". 32 Stay of certain orders during appeal period In section 311(3) of the Criminal Procedure Act 2009, for "quashed" substitute "set aside". 33 Extension of time for filing or serving notice of appeal or notice of application for leave to appeal In section 313(1)(a) of the Criminal Procedure Act 2009 omit "or under section 14A or 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997". 34 Powers of single Judge of Appeal (1) In section 315(1) of the Criminal Procedure Act 2009— (a) in paragraphs (c) and (d), for "given" substitute "filed and served"; (b) in paragraph (f), for "sentence." substitute "sentence;"; (c) after paragraph (f) insert— "(g) to call on a court and a respondent to show cause why a question of law should not be reserved for determination by the Court of Appeal.". (2) In section 315(2) of the Criminal Procedure Act 2009, after "(1)" insert "in relation to any ground of appeal". s. 31 -- 25 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 14 35 Bail following appeal At the foot of section 323 of the Criminal Procedure Act 2009 insert— "Note Section 277(2) requires the Court of Appeal to order that the appellant appear on a specified date for the new trial.". 36 Petition for mercy For the note at the foot of section 327 of the Criminal Procedure Act 2009 substitute— "Notes 1 Chapter 8 contains general provisions that apply to all criminal proceedings. 2 Clause 11 of Schedule 4 contains transitional provisions.". 37 New section 336A inserted After section 336 of the Criminal Procedure Act 2009 insert— "336A Victim who is a witness entitled to be present in court (1) In a criminal proceeding where a victim of the offence is a witness in the proceeding, the court may order the victim to leave the courtroom until required to give evidence only if the court considers it appropriate to do so. (2) Nothing in this section prevents the court from ordering a victim who is a witness to leave the courtroom at any time after giving evidence.". s. 35 -- 26 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 15 38 Court may act on application or on own motion At the end of section 337 of the Criminal Procedure Act 2009 insert— "(2) Unless the context otherwise requires, a power or discretion referred to in subsection (1) includes a power or discretion to revoke or vary a decision or order made in the exercise of that power or discretion.". 39 Service of documents (1) After section 340(3)(d) of the Criminal Procedure Act 2009 insert— "(da) if the DPP has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the DPP into those facilities; or". (2) After section 340(3) of the Criminal Procedure Act 2009 insert— "(4) If a document is delivered into the facilities of a document exchange in accordance with subsection (3)(da), the day of service of the document is taken to be— (a) the day following the day on which it is so delivered; or (b) if the document is delivered on a Friday, the following Monday— or on any other day that may be proved.". (3) After section 342(b) of the Criminal Procedure Act 2009 insert— "(ba) if the person to be served is represented by a legal practitioner who has facilities for the reception of documents in a document exchange, by delivering a copy of the document addressed to the legal practitioner into those facilities; or". s. 38 -- 27 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 16 (4) At the end of section 342 of the Criminal Procedure Act 2009 insert— "(2) If a document is delivered into the facilities of a document exchange in accordance with subsection (1)(ba), the day of service of the document is taken to be— (a) the day following the day on which it is so delivered; or (b) if the document is delivered on a Friday, the following Monday— or on any other day that may be proved.". 40 Notice to appear—costs At the end of section 350 of the Criminal Procedure Act 2009 insert— "(2) If a notice to appear lapses under section 22(1) and notice is not given in accordance with section 23, the Magistrates' Court may award costs against the member of the police force or public official who served the notice as if the notice to appear were a criminal proceeding in the Magistrates' Court.". 41 Issue of warrant to arrest In section 359(4) of the Criminal Procedure Act 2009, for "appear" substitute "attend". 42 Transfer of charge to court with jurisdiction At the end of section 361 of the Criminal Procedure Act 2009 insert— "(2) If an order is made under this section, the transferring court may— (a) order that the accused appear before the court to which the charge is transferred on a specified date; or s. 40 -- 28 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 17 (b) if the accused is a natural person, remand the accused in custody, or grant bail, to appear before the court to which the charge is transferred on a specified date; or (c) in the case of a corporate accused, order the accused to appear, by a representative or a legal practitioner, before the court to which the charge is transferred on a specified date.". 43 Regulations After section 367(1)(e) of the Criminal Procedure Act 2009 insert— "(ea) the making, use, possession, storage, access to and destruction of an audio or audiovisual recording referred to in Chapter 4 or 5 or Part 8.2;". 44 New section 14A in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 In section 370 of the Criminal Procedure Act 2009, in proposed new section 14A(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 313 of the Criminal Procedure Act 2009" substitute "section 76C". 45 New section 24AA in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 In section 371 of the Criminal Procedure Act 2009— (a) in proposed new section 24AA(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (i) for "an accused" substitute "a person"; s. 43 -- 29 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 18 (ii) for "the accused" substitute "the person"; (b) in proposed new section 24AA(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 313 of the Criminal Procedure Act 2009" substitute "section 76C"; (c) in proposed new section 24AA(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "the accused" (wherever occurring) substitute "the appellant". 46 Joint committals—Magistrates' Court Act 1989 In section 373 of the Criminal Procedure Act 2009— (a) in proposed new section 25(3) of the Magistrates' Court Act 1989, for "defendant" (wherever occurring) substitute "accused"; (b) in proposed new section 25(4) of the Magistrates' Court Act 1989— (i) for "defendant" substitute "accused"; (ii) for "defendants" substitute "accused"; (c) in proposed new section 25(8)(b) of the Magistrates' Court Act 1989, for "defendant" substitute "accused". 47 Commencement of proceedings in Children's Court In section 376 of the Criminal Procedure Act 2009, in the heading to proposed new section 344A of the Children, Youth and Families Act 2005, for "charge" substitute "charge-sheet". s. 46 -- 30 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 19 48 Joint committals—Children, Youth and Families Act 2005 In section 377 of the Criminal Procedure Act 2009— (a) in proposed new section 516A of the Children, Youth and Families Act 2005, for "defendant" (wherever occurring) substitute "accused"; (b) in proposed new section 516A(1)(b)(ii) of the Children, Youth and Families Act 2005, after "manslaughter," insert "child homicide, defensive homicide,"; (c) in proposed new section 516A(2)(e) of the Children, Youth and Families Act 2005, for "defendants" substitute "accused". 49 Statute law revision In the Criminal Procedure Act 2009— (a) in section 41(1)(d)(iii), for "charge." substitute "charge; and"; (b) in the heading to section 69, for "no case" substitute "no-case"; (c) in section 69(2), for "no case" substitute "no-case"; (d) in section 72(3), for "to do so" substitute "to do so,"; (e) in section 118(1), for "informant," substitute "informant"; (f) in section 118(3)(a), for "informant," substitute "informant"; (g) in section 120(2), for "informant," substitute "informant"; (h) in section 150(4), for "section" substitute "sections"; s. 48 -- 31 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 20 (i) in note 1 at the foot of section 185, for "Sections" substitute "Section"; (j) in section 212(d), for "(c)," substitute "(c)"; (k) in section 229(3), for "no case" substitute "no-case"; (l) in section 242(6), for "made" substitute "imposed"; (m) in the heading to section 264, for "order" substitute "sentence"; (n) in section 272(5), after "copy" insert "of the"; (o) in section 339(2)(b) omit "by"; (p) in section 374(1)(i), for "proceeding," substitute "proceeding"; (q) in section 378, in proposed new section 15B(2) of the Appeal Costs Act 1998, for "accused" (wherever occurring) substitute "respondent". 50 New Part 8.2 inserted After Part 8.1 of Chapter 8 of the Criminal Procedure Act 2009 insert— "PART 8.2—WITNESSES Division 1—Guiding principles 338 Guiding principles It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that— (a) there is a high incidence of sexual violence within society; and s. 50 -- 32 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 21 (b) sexual offences are significantly under- reported; and (c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and (d) offenders are commonly known to their victims; and (e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred. Division 2—Evidence concerning complainant 339 Application of Division (1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence. (2) This Division applies to all complainants in a criminal proceeding referred to in subsection (1). (3) This Division applies despite anything in this or any other Act or any rule of law to the contrary. 340 Definition In this Division— sexual history evidence means evidence that relates to or tends to establish the fact that the complainant— (a) was accustomed to engaging in sexual activities; or s. 50 -- 33 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 22 (b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person. 341 Prohibition on questions and evidence concerning complainant's chastity The court must not allow any questions as to, or admit any evidence of, the general reputation of the complainant with respect to chastity. 342 Restriction on questions and evidence concerning complainant's sexual activities The complainant must not be cross- examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court. 343 Admissibility of sexual history evidence Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates. 344 Application for leave An application for leave under section 342— (a) in the case of a summary proceeding, must be filed with the Magistrates' Court and served on the informant in accordance with section 392 at least 7 days before the summary hearing; (b) in the case of a committal proceeding, must be filed with the Magistrates' Court and served on the informant and s. 50 -- 34 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 23 the DPP in accordance with section 392 at least 7 days before the committal hearing; (c) in the case of a trial, must be filed with the County Court or the Supreme Court (as the case requires) and served on the DPP in accordance with section 392— (i) at least 14 days before the day on which the trial is listed to commence; or (ii) if a special hearing is to be held, at least 14 days before that hearing; (d) in the case of a sentencing hearing, must be filed with the relevant court and served on the informant or the DPP (as the case requires) in accordance with section 392 at least 7 days before the sentencing hearing is listed to commence. 345 Application for leave out of time If it is in the interests of justice to do so, the court may hear and determine an application for leave under section 342 after the expiry of the relevant time limit specified in section 344. 346 Contents of application for leave (1) An application for leave under section 342 must be in writing and set out the matters required by subsection (2) or (3), as the case requires. (2) An application for leave to cross-examine the complainant as to the sexual activities of the complainant must set out— s. 50 -- 35 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 24 (a) the initial questions sought to be asked of the complainant; and (b) the scope of the questioning sought to flow from the initial questioning; and (c) how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit. (3) An application for leave to admit evidence as to the sexual activities of the complainant must— (a) identify the evidence that is sought to be admitted; and (b) set out how the evidence has substantial relevance to facts in issue. 347 Waiver of requirement to apply for leave in writing If it is in the interests of justice to do so, the court may waive the requirement that an application for leave under section 342 be made in writing. 348 Hearing of application for leave An application for leave under section 342 must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant. 349 Determination of application for leave during summary hearing, committal proceeding or trial In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial s. 50 -- 36 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 25 relevance to a fact in issue and that it is in the interests of justice to allow the cross- examination or to admit the evidence, having regard to— (a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and (b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and (c) the need to respect the complainant's personal dignity and privacy; and (d) the right of the accused to fully answer and defend the charge. Note Section 352 limits the relevance of sexual history evidence. 350 Determination of application for leave during sentencing hearing In the course of a sentencing hearing, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to the issue of appropriate sentence and the offender— (a) has pleaded guilty to all sexual offences charged against the offender; or s. 50 -- 37 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 26 (b) has been found guilty of all sexual offences charged against the offender. Note Section 352 limits the relevance of sexual history evidence. 351 Court must state reasons if leave granted (1) If the court grants leave under section 342 it— (a) must state in writing the reasons for granting leave; and (b) cause those reasons to be entered in the records of the court. (2) The failure of a court to comply with subsection (1) does not invalidate any order made by it. 352 Limitation on sexual history evidence Sexual history evidence is not to be regarded— (a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or (b) as being proper matter for cross- examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant. s. 50 -- 38 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 27 Division 3—Cross-examination of protected witnesses 353 Application of Division (1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for— (a) a sexual offence; or (b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008. (2) This Division applies to a protected witness in a criminal proceeding referred to in subsection (1). 354 Definitions In this Division— family member, in relation to the complainant or the accused, includes— (a) a person who is or has been married to the complainant or the accused; and (b) a person who has or has had an intimate personal relationship with the complainant or the accused; and (c) a person who is or has been the parent or step-parent of the complainant or the accused; and (d) a child who normally or regularly resides with the complainant or the accused; and s. 50 -- 39 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 28 (e) a guardian of the complainant or the accused; and (f) another person who is or has been ordinarily a member of the household of the complainant or the accused; protected witness means— (a) the complainant; or (b) a family member of the complainant; or (c) a family member of the accused; or (d) any other witness whom the court declares under section 355 to be a protected witness. 355 Court may declare witness to be protected witness The court may at any time declare a witness to be a protected witness. 356 Protected witness not to be cross- examined by accused in person A protected witness must not be cross- examined by the accused in person. 357 When accused is not legally represented (1) If the accused is not legally represented, the court must— (a) inform the accused and the jury (if any) that the accused is not permitted personally to cross-examine a protected witness; and s. 50 -- 40 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 29 (b) ask the accused whether the accused has sought legal representation for the cross-examination of a protected witness; and (c) if satisfied that the accused has not had a reasonable opportunity to obtain legal representation, grant an adjournment if so requested by the accused. (2) If the accused does not obtain legal representation for the cross-examination of a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to provide legal representation for the accused for that purpose. (3) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2). (4) A legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give any instructions to that legal practitioner. (5) If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination. s. 50 -- 41 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 30 358 Jury warning concerning legal representation for cross-examination If the accused is only legally represented for the cross-examination of a protected witness, the trial judge must warn the jury— (a) that it is routine practice for an unrepresented accused to obtain or be provided with legal representation for the cross-examination of a protected witness; and (b) that no adverse inference may be drawn against the accused as a result of the cross-examination not being conducted by the accused in person; and (c) that the evidence given under cross- examination is not to be given any greater or lesser weight as a result of the cross-examination not being conducted by the accused in person. Division 4—Alternative arrangements for giving evidence 359 Application of Division (1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for— (a) a sexual offence; or (b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008. s. 50 -- 42 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 31 (2) This Division applies to all witnesses (including complainants) in a criminal proceeding referred to in subsection (1). (3) This Division applies at any stage of the criminal proceeding, including an appeal or rehearing. 360 Alternative arrangements for giving evidence The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements— (a) permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom; (b) using screens to remove the accused from the direct line of vision of the witness; (c) permitting a person, chosen by the witness and approved by the court for this purpose, to be beside the witness while the witness is giving evidence, for the purpose of providing emotional support to the witness; (d) permitting only persons specified by the court to be present while the witness is giving evidence; (e) requiring legal practitioners not to robe; s. 50 -- 43 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 32 (f) requiring legal practitioners to be seated while examining or cross- examining the witness. Notes 1 Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion. 2 Section 337(2) provides that this direction may be varied or revoked. 361 Jury warning concerning alternative arrangements If the court directs that alternative arrangements be made for the giving of evidence by a witness, the trial judge must warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the making of those arrangements. 362 Evidence given by closed-circuit television or other facilities (1) This section applies to arrangements referred to in section 360(a) that are directed to be made under that section. (2) Any place outside the courtroom where the witness is permitted to give evidence is taken to be part of the courtroom while the witness is there for the purpose of giving evidence. (3) The court must direct that any evidence given by the witness is recorded. (4) The court may make any order it considers appropriate to enable the witness to view any place or thing, or identify any person or thing, for the purposes of the proceeding or the evidence of the witness. s. 50 -- 44 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 33 363 When court must direct use of closed- circuit television or other facilities for complainant If the witness is a complainant, the court must direct that an arrangement referred to in section 360(a) be made unless— (a) the prosecution applies for the complainant to give evidence in the courtroom; and (b) the court is satisfied that the complainant— (i) is aware of the right of the complainant to give evidence in another place by closed-circuit television or other facilities; and (ii) is able and wishes to give evidence in the courtroom. 364 When court must direct use of screens for complainant If the witness is a complainant and is to give evidence in the courtroom, the court must direct that an arrangement referred to in section 360(b) be made unless the court is satisfied that the complainant— (a) is aware of the right of the complainant to give evidence while screens are used to remove the accused from the direct line of vision of the complainant; and (b) does not wish a screen to be so used. s. 50 -- 45 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 34 365 When court must direct presence of support person for complainant (1) If the witness is a complainant, the court must direct that an arrangement referred to in section 360(c) be made unless the court is satisfied that the complainant— (a) is aware of the right of the complainant to have a support person when giving evidence; and (b) does not wish to have a support person. (2) Subsection (1) applies whether the witness is to give evidence in the courtroom or in another place. Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters 366 Application of this Division (1) This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for— (a) a sexual offence; or (b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person. Note For committal proceedings see Chapter 4. (2) This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is— (a) a person under the age of 18 years; or (b) a person with a cognitive impairment. s. 50 -- 46 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 35 (3) In this Division, witness means a witness referred to in subsection (2). 367 Use of recorded evidence-in-chief A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section. 368 Admissibility of recorded evidence-in- chief (1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if— (a) a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394— (i) in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing; (ii) in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is to be held, at least 14 days before that hearing; and (b) the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the s. 50 -- 47 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 36 regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and (c) at the summary hearing, special hearing or trial, the witness— (i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and (ii) is available for cross-examination and re-examination. (2) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding. (3) The court may rule as inadmissible the whole or any part of the contents of a recording. Division 6—Procedure and rules for children and cognitively impaired complainants 369 Application of Division (1) This Division applies to a trial in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence. (2) This Division applies to a complainant in a criminal proceeding referred to in subsection (1) if, at the time at which the proceeding commenced, the complainant— (a) was under the age of 18 years; or (b) had a cognitive impairment. (3) In the Division, complainant means a complainant referred to in subsection (2). s. 50 -- 48 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 37 370 Special hearing for pre-recording evidence (1) Subject to subsection (2), the whole of the evidence (including cross-examination and re-examination) of a complainant must be— (a) given at a special hearing under this Division and recorded as an audiovisual recording; and (b) presented to the court in the form of that recording. (2) On the application of the prosecution, the court may direct that subsection (1) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant— (a) is aware of the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and (b) is able and wishes to give direct testimony in the proceeding. Note Division 4 provides that the court may make alternative arrangements for the giving of direct testimony. 371 Time limits for special hearing (1) If a special hearing is to be held, it must be held— (a) within 3 months after the day on which the accused is committed for trial; and s. 50 -- 49 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 38 (b) before the court at which the indictment is filed. Note Section 212 imposes time limits for commencing trials for sexual offences. (2) The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so. (3) The court may extend time under subsection (2) before or after the time expires. (4) More than one extension of time may be granted under subsection (2). 372 Conduct of special hearing (1) At a special hearing— (a) the accused and his or her legal practitioner are to be present in the courtroom; (b) the accused— (i) is not to be in the same room as the complainant when the complainant's evidence is being taken; (ii) is entitled to see and hear the complainant while the complainant is giving evidence and to have at all times the means of communicating with his or her legal practitioner; s. 50 -- 50 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 39 (c) no person, other than a person authorised by the court, is to be present in the courtroom or the same room as the complainant when the complainant's evidence is being taken; (d) the evidence of the complainant is to be given by means of closed-circuit television or other facilities that enable communication between the room in which the complainant is present and the courtroom; (e) except as provided by this Division, the usual rules of evidence apply. (2) The room in which the complainant gives evidence is taken to be part of the courtroom while the complainant is there for the purpose of giving evidence. 373 Form in which recording of special hearing is to be tendered (1) A recording referred to in section 370(1) that is tendered as evidence by the prosecution must be the best available record, or be comprised of the best available records, of the evidence of the complainant. (2) In subsection (1)— the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence. (3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available. s. 50 -- 51 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 40 374 Admissibility of evidence from special hearing (1) In this section— recording means a recording referred to in section 370(1). (2) Subject to subsection (3), a recording is admissible in evidence as if its contents were the direct testimony of the complainant— (a) in the proceeding; and (b) unless the relevant court otherwise orders, in— (i) any new trial of, or appeal from, the proceeding; or (ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or (iii) a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded. (3) The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible. Note A party may apply for a ruling under subsection (3): section 337. (4) Subject to subsection (3), the whole of a recording must be heard by the court. (5) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the s. 50 -- 52 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 41 person attains the age of 18 years before the evidence is presented in a proceeding. (6) Subject to section 376(3), if under this section a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so for cross-examination or re-examination. 375 Jury warning as to recording of special hearing If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury— (a) that it is routine practice for the evidence of a complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and (b) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and (c) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded. 376 Cross-examination of complainant (1) A complainant whose evidence is recorded under section 370 cannot be cross-examined or re-examined without leave. (2) A court must not grant leave to cross- examine a complainant referred to in subsection (1) unless the court is satisfied that— s. 50 -- 53 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 42 (a) the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or (b) if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or (c) it is otherwise in the interests of justice to permit the complainant to be cross- examined or re-examined. (3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined. 377 Exception to hearsay rule—previous representations made by complainant under 18 years (1) In this section— asserted fact has the same meaning as in the Evidence Act 2008; hearsay rule has the same meaning as in the Evidence Act 2008; previous representation has the same meaning as in the Evidence Act 2008. (2) This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant. s. 50 -- 54 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 43 (3) Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by— (a) the complainant; or (b) a person who saw, heard or otherwise perceived the representation being made. (4) Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made. (5) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (6) Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness. (7) Nothing in this section takes away from or limits any discretion a court has to exclude evidence. Division 7—Admission of recorded evidence of complainant in sexual offence matters 378 Application of Division (1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence. s. 50 -- 55 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 44 (2) This Division applies to a complainant in a criminal proceeding referred to in subsection (1), other than a complainant whose evidence has been taken at a special hearing under Division 6. (3) This Division applies to a recording of the evidence (including cross-examination and re-examination) of a complainant given during a trial in a criminal proceeding referred to in subsection (1). (4) If the jury is discharged without verdict before a complainant completes his or her evidence, this Division applies to a recording of the partial evidence of the complainant. (5) In this Division— complainant means a complainant referred to in subsection (2); recording means a recording referred to in subsection (3) or (4). 379 Admissibility of recording of complainant's evidence Subject to section 381, a recording is admissible in evidence as if its contents were the direct testimony of the complainant— (a) in the proceeding; and (b) unless the relevant court otherwise orders, in— (i) any new trial of, or appeal from, the proceeding; or (ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or s. 50 -- 56 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 45 (iii) a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded. 380 Prosecution to give notice of intention to tender recording (1) If the prosecution intends to apply to tender a recording as evidence in a proceeding referred to in section 379, the prosecution must serve on the accused and file in court written notice of that intention at least 21 days before the day on which the trial or hearing is listed to commence. (2) The court may dispense with or vary a requirement imposed by subsection (1). 381 Admission of recording of evidence of complainant (1) The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to— (a) whether the complainant's recorded evidence is complete, including cross- examination and re-examination; (b) the effect of editing any inadmissible evidence from the recording; (c) the availability or willingness of the complainant to give further evidence; (d) whether the accused would be unfairly disadvantaged by the admission of the recording; (e) any other matter that the court considers relevant. s. 50 -- 57 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 46 (2) The court may admit the whole or any part of the contents of a recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible. 382 Jury warning as to recorded evidence of complainant If a recording is admitted into evidence under section 381, the trial judge must warn the jury— (a) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and (b) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded. 383 Attendance of complainant Subject to sections 384 and 385, if a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so to give further evidence. 384 Direct testimony in addition to recording (1) On the application of the prosecution, the court may direct that the complainant is to give direct testimony additional to a recording admitted into evidence if the court is satisfied that— (a) the complainant is able and wishes to give direct testimony; and (b) it is in the interests of justice to do so. s. 50 -- 58 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 47 (2) A complainant may be cross-examined and re-examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1). Note Any other cross-examination requires leave under section 385. 385 Cross-examination of complainant (1) Subject to section 384(2), if a recording of the evidence of the complainant is admitted into evidence in a proceeding, the complainant cannot be cross-examined or re-examined without leave. (2) A court must not grant leave to cross- examine a complainant unless the court is satisfied that— (a) the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or (b) if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or (c) it is otherwise in the interests of justice to permit the complainant to be cross- examined or re-examined. (3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined. s. 50 -- 59 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 48 386 Form in which recording of complainant's evidence is to be tendered (1) A recording that is tendered as evidence by the prosecution under this Division must be the best available record, or be comprised of the best available records, of the evidence of the complainant. (2) In subsection (1)— the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence. (3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available. 387 Exception to hearsay rule (1) In this section— hearsay rule has the same meaning as in the Evidence Act 2008. (2) The hearsay rule does not prevent— (a) the admission of a recording in accordance with this Division; or (b) the use of the recording to prove the existence of a fact that the complainant intended to assert by a representation made in the recorded evidence. s. 50 -- 60 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 49 Division 8—Miscellaneous 388 Evidence of specialised knowledge in certain cases Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court may receive evidence of a person's opinion that is based on that person's specialised knowledge (acquired through training, study or experience) of— (a) the nature of sexual offences; and (b) the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence. 389 Audiovisual link evidence from overseas in certain proceedings (1) This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against section 49A(1) of the Crimes Act 1958. (2) The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if— (a) the witness will give the evidence from outside Australia; and (b) the witness is not an accused in the proceeding; and s. 50 -- 61 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 50 (c) the facilities required by subsection (3) are available or can reasonably be made available; and (d) the court is satisfied that attendance of the witness at the court to give the evidence would— (i) cause unreasonable expense or inconvenience; or (ii) cause the witness psychological harm or unreasonable distress; or (iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and (e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link. (3) A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting (the Victorian point) and the place where the evidence is given (the overseas point) are equipped with audiovisual facilities that— (a) enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and (b) enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point. s. 50 -- 62 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 51 (4) The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence. (5) An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either— (a) by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or (b) at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court. (6) A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section. (7) This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies. (8) Nothing in this section limits the application of this Part to a charge for an offence against section 49A(1) of the Crimes Act 1958. __________________". s. 50 -- 63 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 52 51 Amendment of cross-references consequential on renumbering In the Criminal Procedure Act 2009— (a) in section 2(2), for "384" substitute "437"; (b) in section 3— (i) in the definition of accused, for "362" substitute "415"; (ii) in the definition of ordinary service, for "342" substitute "394"; (iii) in the definition of personal service, for "339" substitute "391"; (c) in section 5(c), for "362" substitute "415"; (d) in the note at the foot of section 14(3), for "349(3)" substitute "401(3)"; (e) in section 16, for "339" substitute "391"; (f) in the note at the foot of section 16, for "347(4)" substitute "399(4)"; (g) in section 17(1), for "339" substitute "391"; (h) in the note at the foot of section 17(1), for "342" substitute "394"; (i) in section 17(3), for "342(a)" substitute "394(a)"; (j) in section 36(1), for "339" substitute "391"; (k) in the note at the foot of section 36(1), for "342" substitute "394"; (l) in section 40(1), for "339" substitute "391"; (m) in the note at the foot of section 40(1), for "342" substitute "394"; (n) in note 1 at the foot of section 41, for "363" substitute "416"; s. 51 -- 64 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 53 (o) in the note at the foot of section 42, for "363" substitute "416"; (p) in note 2 at the foot of section 45, for "363" substitute "416"; (q) in section 50(1), for "340" substitute "392"; (r) in section 51(4), for "340" substitute "392"; (s) in section 80(1)(a), for "342" substitute "394"; (t) in section 90(1), for "340" substitute "392"; (u) in section 90(2), for "339" substitute "391"; (v) in section 91(3), for "340" substitute "392"; (w) in section 94(1)(a), for "342" substitute "394"; (x) in section 105(2)(b), for "339" substitute "391"; (y) in section 108(2), for "339" substitute "391"; (z) in the note at the foot of section 108(2), for "342" substitute "394"; (za) in the note at the foot of section 110, for "363" substitute "416"; (zb) in the note at the foot of section 111, for "363" substitute "416"; (zc) in section 116(3), for "342" substitute "394"; (zd) in section 143(2)(b), for "340" substitute "392"; (ze) in section 148, for "341" substitute "393"; (zf) in note 2 at the foot of section 161, for "362" substitute "415"; s. 51 -- 65 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 54 (zg) in section 171(2), for "339" substitute "391"; (zh) in the note at the foot of section 174, for "359" substitute "411"; (zi) in section 175(1), for "339" substitute "391"; (zj) in section 183(1), for "340" substitute "392"; (zk) in note 2 at the foot of section 185, for "363" substitute "416"; (zl) in section 189(1), for "340" substitute "392"; (zm) in section 190(3), for "340" substitute "392"; (zn) in section 250(b), for "352 or 358" substitute "404 or 410"; (zo) in section 255(2), for "340" substitute "392"; (zp) in section 258(2), for "339" substitute "391"; (zq) in section 261(2), for "339" substitute "391"; (zr) in section 272(5)— (i) for "339" substitute "391"; (ii) for "340" substitute "392"; (zs) in section 288(3), for "339" substitute "391"; (zt) in section 292(3), for "339" substitute "391"; s. 51 -- 66 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 55 (zu) in section 296(3), for "340 or 342" substitute "392 or 394"; (zv) in section 298(2), for "340 or 342" substitute "392 or 394"; (zw) in section 338— (i) for "339" substitute "391"; (ii) for "340" substitute "392"; (iii) for "341" substitute "393"; (iv) for "342" substitute "394"; (zx) in section 343— (i) for "342" substitute "394"; (ii) for "339" substitute "391"; (zy) in section 349(4), for "358" substitute "410"; (zz) in section 353, for "352 or 358" substitute "404 or 410"; (zza) in the note at the foot of section 355(2), for "342" substitute "394"; (zzb) in section 384(2), for "365" substitute "418". 52 Renumbering of sections 338–361 consequential on insertion of new Part 8.2 In the Criminal Procedure Act 2009— (a) in the heading to Part 8.2, for "8.2" substitute "8.3"; (b) in section 338, for "338" substitute "390"; (c) in section 339, for "339" substitute "391"; (d) in section 340, for "340" substitute "392"; (e) in section 341, for "341" substitute "393"; s. 52 -- 67 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 56 (f) in section 342, for "342" substitute "394"; (g) in section 343, for "343" substitute "395"; (h) in section 344, for "344" substitute "396"; (i) in section 345, for "345" substitute "397"; (j) in section 346, for "346" substitute "398"; (k) in section 347, for "347" substitute "399"; (l) in the heading to Part 8.3, for "8.3" substitute "8.4"; (m) in section 348, for "348" substitute "400"; (n) in section 349, for "349" substitute "401"; (o) in section 350, for "350" substitute "402"; (p) in section 351, for "351" substitute "403"; (q) in section 352, for "352" substitute "404"; (r) in section 353, for "353" substitute "405"; (s) in section 354, for "354" substitute "406"; (t) in section 355, for "355" substitute "407"; (u) in section 356, for "356" substitute "408"; (v) in section 357, for "357" substitute "409"; (w) in section 358, for "358" substitute "410"; (x) in the heading to Part 8.4, for "8.4" substitute "8.5"; (y) in section 359, for "359" substitute "411"; (z) in section 360, for "360" substitute "412"; (za) in section 361, for "361" substitute "413". s. 52 -- 68 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 57 53 New section 414 inserted After section 413 of the Criminal Procedure Act 2009 insert— "414 Acknowledgment of false statement A person is liable to the penalties of perjury if— (a) the person makes a written statement for the purposes of a criminal proceeding or potential criminal proceeding or the investigation of an offence; and (b) the statement contains an acknowledgment signed in the presence of a person referred to in Schedule 3 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; and (c) the person knows at the time of signing the acknowledgment that the statement is false. Notes 1 Section 314 of the Crimes Act 1958 provides for the offence of perjury. 2 Sections 38, 47 and 112 of this Act set out rules with respect to statements in summary hearings and committal proceedings.". 54 Renumbering of sections 362 onwards In the Criminal Procedure Act 2009— (a) in section 362, for "362" substitute "415"; (b) in section 363, for "363" substitute "416"; s. 53 -- 69 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 58 (c) in section 364, for "364" substitute "417"; (d) in section 365, for "365" substitute "418"; (e) in section 366, for "366" substitute "419"; (f) in section 367, for "367" substitute "420"; (g) in section 368, for "368" substitute "421"; (h) in section 369, for "369" substitute "422"; (i) in section 370, for "370" substitute "423"; (j) in section 371, for "371" substitute "424"; (k) in section 372, for "372" substitute "425"; (l) in section 373, for "373" substitute "426"; (m) in section 374, for "374" substitute "427"; (n) in section 375, for "375" substitute "428"; (o) in section 376, for "376" substitute "429"; (p) in section 377, for "377" substitute "430"; (q) in section 378, for "378" substitute "431"; (r) in section 379, for "379" substitute "432"; (s) in section 380, for "380" substitute "433"; (t) in section 381, for "381" substitute "434"; (u) in section 382, for "382" substitute "435"; (v) in section 383, for "383" substitute "436"; (w) in section 384, for "384" substitute "437"; (x) in section 385, for "385" substitute "438". s. 54 -- 70 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 59 55 New Chapter 10 inserted After Chapter 9 of the Criminal Procedure Act 2009 insert— "CHAPTER 10—SAVINGS AND TRANSITIONAL PROVISIONS 439 Savings and transitional provisions Schedule 4 has effect. __________________". 56 Substitution of Schedule 2 For Schedule 2 to the Criminal Procedure Act 2009 substitute— "SCHEDULE 2 Section 28(1) INDICTABLE OFFENCES THAT MAY BE HEARD AND DETERMINED SUMMARILY 1 Common law 1.1 Offences at common law of conspiracy to cheat and defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000. 1.2 Offences at common law of conspiracy to defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000. 2 Aboriginal Heritage Act 2006 2.1 Indictable offences under the Aboriginal Heritage Act 2006. s. 55 -- 71 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 60 3 Assisted Reproductive Treatment Act 2008 3.1 Indictable offences under the Assisted Reproductive Treatment Act 2008. 4 Crimes Act 1958 4.1 Offences under section 17 of the Crimes Act 1958 (causing serious injury recklessly). 4.2 Offences under section 27 of the Crimes Act 1958 (extortion with threat to kill). 4.3 Offences under section 54 of the Crimes Act 1958 (occupier, etc. permitting unlawful sexual penetration). 4.4 Offences under section 74 of the Crimes Act 1958 (theft), if— (a) the amount or value of the property alleged to have been stolen does not in the judgment of the court exceed $100 000; or (b) the property alleged to have been stolen is a motor vehicle. 4.5 Offences under section 75 of the Crimes Act 1958 (robbery), if the amount or value of the property alleged to have been stolen does not in the judgment of the court exceed $100 000. 4.6 Offences under section 76 of the Crimes Act 1958 (burglary), if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100 000. 4.7 Offences under section 77 of the Crimes Act 1958 (aggravated burglary), if the offence involves an intent to steal property s. 56 -- 72 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 61 the amount or value of which does not in the judgment of the court exceed $100 000. 4.8 Offences under section 78 of the Crimes Act 1958 (removal of articles from places open to the public), if the amount or value of the article alleged to have been removed does not in the judgment of the court exceed $100 000. 4.9 Offences under section 81 of the Crimes Act 1958 (obtaining property by deception), if the amount or value of the property alleged to have been obtained does not in the judgment of the court exceed $100 000. 4.10 Offences under section 82 of the Crimes Act 1958 (obtaining financial advantage by deception), if the amount or value of the financial advantage alleged to have been obtained does not in the judgment of the court exceed $100 000. 4.11 Offences under section 83 of the Crimes Act 1958 (false accounting), if the amount or value of the alleged gain or loss does not in the judgment of the court exceed $100 000. 4.12 Offences under section 86 of the Crimes Act 1958 (suppression, etc. of documents), if the amount or value of the alleged gain or loss does not in the judgment of the court exceed $100 000. 4.13 Offences under section 88 of the Crimes Act 1958 (handling stolen goods), if— (a) the stolen goods alleged to have been handled are a motor vehicle; or (b) in any other case, the amount or value of the stolen goods alleged to have been handled does not in the judgment of the court exceed $100 000. s. 56 -- 73 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 62 4.14 Offences under section 176 of the Crimes Act 1958 (receipt or solicitation of secret commission by agent), if the amount or value of the valuable consideration received, solicited, given or offered does not in the judgment of the court exceed $100 000. 4.15 Offences under section 178 of the Crimes Act 1958 (giving or receiving false or misleading receipt or account), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000. 4.16 Offences under section 179 of the Crimes Act 1958 (gift or receipt of secret commission in return for advice given), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000. 4.17 Offences under section 180 of the Crimes Act 1958 (secret commission to trustee in return for substituted appointment), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000. 4.18 Offences under section 181 of the Crimes Act 1958 (aiding and abetting offences within or outside Victoria), if the amount or value of the valuable consideration received or given does not in the judgment of the court exceed $100 000. 4.19 Offences under section 191 of the Crimes Act 1958 (fraudulently inducing persons to invest money). s. 56 -- 74 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 63 4.20 Offences under section 194(1) or (2) of the Crimes Act 1958 (dealing with proceeds of crime), if— (a) the property alleged to have been dealt with is a motor vehicle; or (b) in any other case, the amount or value of the proceeds of crime alleged to have been dealt with does not in the judgment of the court exceed $100 000. 4.21 Offences under section 195A(1) of the Crimes Act 1958 (dealing with property which subsequently becomes an instrument of crime), if the amount or value of the property alleged to have been dealt with does not in the judgment of the court exceed $100 000. 4.22 Offences under section 197(1) or (3) of the Crimes Act 1958 (destroying or damaging property) (including offences charged as arson), if the amount or value of the property alleged to be destroyed or damaged does not in the judgment of the court exceed $100 000. 4.23 Offences under section 198 of the Crimes Act 1958 (threats to destroy or damage property), if the amount or value of the property alleged to be threatened to be destroyed or damaged does not in the judgment of the court exceed $100 000. 4.24 Offences under section 199 of the Crimes Act 1958 (possessing anything with intent to destroy or damage property), if the amount or value of the property alleged to be intended to be destroyed or damaged does not in the judgment of the court exceed $100 000. s. 56 -- 75 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 64 4.25 Offences under section 247B of the Crimes Act 1958 (computer offences), if the maximum penalty does not exceed level 5 imprisonment. 4.26 Offences under section 314 of the Crimes Act 1958 (perjury). 4.27 Offences under section 321G of the Crimes Act 1958 (incitement) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies. 4.28 Offences under section 321M of the Crimes Act 1958 (attempt) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies. 4.29 Offences under section 325 of the Crimes Act 1958 (accessories) which are alleged to have been committed in relation to a serious indictable offence (within the meaning of that section) to which section 28(1) of this Act applies. 4.30 Offences under section 326(1) of the Crimes Act 1958 (concealing offences for benefit) which are alleged to have been committed in relation to a serious indictable offence (within the meaning of that section) to which section 28(1) of this Act applies. 5 Dangerous Goods Act 1985 5.1 Indictable offences under the Dangerous Goods Act 1985. s. 56 -- 76 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 65 6 Drugs, Poisons and Controlled Substances Act 1981 6.1 Indictable offences under the Drugs, Poisons and Controlled Substances Act 1981, except for offences against sections 71, 71AA, 72 and 72A and offences against the following provisions as in force before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001— (a) section 71(1) where the alleged offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence; (b) section 72(1) where the alleged offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant. 7 Electricity Industry Act 2000 7.1 Offences under section 93A(1) or (2) of the Electricity Industry Act 2000. 7.2 Offences by a body corporate under section 97(7) of the Electricity Industry Act 2000. 7.3 Offences under section 97(11) of the Electricity Industry Act 2000. 8 Electricity Safety Act 1998 8.1 Offences under section 141A of the Electricity Safety Act 1998, but the maximum penalty that the court may impose on a body corporate is 10 000 penalty units. s. 56 -- 77 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 66 9 Environment Protection Act 1970 9.1 Indictable offences under the Environment Protection Act 1970, but if there are 2 or more accused, one of whom is a natural person charged under section 66B of that Act and one of whom is a body corporate, and the charges must be heard together, the maximum fine that the court may impose on the natural person in respect of a single offence is 2500 penalty units. Note See section 56 as to when charges must be heard together. 10 Equipment (Public Safety) Act 1994 10.1 Indictable offences under the Equipment (Public Safety) Act 1994. 11 Firearms Act 1996 11.1 Offences under section 5(1A) of the Firearms Act 1996 (offence for prohibited person to possess, carry or use unregistered firearm). 11.2 Offences under section 7B(2) of the Firearms Act 1996 (offence to possess, carry or use an unregistered category E handgun). 12 Food Act 1984 12.1 Indictable offences under the Food Act 1984. 13 Gas Industry Act 2001 13.1 Offences under section 149A(1) or (2) of the Gas Industry Act 2001. 13.2 Offences by a body corporate under section 208(5) of the Gas Industry Act 2001. s. 56 -- 78 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 67 13.3 Offences under section 210(1) of the Gas Industry Act 2001. 14 Gas Safety Act 1997 14.1 Offences under section 107 of the Gas Safety Act 1997, but the maximum penalty that the court may impose on a body corporate is 10 000 penalty units. 15 Health Records Act 2001 15.1 Indictable offences under the Health Records Act 2001. 16 Heritage Act 1995 16.1 Indictable offences under the Heritage Act 1995. 17 Information Privacy Act 2000 17.1 Indictable offences under the Information Privacy Act 2000. 18 Juries Act 2000 18.1 Indictable offences under the Juries Act 2000. 19 Major Sporting Events Act 2009 19.1 Indictable offences under the Major Sporting Events Act 2009. 20 Occupational Health and Safety Act 2004 20.1 Indictable offences under the Occupational Health and Safety Act 2004. 21 Police Regulation Act 1958 21.1 Offences under section 127A(1AB) of the Police Regulation Act 1958. s. 56 -- 79 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 68 22 Pollution of Waters by Oil and Noxious Substances Act 1986 22.1 Indictable offences under the Pollution of Waters by Oil and Noxious Substances Act 1986, but subject to section 24C of that Act. 23 Prohibition of Human Cloning for Reproduction Act 2008 23.1 Indictable offences under the Prohibition of Human Cloning for Reproduction Act 2008. 24 Prostitution Control Act 1994 24.1 Offences under section 6(1) of the Prostitution Control Act 1994 (obtaining payment for sexual services provided by a child). 24.2 Offences under section 7(1) of the Prostitution Control Act 1994 (agreement for provision of sexual services by a child). 25 Rail Safety Act 2006 25.1 Indictable offences under the Rail Safety Act 2006. 26 Research Involving Human Embryos Act 2008 26.1 Indictable offences under the Research Involving Human Embryos Act 2008. 27 Road Management Act 2004 27.1 Indictable offences under the Road Management Act 2004. 28 Tobacco Act 1987 28.1 Indictable offences under the Tobacco Act 1987. s. 56 -- 80 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 69 29 Transport Act 1983 29.1 Indictable offences under the Transport Act 1983. 30 Water Act 1989 30.1 Indictable offences under the Water Act 1989. 31 Water Industry Act 1994 31.1 Indictable offences under the Water Industry Act 1994. __________________". 57 Amendment of Schedule 3 In Schedule 3 to the Criminal Procedure Act 2009— (a) in item 6— (i) after "Investigator in" insert ", or a member of,"; (ii) after "Workplace Relations" insert "of the Commonwealth"; (b) in item 7— (i) for "Inspector General Group" substitute "Inspector General Division"; (ii) after "Defence" insert "of the Commonwealth"; (c) in item 12, after "Forestry" insert "of the Commonwealth"; (d) in item 13, after "Ageing" insert "of the Commonwealth"; (e) in item 14— (i) for "section 390" substitute "Part 6.9"; s. 57 -- 81 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 70 (ii) for "Petroleum Act" substitute "Petroleum and Greenhouse Gas Storage Act"; (f) in item 16— (i) for "Officer, or" substitute "Officer or"; (ii) for "the Health Insurance Commission" substitute "Medicare Australia"; (g) in item 18, after "Trade" insert "of the Commonwealth"; (h) for item 21 substitute— "21 A person authorised by or under section 241 of the Building Act 1993."; (i) for item 26 substitute— "26 An officer at Australian Public Service level 5 or higher who is an investigator in the Department of Immigration and Citizenship of the Commonwealth.". 58 New Schedule 4 inserted After Schedule 3 to the Criminal Procedure Act 2009 insert— "__________________ SCHEDULE 4 Section 439 SAVINGS AND TRANSITIONAL PROVISIONS 1 Definitions In this Schedule— commencement day means the day on which this Act (other than Chapter 1 and section 437) comes into operation; s. 58 -- 82 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 71 superseded provision means a provision of an Act that has been amended or repealed by this Act or the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. 2 General transitional provision (1) Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984. (2) If a superseded provision of an Act continues to apply by force of this Schedule, the following provisions also continue to apply in relation to that provision— (a) any other provisions of that Act necessary to give effect to that continued provision; and (b) any regulations or rules of court made under that Act for the purposes of that continued provision. (3) This Schedule applies despite anything to the contrary in any other provision of this Act. 3 Renumbering On and from the commencement day, unless the context otherwise requires, in an Act or in an instrument made under an Act or in any other document of any kind, a reference to a provision of this Act that has been renumbered or relocated must be construed as a reference to the provision as renumbered or relocated and in force for the time being. s. 58 -- 83 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 72 4 References to superseded provisions A reference to a superseded provision in any Act (other than this Act or the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009) or in any rule, regulation, order, agreement, instrument, deed or other document of any kind must, so far as it relates to any period on or after the commencement day and if not inconsistent with the context or subject matter, be construed as a reference to the relevant provision of this Act. 5 Commencing a criminal proceeding (1) Chapter 2 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed. Note Section 5 sets out how a criminal proceeding is commenced. (2) Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended. 6 Summary procedure (1) Chapter 3 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed. Note Section 5 sets out how a criminal proceeding is commenced. s. 58 -- 84 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 73 (2) Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended. 7 Committal proceeding (1) Chapter 4 applies to a criminal proceeding commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed. Note Section 5 sets out how a criminal proceeding is commenced. (2) Subject to this Schedule, Part 4 of the Magistrates' Court Act 1989 as in force immediately before the commencement day continues to apply to a criminal proceeding commenced in the Magistrates' Court before the commencement day as if that Part had not been amended. (3) Section 145 applies to an accused committed for trial on or after the commencement day. 8 Trial (1) On and from the commencement day, Chapter 5 applies to a criminal proceeding in which— (a) the accused is committed for trial; or (b) a direct indictment is filed against the accused— on or after the commencement day. s. 58 -- 85 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 74 (2) If an accused is committed for trial on or after the commencement day in a criminal proceeding that was commenced before the commencement day, the criminal proceeding is taken to be a criminal proceeding commenced under Chapter 2. (3) On and from the commencement day— (a) section 168 applies to a criminal proceeding in which the accused was committed for trial before the commencement day; (b) sections 216 and 241 apply to an accused committed for trial or against whom a presentment was filed before the commencement day, as if the presentment were an indictment filed under this Act; (4) Subject to this clause— (a) the Crimes Act 1958; and (b) the Crimes (Criminal Trials) Act 1999; and (c) the Public Prosecutions Act 1994— as in force immediately before the commencement day continue to apply to an accused who, before the commencement day— (d) was committed for trial; or (e) was given a notice of trial or a notice of intention to prefer a presentment. 9 New trial or further hearing (1) Subject to subclause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or s. 58 -- 86 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 75 further hearing, irrespective of when the first trial or hearing was conducted. (2) Subclause (1) does not apply to a new trial or further hearing that is ordered under Division 4 or 5 of Part 6.3 in a proceeding that commenced before the commencement day. 10 Appeals (1) Part 6.1 applies to an appeal in relation to a sentence imposed by the Magistrates' Court on or after the commencement day. (2) Section 567A(1A) of the Crimes Act 1958 as in force immediately before the commencement day continues to apply to a sentence passed before the commencement day. (3) Part 6.2 applies to an appeal from a final order of the Magistrates' Court made on or after the commencement day. (4) Divisions 1, 2 and 3 of Part 6.3 apply to an appeal where the sentence is imposed on or after the commencement day. (5) Division 4 of Part 6.3 applies to an interlocutory decision made in a proceeding on or after the commencement day, irrespective of when the proceeding commenced. (6) Division 5 of Part 6.3 (other than section 308) applies to a question of law that arises in a proceeding on or after the commencement day, irrespective of when the proceeding commenced. s. 58 -- 87 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 76 (7) Section 308 applies to an acquittal recorded on or after the commencement day, irrespective of when the proceeding commenced. (8) On and from the commencement day, a finding of guilt or a conviction, decision or determination in a criminal proceeding that has been quashed before the commencement day is taken to have been set aside. 11 Petitions for mercy (1) Chapter 7 applies to a petition for mercy made on or after the commencement day, irrespective of when the proceeding commenced in relation to which the petition is made. (2) If a petition for mercy relates to a criminal proceeding in which presentment was made under section 353 of the Crimes Act 1958 as in force before its repeal, Chapter 7 applies as if a reference to indictment were a reference to presentment. 12 Witnesses (1) Part 8.2 applies to a hearing in a criminal proceeding if the hearing commences on or after the commencement day. (2) Sections 37A, 37B, 37C, 37CAA, 37CA, 37D and 37E and Division 3AA of Part II of the Evidence Act 1958 as in force immediately before the commencement day continue to apply to a hearing in a criminal proceeding if the hearing commenced before the commencement day and— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day. s. 58 -- 88 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 77 (3) If an application for leave under Rule (2) in section 37A(1) of the Evidence Act 1958 has been given to the DPP but not determined before the commencement day, on and from the commencement day the application is taken to have been filed and served under section 344 of this Act. (4) If a transcript of a recording of the evidence- in-chief of a witness for the prosecution has been served under section 37B(3)(a) of the Evidence Act 1958 before the commencement day, on and from the commencement day the transcript is taken to have been served under section 368 of this Act. (5) If a special hearing is held under section 41G of the Evidence Act 1958 before the commencement day and the evidence is presented at trial on or after that day, on and from the commencement day the special hearing is taken to have been conducted under Division 6 of Part 8.2 of this Act. (6) If, before the commencement day— (a) an accused has been committed for trial in respect of a charge for an offence under Subdivision (8EAA) of Division 1 of Part I of the Crimes Act 1958; or (b) an accused has been presented for trial on such a charge without the holding of a committal proceeding— section 371 of this Act does not apply to the holding of a special hearing in relation to the charge on or after the commencement day. s. 58 -- 89 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 78 13 Costs (1) On and from the commencement day, Part 8.4 applies to a proceeding to which this Act applies. (2) For the purposes of subclause (1), if a proceeding was commenced but not determined before the commencement day, the whole of the proceeding is taken to be a proceeding to which this Act applies. 14 Power to amend when there is a defect or error On and from the commencement day, section 412 applies to any summons, warrant, plea, judgment or order, irrespective of when the summons, warrant, plea, judgment or order was issued or made. 15 Transfer of charge to court with jurisdiction On and from the commencement day, section 413 applies to a charge before a court, irrespective of when the charge was filed. 16 Perjury (1) Section 414 applies to an offence alleged to have been committed on or after the commencement day. (2) On and from the commencement day, section 415 applies to a direction that a person be tried for perjury, irrespective of when the alleged perjury was committed. s. 58 -- 90 of 268 -- Part 2—Amendment of Criminal Procedure Act 2009 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 79 17 Transitional regulations The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.". __________________ s. 58 -- 91 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 80 PART 3—AMENDMENT OF CHILDREN, YOUTH AND FAMILIES ACT 2005 59 Definitions In section 3(1) of the Children, Youth and Families Act 2005— (a) in the definition of accountable undertaking, for "a sentencing order" substitute "an order"; (b) in the definition of child, in paragraph (ab), after "18" insert "years"; (c) for the definition of sentencing order substitute— "sentence includes— (a) the recording of a conviction; and (b) an order made under Part 5.3, other than— (i) an order incidental to or preparatory to the making of the order; or (ii) an order granting bail made under section 420; and (c) an order made under section 11 of the Sex Offenders Registration Act 2004; and (d) an order made under section 84S or 84T of the Road Safety Act 1986;"; (d) insert the following definitions— "appeal, in Part 5.4, includes application for leave to appeal; s. 59 See: Act No. 96/2005. Reprint No. 2 as at 19 August 2009 and amending Act Nos 51/2006, 77/2008, 4/2009, 7/2009, 22/2009, 26/2009, 46/2009 and 50/2009. LawToday: www. legislation. vic.gov.au -- 92 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 81 appeal period, in Part 5.4, means the period permitted by or under this Act or any other Act for commencing an appeal under Part 5.4 or, if a notice of appeal or notice of application for leave to appeal under Part 5.4 is filed within that period, the determination of the appeal; appellant, in Part 5.4, includes an applicant for leave to appeal; appellate court, in Part 5.4, means the County Court or the Trial Division of the Supreme Court, as the case requires; conviction, in Part 5.4, includes a finding of guilt by the Court, whether or not a conviction is recorded; President means the President appointed under section 508 and includes the Acting President appointed under section 509;". 60 Procedure on appeals to County Court or Supreme Court (1) For section 328(6) and (7) of the Children, Youth and Families Act 2005 substitute— "(6) The following sections— (a) section 425 (except subsection (3)(a)) (How appeal is commenced); (b) section 426 (1), (2), (4) and (5) (Determination of appeal); (c) section 430 (Late notice of appeal deemed to be application for leave to appeal); (d) section 430C (except subsections (3) and (4)) (Abandonment of appeal); s. 60 -- 93 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 82 (e) section 430D (Appellant's failure to appear); (f) section 430E (Respondent's failure to appear on appeal by DPP); (g) section 430F (One notice of appeal for 2 or more sentences); (h) section 430G (Appeal to County Court or Trial Division of Supreme Court authorised by other Acts); (i) section 430ZD (Appeals to be heard in open court); (j) section 430ZE (Legal representation); (k) section 430ZF (Interpreters); (l) section 430ZG (Explanation of and reasons for orders); (m) section 430ZH (No costs on appeal or new hearing)— apply, with any necessary modifications, to an appeal under this section as if— (n) a reference to an appeal under section 424 were a reference to an appeal under this section; (o) a reference to the sentence were a reference to the order or dismissal that is the subject of the appeal; (p) a reference to the DPP were a reference to the Secretary or the Attorney- General (as the case requires); (q) a reference to the Criminal Division were a reference to the Family Division.". s. 60 -- 94 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 83 (2) In section 328(9) of the Children, Youth and Families Act 2005, for "clause 2(1) of Schedule 6 to the Magistrates' Court Act 1989" substitute "section 425(4)". (3) In section 328(10) of the Children, Youth and Families Act 2005— (a) omit "524, 526, 527,"; and (b) omit paragraph (c). 61 DPP reference For section 340(c) of the Children, Youth and Families Act 2005 substitute— "(c) the DPP; and". 62 Children to be proceeded against by summons (1) In section 345(1) of the Children, Youth and Families Act 2005, for "charge" substitute "charge-sheet". (2) In section 345(2) of the Children, Youth and Families Act 2005, for "section 28 of the Magistrates' Court Act 1989" substitute "section 12 of the Criminal Procedure Act 2009". 63 Child to be brought before Court or bail justice In section 346(10) of the Children, Youth and Families Act 2005, for "charge" substitute "hearing of the charge". 64 Referral to Secretary In section 349(1)(a) and (2)(a) of the Children, Youth and Families Act 2005, for "a defendant" substitute "an accused". s. 61 -- 95 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 84 65 Adjournment of criminal proceeding when therapeutic treatment order made In section 352 of the Children, Youth and Families Act 2005, for "a defendant" substitute "an accused". 66 Division heading amended In the heading to Division 3 of Part 5.2 of Chapter 5 of the Children, Youth and Families Act 2005, for "triable summarily" substitute "that may be heard and determined summarily". 67 Section heading amended In the heading to section 356 of the Children, Youth and Families Act 2005, for "triable summarily" substitute "that may be heard and determined summarily". 68 Part 5.3 amended (1) In the Children, Youth and Families Act 2005— (a) for the heading to Part 5.3 of Chapter 5 substitute— "PART 5.3—SENTENCES"; (b) for the heading to section 360 substitute— "Sentences"; (c) in section 360(3) and (4), for "sentencing order" substitute "sentence"; (d) for section 381(4)(g) substitute— "(g) if a pre-sentence report includes a statement from the Secretary that the person has an intellectual disability within the meaning of the Disability Act 2006, that the person participate in s. 65 -- 96 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 85 disability services available under that Act as directed by the Secretary; or"; (e) in section 384(5)(f) and (g), for "sentencing order" substitute "sentence"; (f) in section 385(1)(c) and (2)(b), for "sentencing order" substitute "sentence"; (g) in section 393(f) and (g), for "sentencing order" substitute "sentence"; (h) in section 394(2)(c) and (3)(b), for "sentencing order" substitute "sentence"; (i) in section 408(2)(c) and (d), for "sentencing order" substitute "sentence"; (j) in section 409(5)(f), for "sentencing order" substitute "sentence"; (k) in section 409(8), for "accused person" substitute "accused"; (l) in section 419, for "sentencing orders" substitute "sentences"; (m) in section 420(1)— (i) for "sentencing order" (wherever occurring) substitute "sentence"; (ii) for "accused person" substitute "accused"; (n) in section 421(8), for "accused person" substitute "accused"; (o) in the heading to section 423, for "sentencing order" substitute "sentence"; (p) in section 423(1), for "sentencing order" substitute "sentence"; s. 68 -- 97 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 86 (q) in section 423(2)— (i) for "a sentencing order" substitute "a sentence"; (ii) for "the sentencing order was made" substitute "the sentence was imposed"; (r) in section 423(3)— (i) for "a sentencing order" substitute "a sentence"; (ii) for "the sentencing order was made" substitute "the sentence was imposed"; (iii) for "made the sentencing order" substitute "imposed the sentence"; (s) in section 423(4)— (i) for "a sentencing order" substitute "a sentence"; (ii) for "made the sentencing order" substitute "imposed the sentence"; (t) in section 423(5)(e), for "sentencing orders" substitute "sentences"; (u) in section 423(6), for "sentencing order was made" substitute "sentence was imposed"; (v) in section 423(7)— (i) for "made the sentencing order" substitute "imposed the sentence"; (ii) in paragraph (c), for "or in accordance with section 49 of the Magistrates' Court Act 1989" substitute "or deal with the person in accordance with section 333 of the Criminal Procedure Act 2009"; s. 68 -- 98 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 87 (w) in section 423(8)(a), for "sentencing order was made" substitute "sentence was imposed". (2) For section 423(9) of the Children, Youth and Families Act 2005 substitute— "(9) This section applies despite section 426(5).". 69 Substitution of Part 5.4 For Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 substitute— "PART 5.4—APPEALS Division 1—Appeal by offender to the County Court or Trial Division of the Supreme Court 424 Right of appeal A person convicted of an offence by the Children's Court in a summary proceeding in the Criminal Division may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against— (a) the conviction and sentence imposed by the Children's Court; or (b) sentence alone. Note See the definitions of conviction and sentence in section 3. 425 How appeal is commenced (1) An appeal under section 424 is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed. s. 69 -- 99 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 88 (2) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed. (3) A notice of appeal must— (a) state whether the appeal is against conviction and sentence, or sentence alone; and (b) be in the form prescribed by the rules of the appellate court. (4) A notice of appeal must include an undertaking signed by the appellant in the manner prescribed by the rules of the appellate court— (a) to appear at the appellate court to proceed with the appeal at a place and on a day fixed or to be fixed by the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) and to appear at the appellate court for the duration of the appeal; and (b) to give written notice without delay to the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) of any change of address of the appellant from that appearing in the notice of appeal. (5) A notice of appeal filed under this section must be transmitted to the appellate court. s. 69 -- 100 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 89 426 Determination of appeal (1) An appeal under section 424 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Children's Court. (2) On the hearing of an appeal under section 424, the appellate court— (a) must set aside the sentence of the Children's Court; and (b) subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and (c) may exercise any power which the Children's Court exercised or could have exercised. (3) On the hearing of an appeal under 424 (other than an appeal referred to in subsection (6) of this section), the appellate court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Children's Court. (4) The appellate court may backdate a sentence imposed under subsection (2) to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal. (5) A sentence imposed under subsection (2) is for all purposes to be regarded as a sentence of the appellate court. s. 69 -- 101 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 90 (6) If an appellant appeals against an order made under section 363, 365 or 367, the appellate court may— (a) dismiss the charge against the appellant; or (b) make an order in the same terms as the order of the Children's Court— but must not impose any other sentence. Note Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively. (7) On the hearing of an appeal referred to in subsection (8), if the appellate court finds the appellant guilty of 2 or more of the offences in respect of which the appellant was sentenced, the appellate court may order— (a) that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or (b) that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence. (8) Subsection (7) applies to an appeal under section 424 against— (a) a sentence which orders the appellant to be detained in a youth residential centre or a youth justice centre in respect of s. 69 -- 102 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 91 2 or more offences for a specified aggregate period; or (b) a conviction in respect of which a sentence referred to in paragraph (a) was imposed. (9) On an appeal under this section, the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or above the age of 19 years but under 21 years. Division 2—Appeal by DPP against sentence 427 DPP's right of appeal against sentence (1) The DPP may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against a sentence imposed by the Children's Court in a summary proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest. (2) The DPP must not bring a further appeal against a sentence imposed by the appellate court. 428 How appeal is commenced (1) An appeal under section 427 is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed. s. 69 -- 103 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 92 (2) A copy of the notice of appeal must be served on the respondent in accordance with section 593(1) within 7 days after the day on which the notice is filed. (3) A notice of appeal must— (a) state the general grounds of appeal; and (b) be in the form prescribed by the rules of the appellate court. (4) The DPP must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the criminal proceeding to which the appeal relates, if that legal practitioner can reasonably be identified. (5) A notice of appeal filed under this section must be transmitted to the appellate court. 429 Determination of DPP appeal (1) An appeal under section 427 must be conducted as a rehearing and the respondent is not bound by the plea entered in the Children's Court. (2) On the hearing of an appeal under section 427, the appellate court— (a) must set aside the sentence of the Children's Court; and (b) subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and (c) may exercise any power which the Children's Court exercised or could have exercised. s. 69 -- 104 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 93 (3) If the DPP appeals against an order made under section 363, 365 or 367, the appellate court may— (a) dismiss the charge against the appellant; or (b) make an order in the same terms as the order of the Children's Court— but must not impose any other sentence. Note Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively. (4) On the hearing of an appeal referred to in subsection (5), if the appellate court finds the respondent guilty of 2 or more of the offences in respect of which the respondent was sentenced, the appellate court may order— (a) that the respondent be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or (b) that the respondent be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence. (5) Subsection (4) applies to an appeal under section 427 against a sentence which orders the respondent to be detained in a youth residential centre or a youth justice centre in s. 69 -- 105 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 94 respect of 2 or more offences for a specified aggregate period. (6) In imposing a sentence under subsection (2), (3) or (4), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate. (7) The appellate court may backdate a sentence imposed under subsection (2), (3) or (4) to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal. (8) A sentence imposed under subsection (2), (3) or (4) is for all purposes to be regarded as a sentence of the appellate court. (9) Despite anything to the contrary in this Act, on an appeal under section 427, the appellate court may make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or over the age of 19 years but under 21 years. Division 3—Procedure on appeals from Children's Court 430 Late notice of appeal deemed to be application for leave to appeal (1) A notice of appeal filed after the end of the period referred to in section 425(1) or 428 is deemed to be an application for leave to appeal on the grounds stated in the notice. (2) The appellate court may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if— s. 69 -- 106 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 95 (a) the court considers that the failure to file a notice of appeal within the period referred to in section 425(1) or 428 was due to exceptional circumstances; and (b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay. 430A Stay of order (1) If an appellant appeals against sentence and is not in custody because of that sentence, the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when the appellant files the notice of appeal and signs the undertaking referred to in section 425(4). (2) If an appellant appeals against sentence and is in custody because of that sentence, the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) the appellant files the notice of appeal and signs the undertaking referred to in section 425(4); and (b) the appellant enters bail, if bail is granted under section 430B. (3) This section is subject to section 29 of the Road Safety Act 1986. 430B Bail pending appeal (1) If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant— (a) may apply to the Children's Court to be released on bail; and s. 69 -- 107 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 96 (b) if he or she makes an application under paragraph (a), must give reasonable notice of the application to the respondent to the appeal. (2) If an application is made under subsection (1), Division 1 of Part 5.2 applies as if the appellant were a child taken into custody. 430C Abandonment of appeal (1) Subject to subsections (3) and (4), an appeal to the County Court or the Trial Division of the Supreme Court may be abandoned by filing a notice of abandonment of appeal with the registrar of the County Court or the prothonotary of the Supreme Court, as the case requires. (2) A notice of abandonment of appeal must be in the form prescribed by the rules of the appellate court. (3) If an appellant appeals against both conviction and sentence but does not pursue the appeal against conviction, the appellant must give written notice to the appellate court and the respondent that the appeal against conviction is abandoned. (4) An appellant who has been sentenced to a term of detention in a youth residential centre or a youth justice centre but is not in custody may abandon the appeal by— (a) surrendering to the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires); and (b) immediately filing a notice of abandonment of appeal in accordance with subsections (1) and (2). s. 69 -- 108 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 97 (5) If a person surrenders to the registrar of the County Court or the prothonotary of the Supreme Court in accordance with subsection (4), the registrar or the prothonotary (as the case requires) may issue a warrant to detain the person in a youth residential centre or a youth justice centre (as the case requires). (6) If an appellant abandons an appeal, the appellate court must strike out the appeal. (7) If an appeal is struck out under subsection (6)— (a) the sentence of the Children's Court is reinstated and may be enforced as if an appeal had not been made but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and (b) the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and (c) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal. 430D Appellant's failure to appear (1) If an appellant (other than the DPP) fails to appear at the time listed for the hearing of the appeal, the appellate court may— (a) strike out the appeal; or (b) adjourn the proceeding on any terms that it considers appropriate. s. 69 -- 109 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 98 (2) If an appeal is struck out under subsection (1)(a)— (a) the sentence of the Children's Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and (b) the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and (c) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal. (3) The appellate court, at any time, may set aside an order striking out an appeal because of the failure of the appellant to appear, if the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant. (4) An application under subsection (3) to set aside an order may be made at any time on notice in writing to the respondent served a reasonable time before the making of the application. (5) Notice under subsection (4) must be served in the same way as a notice of appeal. s. 69 -- 110 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 99 (6) If the appellate court grants an application under subsection (3), the court— (a) must order the reinstatement of the appeal subject to the payment of any costs that the court considers appropriate; and (b) may require the appellant to give a further undertaking to proceed with the appeal. (7) On the reinstatement of an appeal under subsection (6), the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when— (a) if required, the appellant signs the undertaking referred to in section 425(4); and (b) if the appellant is in custody because of the sentence appealed against and bail is granted under section 430B, the appellant enters bail. (8) Subsection (7) is subject to section 29 of the Road Safety Act 1986. 430E Respondent's failure to appear on appeal by DPP (1) If a respondent to an appeal under section 427 by the DPP fails to appear at the time listed for the hearing of the appeal, the appellate court— (a) may adjourn the proceeding on any terms that it considers appropriate; or s. 69 -- 111 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 100 (b) if satisfied that notice of the appeal has been given in accordance with section 428, may hear and determine the appeal in the absence of the respondent. Note The appellate court cannot impose a sentence that requires the consent of the respondent, for example a youth supervision order, in the absence of the respondent. (2) If the appellate court adjourns the proceeding and is satisfied that notice of the appeal has been given in accordance with section 428, the court may issue a warrant to arrest the respondent and to bring the respondent before the judge who issued the warrant or any other judge of the court. 430F One notice of appeal for 2 or more sentences If 2 or more sentences are imposed in respect of charges that have been heard together, the appellant may give one notice of appeal for all or any of those sentences. 430G Appeal to County Court or Trial Division of Supreme Court authorised by other Acts If a person is authorised by or under any other Act to appeal from an order of the Children's Court to the County Court or the Trial Division of the Supreme Court, subject to that Act, the provisions of this Act with respect to appeals to those courts apply. s. 69 -- 112 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 101 Division 4—Reports 430H Application of Division This Division applies to an appeal under Division 1 or 2. Subdivision 1—Pre-sentence reports 430I Court may order pre-sentence report (1) If the appellate court finds a person guilty of an offence it may, before passing sentence, order the Secretary or the Secretary to the Department of Justice to submit a pre- sentence report in respect of the person and adjourn the proceeding to enable the report to be prepared. (2) The appellate court must order a pre- sentence report if it is considering making a youth residential centre order or a youth justice centre order. (3) If it appears to the appellate court that a person found guilty of an offence is intellectually disabled, the appellate court must, before passing sentence, order a pre- sentence report in respect of the person and adjourn the proceeding to enable the report to be prepared. (4) If the Secretary has issued a statement in respect of the person that the person has an intellectual disability within the meaning of the Disability Act 2006, a pre-sentence report prepared in accordance with an order under subsection (3) must— s. 69 -- 113 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 102 (a) include a copy of the statement; and (b) specify disability services which are— (i) available under that Act and appropriate for the person; and (ii) designed to reduce the likelihood of the person committing further offences. (5) Sections 549 and 552 apply to pre-sentence reports under this Subdivision as if— (a) a reference to a report to which Part 7.8 applies were a reference to a pre- sentence report under this Subdivision; and (b) a reference to the child were a reference to the person; and (c) a reference to the consent of the child's parent were omitted if the person is no longer a child at the time of the appeal. Note Section 549 requires a warning to be given to persons being interviewed in the course of the preparation of the report. Section 552 concerns the confidentiality of reports. (6) Sections 573 and 575 apply to pre-sentence reports under this Division as if— (a) a reference to the Court were a reference to the appellate court; and (b) a reference to the child were a reference to the person; and s. 69 -- 114 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 103 (c) the reference in section 575(1) to section 574 were a reference to section 430K. Note Section 573 specifies the contents of a pre-sentence report. Section 575 concerns access to a pre-sentence report. 430J Notification of requirement to submit pre-sentence report If the appellate court orders the Secretary or the Secretary to the Department of Justice to submit a pre-sentence report under section 430I, the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must, within one working day after the making of the order— (a) orally notify him or her of the making of the order; and (b) forward a copy of the order to him or her. 430K Pre-sentence report to be filed with court A pre-sentence report ordered under section 430I must be filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) at least 4 working days before the return date and in any event not later than 21 days after the report was ordered by the appellate court. 430L Attendance at appellate court of author of pre-sentence report (1) The author of a pre-sentence report under this Subdivision may be required to attend to give evidence at the hearing of the appeal to which the report is relevant by a notice given in accordance with subsection (2) by— s. 69 -- 115 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 104 (a) the person in respect of whom the report has been prepared; or (b) if the person is a child, a parent of that child; or (c) the Secretary; or (d) the appellate court. (2) A notice under subsection (1) must be— (a) in writing; and (b) filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) as soon as possible and, if practicable, not later than 2 working days before the hearing. (3) On the filing of a notice under subsection (1), the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must immediately notify the author of the report that his or her attendance is required on the return date. (4) A person is guilty of contempt of court if, being the author of a report who has been required to attend the appellate court under subsection (1), he or she fails, without sufficient excuse, to attend as required. (5) The author of a report who has been required under subsection (1) by the person or, if the person is a child, a parent of the child or the Secretary to attend at the hearing of an appeal must, if required by the person or the parent or the Secretary (as the case requires), be called as a witness and may be cross- examined on the contents of the report. s. 69 -- 116 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 105 430M Disputed pre-sentence report (1) If any matter in a pre-sentence report under this Subdivision is disputed by the person who is the subject of the report, the appellate court must not take the disputed matter into consideration when determining the appeal unless satisfied that the matter is true beyond reasonable doubt. (2) If— (a) a pre-sentence report under this Subdivision, or any part of a report, is disputed by the person who is the subject of the report; and (b) the author of the report does not attend the hearing of the appeal despite having been required to attend under section 430L(1)— the appellate court must not take the report or the part in dispute into consideration when determining the proceeding unless the person consents to the report or the part in dispute being admitted into evidence. Subdivision 2—Group conference reports 430N Group conference report (1) If the appellate court finds a person guilty of an offence and defers sentencing the person for the purposes of a group conference, it must order a group conference report. (2) A group conference report must be prepared by the convenor of the group conference. (3) Sections 549 and 552 apply to group conference reports under this Subdivision as if— s. 69 -- 117 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 106 (a) a reference to a report to which Part 7.8 applies were a reference to a group conference report under this Subdivision; and (b) a reference to the child were a reference to the person; and (c) a reference to the consent of the child's parent were omitted if the person is no longer a child at the time of the appeal. Note Section 549 requires a warning to be given to persons being interviewed in the course of the preparation of the report. Section 552 concerns the confidentiality of reports. (4) Sections 578 and 580 apply to group conference reports under this Subdivision as if— (a) a reference to the child were a reference to the person; and (b) a reference to the Court were a reference to the appellate court; and (c) a reference to section 579 were a reference to section 430O. Note Section 578 specifies the content of a group conference report. Section 580 concerns access to a group conference report. 430O Group conference report to be filed with court A group conference report must be filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) at least 4 working days before the return date and in any event not later than the date fixed by the appellate court. s. 69 -- 118 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 107 Division 5—Appeal to Supreme Court on a question of law 430P Appeal to Supreme Court on a question of law (1) A party to a proceeding (other than a committal proceeding) in the Criminal Division of the Children's Court may appeal to the Supreme Court on a question of law, from a final order of the Children's Court in that proceeding. (2) If an informant who is a member of the police force wishes to appeal under subsection (1), the appeal may be brought only by the DPP on behalf of the informant. (3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made. (4) A copy of the notice of appeal must be served on the respondent in accordance with subsection (5) within 7 days after the day on which the notice of appeal was filed. (5) A copy of the notice of appeal must be served— (a) personally on a respondent who was the accused; or (b) on a respondent who was the informant in accordance with section 392 of the Criminal Procedure Act 2009. (6) An appeal under subsection (1) does not operate as a stay of any order made by the Children's Court unless the Supreme Court otherwise orders. s. 69 -- 119 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 108 (7) An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1). (8) The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court— (a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and (b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay. (9) After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Children's Court with or without any direction in law. (10) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Children's Court, may be enforced as an order of the Supreme Court. (11) The Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate. 430Q Appeal on question of law precludes other appeals If a person appeals under this Division to the Supreme Court on a question of law, that person abandons finally and conclusively any right under this or any other Act to appeal to the County Court or the Trial s. 69 -- 120 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 109 Division of the Supreme Court in relation to that proceeding. Division 6—Appeal to Court of Appeal and referral of point of law to Court of Appeal 430R Right of appeal against sentence of detention imposed on appeal from Children's Court (1) In this section— detention means detention in a youth justice centre or youth residential centre. (2) A person sentenced to a term of detention by an appellate court under section 426 or 429 may appeal to the Court of Appeal against the sentence if— (a) in the proceeding that is the subject of the appeal, the Children's Court had not ordered that the person be detained; and (b) the Court of Appeal gives the person leave to appeal. 430S How appeal is commenced (1) An application for leave to appeal under section 430R is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the person is sentenced by the appellate court or any extension of that period granted under section 313 of the Criminal Procedure Act 2009. (2) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days s. 69 -- 121 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 110 after the day on which the notice of application is filed. 430T Determination of appeal (1) On an appeal under section 430R, the Court of Appeal must allow the appeal if the appellant satisfies the court that— (a) there is an error in the sentence imposed; and (b) a different sentence should be imposed. (2) In any other case, the Court of Appeal must dismiss an appeal under section 430R. (3) If the Court of Appeal is considering imposing a more severe sentence than the sentence imposed by the appellate court, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the appellate court. 430U Orders etc. on successful appeal (1) If the Court of Appeal allows an appeal under section 430R, it must set aside the sentence imposed by the appellate court and either— (a) impose the sentence, whether more or less severe, that it considers appropriate; or (b) remit the matter to the appellate court. (2) If the Court of Appeal remits a matter to the appellate court under subsection (1)(b)— (a) it may give directions concerning the manner and scope of the further hearing by the appellate court, including a direction as to whether the hearing is to s. 69 -- 122 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 111 be conducted by the same judge or a different judge; and (b) the appellate court, whether constituted by the same or a different judge, must hear and determine the matter in accordance with the directions, if any. (3) On the hearing of an appeal referred to in subsection (4), if the Court of Appeal finds the appellant guilty of 2 or more of the offences in respect of which the appellant was sentenced, the Court of Appeal may order— (a) that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or (b) that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence. (4) Subsection (3) applies to an appeal under section 430R against— (a) a sentence which orders the appellant to be detained in a youth residential centre or a youth justice centre in respect of 2 or more offences for a specified aggregate period; or (b) a conviction in respect of which a sentence referred to in paragraph (a) was imposed. s. 69 -- 123 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 112 (5) Despite anything to the contrary in this Act, on an appeal under section 430R, the Court of Appeal may make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or over the age of 19 years but under 21 years. Note Section 586 provides that the Supreme Court may exercise the sentencing powers of the Children's Court. 430V Powers and procedure Division 7 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009 applies as if a reference to that Part were a reference to this Division. 430W DPP may refer point of law to Court of Appeal (1) If a person is acquitted in respect of all or any charges on an appeal to the County Court or the Trial Division of the Supreme Court from the Children's Court, the DPP may refer to the Court of Appeal any point of law that has arisen in the proceeding. (2) The Court of Appeal is to consider a point of law referred to it under subsection (1) and give its opinion on it. (3) An acquitted person who appears in court in person or by a legal practitioner is entitled to reasonable costs as settled by the Costs Court. s. 69 -- 124 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 113 (4) A reference under this section does not affect the hearing in relation to which the reference is made or an acquittal in that hearing. Division 7—Status of sentence and orders during appeal period 430X Sentence not stayed during appeal period (1) A sentence is not stayed during the appeal period unless— (a) this Act or any other Act otherwise provides; or (b) an order is made under subsection (2). (2) If a notice of application for leave to appeal is filed under section 430S, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so. Note See the definitions of appeal period and sentence in section 3. 430Y Bail pending appeal (1) A person detained in a youth residential centre or youth justice centre who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail. (2) On an application under subsection (1), the Court of Appeal may grant the detained person bail pending the appeal. Note See section 323 of the Criminal Procedure Act 2009 for bail following appeal. s. 69 -- 125 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 114 430Z Stay of certain orders during appeal period (1) This section applies to an order under section 84, 85B or 86 of the Sentencing Act 1991 made by the Trial Division of the Supreme Court or the County Court. Note See section 83G(1) of the Sentencing Act 1991 in relation to superannuation orders. (2) Unless the Trial Division of the Supreme Court or the County Court otherwise directs, an order referred to in subsection (1) is stayed during the appeal period. (3) If an order is stayed under subsection (2) and the conviction is set aside on appeal, the order does not take effect unless the Court of appeal otherwise orders. (4) The Court of Appeal may set aside or vary an order made by the Trial Division of the Supreme Court or the County Court under subsection (2). (5) Rules of court may provide for securing the safe custody during the appeal period of any property the subject of an order referred to in subsection (1). 430ZA Execution of order for forfeiture or destruction of property (1) If a court orders the forfeiture or destruction of any property in relation to an offence, the property must not be forfeited or destroyed during the appeal period unless earlier forfeiture or destruction is permitted by any other law. (2) This section does not apply to orders made under the Confiscation Act 1997. s. 69 -- 126 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 115 (3) Rules of court may provide for securing the safe custody during the appeal period of any property the subject of an order referred to in subsection (1). Division 8—Miscellaneous 430ZB Appeal by child under 15 years If an appellant is a child under the age of 15 years, the appeal may be made on the child's behalf and in the name of the child by— (a) the child's parent; or (b) in the absence of the parent, the Secretary. 430ZC Parent may enter into bail (1) If the child is granted bail with or without a surety pending an appeal under this Part but it appears to the court granting bail that the child does not have the capacity or understanding to enter into bail, the child's parent or any other person may enter into bail as principal. (2) The bail entered into under subsection (1) must be— (a) in an amount determined by the court granting bail; and (b) on condition that the person produce the child at the court to which the appeal is made at a place and on a day to be fixed by the registrar of the County Court or as directed by the court to which the appeal is made (as the case requires). s. 69 -- 127 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 116 430ZD Appeals to be heard in open court (1) Proceedings on an appeal under this Part are, subject to subsection (2), to be conducted in open court. (2) The court hearing the appeal may order that— (a) the whole or any part of a proceeding be heard in closed court; or (b) only persons or classes of persons specified by it may be present during the whole or any part of a proceeding. (3) A court may make an order under subsection (2) on the application of a party or any other person who has a direct interest in the proceeding or on its own motion. (4) Any party to the proceeding and any other interested person has standing to support or oppose an application under subsection (3). (5) If an order has been made under this section, the court hearing the appeal must cause a copy of the order to be posted on a door of, or in another conspicuous place at, the place at which the court is sitting. (6) An order posted under this section must not contain any particulars likely to lead to the identification of a child who is a party to the proceeding. (7) A person must not contravene an order made and posted under this section. Penalty: (a) In the case of a person of or above the age of 18 years, 25 penalty units or 6 months imprisonment; or s. 69 -- 128 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 117 (b) In the case of a child of or above the age of 15 years, 25 penalty units or detention in a youth justice centre for 6 months; or (c) In the case of a child under the age of 15 years, 12 penalty units or detention in a youth residential centre for 3 months. 430ZE Legal representation Section 524 applies, with any necessary modifications, to appeals under this Part as if— (a) a reference to the Court or the Criminal Division were a reference to the court hearing an appeal under this Part; and (b) a reference to a proceeding referred to in section 525(2) were a reference to an appeal under this Part. 430ZF Interpreters If the court hearing an appeal under this Part is satisfied that a party to the appeal has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding, or participating in, the appeal, the court must not hear and determine the appeal without an interpreter interpreting it. 430ZG Explanation of and reasons for orders (1) If the court hearing an appeal makes an order in relation to bail or makes a final order in relation to the appeal, the court must explain the meaning and effect of the order as plainly and simply as possible and in a way which it considers the parties to the appeal will understand. s. 69 -- 129 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 118 (2) An explanation under subsection (1) must be given through an interpreter to a party to the appeal who the court considers has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding the explanation given by the court. Division 9—Costs on appeal 430ZH No costs on appeal or new hearing No costs are to be allowed to a party to— (a) an appeal under this Part; or (b) a new hearing; or (c) a proceeding preliminary or incidental to an appeal or new hearing. __________________". 70 Establishment of corrective services In section 478(a) of the Children, Youth and Families Act 2005, after "trial or" insert "the hearing of a charge or awaiting". 71 Power of arrest in youth justice centre In section 491(2) of the Children, Youth and Families Act 2005— (a) for "Section 49 of the Magistrates' Court Act 1989" substitute "Section 333 of the Criminal Procedure Act 2009"; and (b) for "a defendant" substitute "an accused"; and (c) for "the defendant" substitute "the accused". 72 Assignment of magistrates Section 507(5) of the Children, Youth and Families Act 2005 is repealed. s. 70 -- 130 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 119 73 Jurisdiction of Criminal Division (1) In section 516(1) of the Children, Youth and Families Act 2005— (a) in paragraph (c), for "defendant" (wherever occurring) substitute "child"; (b) in paragraph (e), for "sentencing order" (wherever occurring) substitute "sentence". (2) In section 516(4) of the Children, Youth and Families Act 2005— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "or in accordance with section 49 of the Magistrates' Court Act 1989" substitute "or deal with the accused in accordance with section 333 of the Criminal Procedure Act 2009". (3) In section 516(5) of the Children, Youth and Families Act 2005— (a) for "defendant" (wherever occurring) substitute "accused"; (b) in paragraph (f), for "sentencing orders" substitute "sentences". (4) In section 516(6) of the Children, Youth and Families Act 2005— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "or in accordance with section 49 of the Magistrates' Court Act 1989" substitute "or deal with the accused in accordance with section 333 of the Criminal Procedure Act 2009". s. 73 -- 131 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 120 74 Koori Court (Criminal Division) In the Children, Youth and Families Act 2005— (a) in section 518(b)— (i) for "sentencing order made" substitute "sentence imposed"; (ii) for "sentencing order" (where secondly occurring) substitute "sentence"; (b) in section 519(1), for "sentencing order made" substitute "sentence imposed"; (c) in section 520(1), for "sentencing order to make" substitute "sentence to impose". 75 Neighbourhood Justice Division In the Children, Youth and Families Act 2005— (a) in section 520C(4)(c)— (i) for "sentencing order made" substitute "sentence imposed"; (ii) for "sentencing order" (where secondly occurring) substitute "sentence"; (b) in section 520E(1), for "sentencing order to make" substitute "sentence to impose". 76 Procedural guidelines In section 522(4) of the Children, Youth and Families Act 2005, after "reviewed," insert "set aside,". 77 Explanation of and reasons for orders In the Children, Youth and Families Act 2005— (a) in section 527(4)(l) and (m), for "sentencing order" substitute "sentence"; (b) in section 527(12), after "reviewed," insert "set aside,". s. 74 -- 132 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 121 78 Powers of Children's Court For section 528(2) of the Children, Youth and Families Act 2005 substitute— "(2) Unless the contrary intention appears in this Act or any other Act— (a) the Magistrates' Court Act 1989 (except section 58 and Part 5); and (b) the Criminal Procedure Act 2009 in relation to proceedings in the Magistrates' Court (other than notice to appear and appeals); and (c) subject to any rules of court made under this Act, the regulations and rules of court made under those Acts— apply with any necessary modifications to the Children's Court and proceedings in the Court and, without limiting the application of section 419, to the issue of process in the same manner and to the same extent as they apply to the Magistrates' Court, the proceedings of that Court and the issue of process.". 79 Process In section 538(4) of the Children, Youth and Families Act 2005, for "section 35 of the Magistrates' Court Act 1989" substitute "section 399 of the Criminal Procedure Act 2009". 80 Pre-sentence reports In the Children, Youth and Families Act 2005— (a) in section 573(1)(c), for "sentencing orders" substitute "sentences"; (b) in section 573(2)(b) and (3), for "sentencing order" substitute "sentence". s. 78 -- 133 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 122 81 Witness or other person who has previously appeared in Children's Court In the Children, Youth and Families Act 2005— (a) in section 583(1), for "date of the charge," substitute "date of the charge-sheet charging the offence or the"; (b) in the heading to section 584, for "Defendant" substitute "Accused"; (c) in section 584(1), for "date of the charge," substitute "date of the charge-sheet charging the offence or the". 82 Transfer of proceedings In section 585 of the Children, Youth and Families Act 2005, for "defendant" (wherever occurring) substitute "accused". 83 Powers of Supreme Court or County Court In section 586 of the Children, Youth and Families Act 2005, for "make any sentencing order which the Children's Court may make" substitute "impose any sentence which the Children's Court may impose". 84 Rules (1) After section 588(1) of the Children, Youth and Families Act 2005 insert— "(1A) The President together with 2 or more magistrates for the Court may jointly make Rules for or with respect to— (a) prescribing forms for the purposes of the Criminal Division of the Court; (b) generally any matter relating to the practice and procedure of the Criminal Division of the Court.". s. 81 -- 134 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 123 (2) In section 588(2) of the Children, Youth and Families Act 2005, for "under subsection (1)" substitute "made under this section". 85 Supreme Court—limitation of jurisdiction At the end of section 599 of the Children, Youth and Families Act 2005 insert— "(2) It is the intention of section 430Q to alter or vary section 85 of the Constitution Act 1975.". 86 New sections 609 and 610 inserted After section 608 of the Children, Youth and Families Act 2005 insert— "609 Transitional provision—Criminal Procedure Act 2009 (1) Part 5.1A as inserted by section 429 of the Criminal Procedure Act 2009 applies to a proceeding for a summary offence if the offence is alleged to have been committed on or after the commencement of section 429 of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 429 of the Criminal Procedure Act 2009, the offence is alleged to have been committed after that commencement. (3) Section 516A as inserted by section 430 of the Criminal Procedure Act 2009 applies to a committal proceeding if the criminal proceeding commenced on or after the commencement of section 430 of that Act. s. 85 -- 135 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 124 610 Transitional provision—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (1) Section 328 as amended by section 60 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal in relation to— (a) an order referred to in section 328(1) made on or after the commencement of section 60 of that Act; or (b) the dismissal of an application referred to in section 328(1) on or after the commencement of section 60 of that Act. (2) Divisions 1, 2 and 3 of Part 5.4, as inserted by section 69 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, apply to an appeal in relation to a sentence imposed by the Children's Court on or after the commencement of section 69 of that Act. (3) Division 6 of Part 5.4 (other than section 430W), as inserted by section 69 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, applies to an appeal from a final order of the Children's Court made on or after the commencement of section 69 of that Act. (4) Section 430W, as inserted by section 69 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, applies to an acquittal recorded on or after the commencement of s. 86 -- 136 of 268 -- Part 3—Amendment of Children, Youth and Families Act 2005 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 125 section 69 of that Act, irrespective of when the proceeding commenced. (5) Division 7 of Part 5.4, as inserted by section 69 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, applies to an appeal where the sentence is imposed on or after the commencement of section 69 of that Act.". 87 Amendment of Schedules (1) In Schedule 1 to the Children, Youth and Families Act 2005— (a) in clause 5(d), for "sentencing order" substitute "sentence"; (b) in clause 12, for "sentencing order" (wherever occurring) substitute "sentence"; (c) in clause 16(2), for "sentencing order" (wherever occurring) substitute "sentence". (2) In Schedule 2 to the Children, Youth and Families Act 2005, in clause 15(d), for "charge" substitute "charge-sheet". (3) In Schedule 3 to the Children, Youth and Families Act 2005— (a) in clauses 3(2)(h) and 3(2)(i), for "charge" substitute "charge-sheet"; and (b) in clause 6(6), for "charge" substitute "charge-sheet". __________________ s. 87 -- 137 of 268 -- Part 4—Amendment of Public Prosecutions Act 1994 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 126 PART 4—AMENDMENT OF PUBLIC PROSECUTIONS ACT 1994 88 Definitions (1) In section 3 of the Public Prosecutions Act 1994 insert the following definitions— "direct indictment has the same meaning as in the Criminal Procedure Act 2009; discontinue a prosecution has the meaning given by Part 5.4 of Chapter 5 of the Criminal Procedure Act 2009; related offences has the same meaning as in the Criminal Procedure Act 2009;". (2) In section 3 of the Public Prosecutions Act 1994, in the definition of special decision— (a) for paragraph (a) substitute— "(a) to file a direct indictment against a person for an offence except where— (i) the person, or a legal practitioner representing the person, has consented in writing to an indictment being filed for that offence; or (ii) the person, or a legal practitioner representing the person, has indicated in writing an intention to plead guilty to that offence; or"; (b) in paragraph (b)— (i) for "to enter a nolle prosequi, or not to take within the period prescribed under section 353(2) of the Crimes Act 1958 any step mentioned in that section," substitute "to discontinue a prosecution, or not to file an indictment s. 88 See: Act No. 43/1994. Reprint No. 3 as at 21 March 2007 and amending Act Nos 23/2008, 77/2008, 83/2008 and 4/2009. LawToday: www. legislation. vic.gov.au -- 138 of 268 -- Part 4—Amendment of Public Prosecutions Act 1994 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 127 within the period specified in section 163(1), (2) or (3) of the Criminal Procedure Act 2009, as the case requires,"; (ii) omit "on a committal proceeding"; (c) in paragraph (d)— (i) for "make presentment of" substitute "file an indictment against"; and (ii) for "make" (where secondly occurring) substitute "file"; and (iii) for "making, presentment of" substitute "filing, an indictment against"; (d) in paragraph (e)— (i) for "enter a nolle prosequi" substitute "discontinue a prosecution"; and (ii) for "the entering of a nolle prosequi" substitute "discontinuing the prosecution"; (e) in paragraph (f)— (i) for "a presentment or of a count or counts in a presentment" substitute "an indictment or of a charge or charges on an indictment"; and (ii) for "presentment or in the count or counts" substitute "indictment or in the charge or charges on the indictment". 89 Chief Crown Prosecutor is responsible to Director In section 20(2)(a) of the Public Prosecutions Act 1994, for "making presentment of" substitute "filing an indictment against". s. 89 -- 139 of 268 -- Part 4—Amendment of Public Prosecutions Act 1994 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 128 90 Functions of Director (1) After section 22(1)(a) of the Public Prosecutions Act 1994 insert— "(ab) to take over and conduct any proceeding in respect of— (i) a summary offence which has been transferred to the Supreme Court or the County Court under section 145 of the Criminal Procedure Act 2009; (ii) a summary offence which is to be heard and determined by the Supreme Court or the County Court under section 242 or 243 of the Criminal Procedure Act 2009;". (2) In section 22(1)(b)(i) of the Public Prosecutions Act 1994, for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". (3) In section 22(1)(b)(ii) of the Public Prosecutions Act 1994 omit ", other than proceedings in respect of an indictable offence that are consequent on a finding of a grand jury under section 354 of the Crimes Act 1958". 91 Power to discontinue criminal proceedings Section 25(1) of the Public Prosecutions Act 1994 is repealed. 92 Delegation (1) In section 30(1)(a) of the Public Prosecutions Act 1994, for "make presentment of" substitute "file an indictment against". (2) In section 30(2) of the Public Prosecutions Act 1994— (a) for "enter a nolle prosequi in a criminal proceeding" substitute "discontinue a prosecution"; and s. 90 -- 140 of 268 -- Part 4—Amendment of Public Prosecutions Act 1994 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 129 (b) for "enter the nolle prosequi" substitute "discontinue the prosecution". 93 Functions of Crown Prosecutors (1) In section 36(1)(a) of the Public Prosecutions Act 1994— (a) for "make presentment of" substitute "file an indictment against"; and (b) for "section 353 of the Crimes Act 1958" substitute "Part 5.2 of Chapter 5 of the Criminal Procedure Act 2009". (2) In section 36(2) of the Public Prosecutions Act 1994— (a) for "make presentment of" substitute "file an indictment against"; and (b) for "make presentment for" substitute "file an indictment for". (3) In section 36(5)(a) of the Public Prosecutions Act 1994, for "making presentment of" substitute "filing an indictment against". 94 Functions of Solicitor for Public Prosecutions In section 38(1)(b) of the Public Prosecutions Act 1994, for "Prosecutors;" substitute "Prosecutors.". 95 Outcome of trial cannot be challenged on ground relating to special decision In section 47 of the Public Prosecutions Act 1994— (a) for "on presentment" substitute "on indictment"; and (b) after "quashed" insert ", set aside"; and (c) for "making of the presentment" substitute "filing of the indictment". s. 93 -- 141 of 268 -- Part 4—Amendment of Public Prosecutions Act 1994 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 130 96 Substitution of section 49 For section 49 of the Public Prosecutions Act 1994 substitute— "49 Supreme Court—limitation of jurisdiction It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from— (a) entertaining any proceeding in which a verdict returned by a jury on a trial on indictment or an order made by a court on or in connection with such a verdict is sought to be challenged, appealed against, reviewed, quashed, set aside or called in question on the ground that the filing of the indictment was dependent on the making of a special decision and that the procedures prescribed by this Act with respect to the making of special decisions had not been complied with in relation to that special decision; or (b) entertaining any application by a person for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief in respect of a verdict returned by a jury on a trial on indictment or an order made by a court on or in connection with such a verdict on the ground referred to in paragraph (a).". __________________ s. 96 -- 142 of 268 -- Part 5—Consequential and Other Amendments to Other Acts Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 131 PART 5—CONSEQUENTIAL AND OTHER AMENDMENTS TO OTHER ACTS 97 Consequential and other amendments On the coming into operation of an item in the Schedule, the Act specified in the heading to that item is amended as set out in that item. __________________ s. 97 -- 143 of 268 -- Part 6—Repeal Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 132 PART 6—REPEAL 98 Repeal of Act This Act is repealed on 1 January 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). __________________ s. 98 -- 144 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 133 SCHEDULE Section 97 CONSEQUENTIAL AND OTHER AMENDMENTS 1 Aboriginal Heritage Act 2006 1.1 In section 30(2), for "sentencing order" substitute "sentence". 1.2 In section 35(1), for "sentencing order" substitute "sentence". 2 Aboriginal Lands Act 1970 2.1 In section 25(4), for "charge for" substitute "charge-sheet charging". 3 Accident Compensation Act 1985 3.1 In section 252(1)— (a) for "charge for an offence" substitute "charge-sheet charging an offence"; and (b) for "or for an offence" (wherever occurring) substitute "or an offence"; and (c) for "to file charges" substitute "to file charge-sheets". 3.2 In section 252(1A), for "charge for an offence" substitute "charge-sheet charging an offence". 4 Accident Towing Services Act 2007 4.1 For section 3(3)(a) substitute— "(a) against whom an indictment charging the offence has been filed; or". 4.2 In section 3(3)(b), for "a charge has been filed for the offence" substitute "a charge-sheet charging the offence has been filed". Sch. -- 145 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 134 4.3 In section 3(4)(a), for "by the entering of a nolle prosequi" substitute "by the discontinuance of the prosecution". 4.4 In section 3(4)(c), for "against whom the charge has been laid" substitute "charged". 4.5 In section 3(4)(d)— (a) for "against whom the charge has been laid" substitute "charged"; and (b) omit "that was the subject of the charge". 4.6 In section 128(7)(c), for "the charge" substitute "the offence charged". 4.7 In section 193(3), for "defendant" substitute "accused". 4.8 In section 204(3), for "charge" substitute "charge-sheet". 5 Administrative Law Act 1978 5.1 In section 12, after "quashing" insert "or setting aside". 6 Agricultural and Veterinary Chemicals (Victoria) Act 1994 6.1 In section 3(1), in the definition of instrument— (a) in paragraph (g), after "information or complaint laid," insert "charge-sheet filed,"; and (b) in paragraph (h) omit "presentment,". 7 Alcoholics and Drug-dependent Persons Act 1968 7.1 In section 14(2), for "appearing" substitute "attendance". 7.2 In section 14(3), for "Division 4 of Part 4 of the Magistrates' Court Act 1989 with respect to appeals" substitute "Chapter 6 of the Criminal Procedure Act 2009". Sch. -- 146 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 135 8 Appeal Costs Act 1998 8.1 In section 14(1), after "quashes" insert "or sets aside". 8.2 In section 15(1), for paragraphs (a), (b) and (c) substitute— "(a) section 257, 260, 287 or 291 of the Criminal Procedure Act 2009; or (b) section 427 of the Children, Youth and Families Act 2005—". 8.3 In section 17(1)(b), for "a defendant" substitute "an accused". 8.4 In section 17(4), for "a defendant" substitute "an accused". 8.5 In section 18(a), for subparagraphs (ii) and (iii) substitute— "(ii) under section 14A or 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". 8.6 For section 18(b) substitute— "(b) an investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 into the fitness of an accused to stand trial; or". 9 Australian Crime Commission (State Provisions) Act 2003 9.1 In section 20(7), for "section 53(1) of the Magistrates' Court Act 1989" substitute "section 28(1) of the Criminal Procedure Act 2009". 10 Australian Grands Prix Act 1994 10.1 In section 45(2)(b), for "defendant" substitute "accused". Sch. -- 147 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 136 11 Bail Act 1977 11.1 For "accused person" (wherever occurring) substitute "accused". 11.2 In section 3, in the definition of undertaking, for "appear" substitute "attend". 11.3 In section 5(1)(a), for "appear" substitute "attend". 11.4 In section 5(2)(a), for "appears" substitute "attends". 11.5 In the heading to section 5A, for "defendant" substitute "accused". 11.6 In section 5A, for "defendant" (wherever occurring) substitute "accused". 11.7 In the note at the foot of section 5A, for "section 49 of the Magistrates' Court Act 1989" substitute "section 333 of the Criminal Procedure Act 2009". 11.8 In section 6, for "appear" substitute "attend". 11.9 In section 7(1)(a), for "preliminary inquiry" substitute "committal proceeding". 11.10 In section 11(5), for "defendant" substitute "accused". 11.11 In section 12(1), for "appearance" substitute "attendance". 11.12 In section 12(2), for "appearance" substitute "attendance". 11.13 In section 15(1)— (a) for "appearance" (wherever occurring) substitute "attendance"; and (b) for "a preliminary examination" substitute "the first hearing in a committal proceeding". Sch. -- 148 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 137 11.14 In section 16(3)— (a) for "appear" (wherever occurring) substitute "attend"; and (b) for "appearance" substitute "attendance". 11.15 In section 16A, for "appearance" substitute "attendance". 11.16 In section 17(2), for "appearance" substitute "attendance". 11.17 In section 18(1), for "pending a preliminary hearing or trial for an offence or pending the determination of the matter of an information" substitute "pending the summary hearing of a charge or a committal proceeding or a trial". 11.18 In section 18A(6), for "quash" substitute "set aside". 11.19 In section 18A(9), for "appearance" substitute "attendance". 11.20 In section 19(1), for "appear" substitute "attend". 11.21 In section 19(2)— (a) for "appear" substitute "attend"; and (b) for "appearance" substitute "attendance". 11.22 In section 19(3)— (a) for "appear" substitute "attend"; and (b) for "appearance" substitute "attendance". 11.23 In section 21(1), for "appear" (wherever occurring) substitute "attend". 11.24 In section 22, for "appear" substitute "attend". 11.25 In section 23— (a) for "appearance" (wherever occurring) substitute "attendance"; and Sch. -- 149 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 138 (b) for "a defendant" substitute "an accused"; and (c) for "the defendant" (wherever occurring) substitute "the accused". 11.26 In section 24(1), for "appearance" (wherever occurring) substitute "attendance". 11.27 In section 24(2)(b), for "appear" substitute "attend". 11.28 In section 24(3)(a)(i), for "appear" substitute "attend". 11.29 In section 25, for "the defendant" (wherever occurring) substitute "the accused". 11.30 In section 26(2)— (a) for "appearance" substitute "attendance"; and (b) for "appear" substitute "attend". 11.31 In section 28, for "appearance" substitute "attendance". 11.32 In section 29(1)— (a) for "appear" substitute "attend"; and (b) for "appearance" substitute "attendance". 11.33 In section 29(2), for "appearance" (wherever occurring) substitute "attendance". 11.34 In section 30(1), for "appear" substitute "attend". 11.35 In section 30(2)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "appear" substitute "attend". Sch. -- 150 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 139 11.36 In section 30(3), for "appearance" substitute "attendance". 11.37 In section 31(1), for "appearance" substitute "attendance". 11.38 Insert the following heading to section 32— "Deposit forfeited on failure to attend". 11.39 In section 32, for "appear" substitute "attend". 11.40 In section 33(b) and (c), for "accused persons" substitute "an accused". 12 Biological Control Act 1986 12.1 In section 45(3), for "defendant" substitute "accused". 13 Building Act 1993 13.1 In section 118(3), for "defendant" substitute "accused". 14 Bus Safety Act 2009 14.1 In section 3(4)(a)— (a) omit "a presentment has been made or"; and (b) for "laid" substitute "filed". 14.2 In section 3(4)(b), for "a charge has been filed for the offence" substitute "a charge-sheet charging the offence has been filed". 14.3 In section 3(5)(a), for "by the entering of a nolle prosequi" substitute "by the discontinuance of the prosecution". 14.4 In section 3(5)(c), for "against whom the charge has been laid" substitute "charged". 14.5 In section 3(5)(d)— (a) for "against whom the charge has been laid" substitute "charged"; and (b) omit "that was the subject of the charge". Sch. -- 151 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 140 14.6 In the note at the foot of section 15(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 14.7 In the note at the foot of section 16(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 14.8 In the note at the foot of section 17(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 14.9 In the note at the foot of section 18(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 14.10 For Division 1 of Part 9 substitute— 'Division 1—Criminal Procedure Act 2009 79 Amendment of Schedule 2—Indictable offences that may be heard and determined summarily After item 3 of Schedule 2 to the Criminal Procedure Act 2009 insert— "3A Bus Safety Act 2009 Indictable offences under the Bus Safety Act 2009.".'. Sch. -- 152 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 141 15 Business Franchise (Tobacco) Act 1974 15.1 In section 19E(5), for "defendant" substitute "accused". 15.2 In section 19E(6), for "defendant" (wherever occurring) substitute "accused". 16 Casino Control Act 1991 16.1 In section 60(4), for "defendant" substitute "accused". 17 Cemeteries and Crematoria Act 2003 17.1 In section 175, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009". 18 Charter of Human Rights and Responsibilities Act 2006 18.1 In section 3(1) insert the following definition— "trial, in relation to the Magistrates' Court or the Children's Court, means hearing of a charge;". 18.2 In section 21(6), for "appear" substitute "attend". 18.3 In section 33(3), after "Supreme Court" insert "or by the County Court". 18.4 After section 49(3) insert— "(4) Section 33(3) as amended by item 18.3 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to a question referred under section 33(1) on or after the commencement of that item.". 19 Children's Services Act 1996 19.1 In section 8(2), for "defendant" substitute "accused". Sch. -- 153 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 142 20 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 20.1 In section 12(2)(a), for "defendant" substitute "accused". 20.2 In section 13(2)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's employee or agent" (wherever occurring) substitute "employee or agent of the accused". 20.3 In section 14(3)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's employee or agent" (wherever occurring) substitute "employee or agent of the accused". 20.4 In section 19(2), for "defendant" substitute "accused". 20.5 In section 20(3)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's employee or agent" (wherever occurring) substitute "employee or agent of the accused"; and (c) for "defendant's employer" substitute "employer of the accused". 20.6 In section 20(6)— (a) for "defendant" substitute "accused"; and (b) for "defendant's employee or agent" substitute "employee or agent of the accused". Sch. -- 154 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 143 20.7 In section 22(2), for "defendant" substitute "accused". 20.8 In section 25(3), for "defendant" substitute "accused". 20.9 In section 29(2), for "defendant" (wherever occurring) substitute "accused". 20.10 In section 30(2), for "defendant" (wherever occurring) substitute "accused". 20.11 In section 30(5), for "defendant" substitute "accused". 20.12 In section 33(2)— (a) for "defendant" substitute "accused"; and (b) for "defendant's employee or agent" substitute "employee or agent of the accused". 20.13 In section 39(2)(a), for "defendant" substitute "accused". 20.14 In section 41(2), for "defendant" substitute "accused". 20.15 In section 42(3)— (a) for "defendant" substitute "accused"; and (b) for "defendant's employee or agent" substitute "employee or agent of the accused". 20.16 In section 44(2), for "defendant" substitute "accused". 20.17 In section 57(2), for "defendant" substitute "accused". 20.18 In section 58(2) and (5), for "defendant" (wherever occurring) substitute "accused". Sch. -- 155 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 144 20.19 In section 60(4), for "defendant" substitute "accused". 20.20 In section 60A(4), for "defendant" substitute "accused". 20.21 In section 61(4), for "defendant" substitute "accused". 20.22 In section 62(3), for "defendant" substitute "accused". 20.23 In section 62A(3), for "defendant" substitute "accused". 20.24 In section 62B(3), for "defendant" substitute "accused". 20.25 In section 77(2), for "defendant" substitute "accused". 21 Collusive Practices Act 1965 21.1 In section 3(2) and (4), for "defendant" substitute "accused". 21.2 After section 11 insert— "12 Transitional (1) Sections 3(1), 3(3) and 7, as amended by section 435(4) of the Criminal Procedure Act 2009 apply to an offence alleged to have been committed on or after the commencement of section 435(4) of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(4) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". Sch. -- 156 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 145 22 Competition Policy Reform (Victoria) Act 1995 22.1 In section 3(1), in the definition of instrument— (a) in paragraph (g), after "information or complaint laid," insert "charge-sheet filed,"; and (b) in paragraph (h) omit "presentment,". 22.2 In section 24(2)(b), after "trial" insert "or hearing of a charge". 23 Confiscation Act 1997 23.1 In section 3(1) insert the following definition— "accused, in relation to an offence, means the person who— (a) has been or will be charged with the offence; or (b) has been convicted of the offence— and in respect of whom an application is made under this Act;". 23.2 In section 3(1), in the definition of appeal period, for "a defendant's conviction of an offence" substitute "the conviction of an accused of an offence". 23.3 In section 3(1), the definition of defendant is repealed. 23.4 In section 3(1), in the definition of derived property, for "defendant" (wherever occurring) substitute "accused". 23.5 In section 3(1), in the definition of gift, for "defendant" substitute "accused". 23.6 In section 3(1), in the definition of tainted property, for "defendant" substitute "accused". Sch. -- 157 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 146 23.7 Insert the following heading to section 6— "Meaning of setting aside a conviction". 23.8 In section 6— (a) for "quashed" (where first occurring) substitute "set aside"; and (b) in paragraphs (a), (b) and (c) omit "quashed or". 23.9 For section 7(1)(a) substitute— "(a) an indictment has been filed against the person for the offence; or". 23.10 In section 7(2), for "the entering of a nolle prosequi" substitute "the discontinuance of a prosecution". 23.11 Insert the following heading to section 10— "Property in which the accused has an interest". 23.12 In section 10, for "defendant" (wherever occurring) substitute "accused". 23.13 In section 12(4), for "a defendant" substitute "an accused". 23.14 In section 12(5)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 23.15 In section 16(1), for "defendant" substitute "accused". 23.16 In section 16(4), for "defendant" (wherever occurring) substitute "accused". Sch. -- 158 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 147 23.17 In section 18(1), for "defendant" substitute "accused". 23.18 In section 20(1), for "defendant" substitute "accused". 23.19 In section 21, for "defendant" (wherever occurring) substitute "accused". 23.20 In section 22, for "defendant" (wherever occurring) substitute "accused". 23.21 In section 26(2)(b), for "defendant" substitute "accused". 23.22 In section 27— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) in subsection (3)(c)— (i) for "quashed" substitute "set aside"; and (ii) for "re-trial" substitute "new trial"; and (iii) for "quashing" substitute "setting aside". 23.23 In section 32— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 23.24 In section 34A(1), for "defendant" substitute "accused". Sch. -- 159 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 148 23.25 In section 34B— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 23.26 In the example at the foot of section 34B(2)(c)— (a) for "A defendant" substitute "An accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) for "the defendant's flat" substitute "the flat owned by the accused". 23.27 In section 34C, for "defendant" (wherever occurring) substitute "accused". 23.28 In section 35— (a) for "the defendant's conviction" (wherever occurring) substitute "the conviction of the accused"; and (b) for "defendant" substitute "accused". 23.29 In section 35A(1), for "a defendant" substitute "an accused". 23.30 In section 35A(2), for "defendant" substitute "accused". 23.31 In the heading to section 35B, for "defendant" substitute "accused". 23.32 In section 35B, for "defendant" (wherever occurring) substitute "accused". 23.33 In section 36— (a) for "a defendant's conviction" substitute "the conviction of an accused"; and (b) for "a defendant" substitute "an accused". Sch. -- 160 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 149 23.34 In section 44(2), for "defendant" substitute "accused". 23.35 In section 46(1)(a), for "quashed" substitute "set aside". 23.36 In section 47(1)(a), for "quashed" substitute "set aside". 23.37 In section 49(1), for "defendant" substitute "accused". 23.38 In section 50, for "defendant" (wherever occurring) substitute "accused". 23.39 In section 51(1), for "defendant" substitute "accused". 23.40 In section 52, for "defendant" (wherever occurring) substitute "accused". 23.41 In section 56(7) for "quashed" substitute "set aside". 23.42 In section 58— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 23.43 In section 59, for "defendant" (wherever occurring) substitute "accused". 23.44 In section 60(2)(d), for "defendant" substitute "accused". 23.45 In section 61— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". Sch. -- 161 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 150 23.46 In section 62(1)(a), for "quashed" substitute "set aside". 23.47 In section 63(1), for "a defendant" substitute "an accused". 23.48 In section 63(5), for "defendant" substitute "accused". 23.49 In section 64(1) and (2), for "defendant" (wherever occurring) substitute "accused". 23.50 In section 64(3), for "defendant" substitute "accused". 23.51 In section 64(5)— (a) for "quashing" substitute "setting aside"; and (b) for "quashed" substitute "set aside". 23.52 In section 64(6), for "a defendant" substitute "an accused". 23.53 In section 67— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) for "on the defendant's behalf" substitute "on behalf of the accused"; and (d) for "the defendant's thoughts, opinions or emotions" substitute "the thoughts, opinions or emotions of the accused". 23.54 In section 68— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". Sch. -- 162 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 151 23.55 In section 69, for "defendant" (wherever occurring) substitute "accused". 23.56 In section 70, for "defendant" (wherever occurring) substitute "accused". 23.57 In section 74, for "defendant" (wherever occurring) substitute "accused". 23.58 In section 78(3)(b), for "quashed" substitute "set aside". 23.59 In section 93(4), for "defendant" substitute "accused". 23.60 In section 95B(2)(f), for "defendant" substitute "accused". 23.61 In section 97(1)(d)— (a) for "quashed" substitute "set aside"; and (b) for "retrial" substitute "new trial"; and (c) for "quashing" (wherever occurring) substitute "setting aside". 23.62 In section 98— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 23.63 In section 118E(2)(a), for "a defendant" substitute "an accused". 23.64 In section 133A(3)(d), for "defendant" substitute "accused". 24 Conservation, Forests and Lands Act 1987 24.1 In section 88A, for "defendant" (wherever occurring) substitute "accused". Sch. -- 163 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 152 25 Constitution Act 1975 25.1 In section 73(1), after "defendant" insert ", accused". 25.2 In section 74(1), after "defendant" insert "or accused". 25.3 In section 74(3), after "defendant" insert "or accused". 26 Construction Industry Long Service Leave Act 1997 26.1 In section 16, for "defendant" (wherever occurring) substitute "accused". 27 Control of Weapons Act 1990 27.1 Insert the following heading to section 8— "Claim of lawful excuse". 27.2 In section 8, for "Section 130 of the Magistrates' Court Act 1989" substitute "Section 72 of the Criminal Procedure Act 2009". 28 Conveyancers Act 2006 28.1 In section 9(3), for "defendant" substitute "accused". 28.2 In section 168(3), for "defendant" substitute "accused". 29 Co-operatives Act 1996 29.1 In section 351(2), for "defendant" substitute "accused". 29.2 Section 453(4) is repealed. 30 Coroners Act 2008 30.1 In section 104(1)— (a) for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009"; and Sch. -- 164 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 153 (b) in paragraph (b), for "passed" substitute "imposed". 30.2 In section 104(2), for "section 579 of the Crimes Act 1958" substitute "section 310 of the Criminal Procedure Act 2009". 30.3 In section 104(3), for "in accordance with Part VI of the Crimes Act 1958" substitute "under section 313 of the Criminal Procedure Act 2009". 31 Corporations (Ancillary Provisions) Act 2001 31.1 In section 20(3)(b), after "trial" insert "or hearing of a charge". 31.2 In section 20(3)(d), for "indictable triable summarily" substitute "indictable that may be heard and determined summarily". 32 Corporations (Victoria) Act 1990 32.1 In section 13(5) in the definition of instrument, in paragraph (g), for "information laid" substitute "charge-sheet filed". 32.2 In section 13(5) in the definition of instrument, in paragraph (h) omit "presentment,". 32.3 In section 28(2)(b), after "trial" insert "or hearing of a charge". 32.4 In section 42AA(2), for "defendant" substitute "accused". 32.5 In section 42AA(4), in the definition of related criminal justice process decision, in paragraph (a), for "defendant" substitute "accused". 32.6 In section 55(1)(b), after "trial" insert ", hearing". 32.7 In section 55(4)(a), after "trial" insert ", hearing". Sch. -- 165 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 154 32.8 In section 56(4), in the definition of criminal procedure— (a) in paragraph (b), for "trial and indictment" substitute "trial on indictment"; and (b) in paragraph (d), after "trial" insert ", hearing". 32.9 In section 65(5), in the definition of instrument— (a) in paragraph (g), for "information laid" substitute "charge-sheet filed"; and (b) in paragraph (h) omit "presentment,". 33 Corrections Act 1986 33.1 In section 55B(2)(a), for "appearing" substitute "attending". 33.2 In section 110(c), for "section 128A of the Magistrates' Court Act 1989" substitute "section 59 of the Criminal Procedure Act 2009". 34 Country Fire Authority Act 1958 34.1 In section 39B, for "defendant" substitute "accused". 34.2 In section 40(14), for "defendant" substitute "accused". 34.3 In section 48(3), for "defendant" substitute "accused". 35 County Court Act 1958 35.1 In section 4A(6), for "defendant" (wherever occurring) substitute "accused". 35.2 In section 4B(b)— (a) for "sentencing order made" substitute "sentence imposed"; and Sch. -- 166 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 155 (b) for "sentencing order" (where secondly occurring) substitute "sentence". 35.3 In section 4C, for "sentencing order made" substitute "sentence imposed". 35.4 In section 4D(1)— (a) for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and (b) for "a sentencing order made" substitute "the sentence imposed". 35.5 In section 4D(2)— (a) for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and (b) for "a sentencing order" substitute "the sentence imposed". 35.6 In section 4D(3), for "Section 85 of the Magistrates' Court Act 1989 does not apply" substitute "Sections 256(1) and 259(1) of the Criminal Procedure Act 2009 do not apply". 35.7 In section 4E, for "defendant" (wherever occurring) substitute "accused". 35.8 In section 4G(1), for "which sentencing order to make in respect of a defendant" substitute "the sentence to impose on an offender". 35.9 In section 4G(3)(e), for "defendant" substitute "offender". 35.10 In section 7(4), for "appearing" substitute "attending". 35.11 In section 32(3), for "defendant" substitute "offender". Sch. -- 167 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 156 35.12 In section 36, after "defendant" (wherever occurring) insert "or accused". 35.13 In section 53A, for "section 83 of the Magistrates' Court Act 1989" substitute "sections 254, 257 and 260 of the Criminal Procedure Act 2009". 35.14 In section 78(1)(hec), for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009". 35.15 In section 78(1)(hed), for "sentencing orders were made" substitute "sentences were imposed". 35.16 For section 80AA(e) substitute— "(e) cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for a sexual offence within the meaning of the Criminal Procedure Act 2009; or". 36 Court Security Act 1980 36.1 After section 3 insert— "3A Police to be present at courts The Chief Commissioner of Police must— (a) direct that a sufficient number of members of the police force be present to keep order on court premises at all sittings of— (i) the Supreme Court in its criminal jurisdiction; and (ii) the County Court in its criminal jurisdiction; and (b) at the request of the judge presiding at a particular sitting of a court referred to in paragraph (a), direct that an Sch. -- 168 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 157 additional number of members of the police force be present at that sitting.". 37 Credit (Administration) Act 1984 37.1 In section 32(3), for "defendant" substitute "accused". 38 Credit Act 1984 38.1 In section 132(4), for "defendant" substitute "accused". 39 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 39.1 In section 5, for "tried" (wherever occurring) substitute "heard and determined". 39.2 In section 8(1)— (a) for "a defendant's fitness" substitute "the fitness of an accused"; and (b) for "at a committal hearing" substitute "in a committal proceeding"; and (c) for paragraph (a) substitute— "(a) the committal proceeding must be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009; and"; and (d) for "defendant" (wherever occurring) substitute "accused". 39.3 In section 8(2)— (a) for "a defendant" substitute "an accused"; and (b) for "a presentment or indictment" substitute "an indictment"; and (c) for "the defendant's fitness" substitute "the fitness of the accused". Sch. -- 169 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 158 39.4 In section 8(3), for "defendant" substitute "accused". 39.5 In section 9— (a) for "a presentment or indictment" substitute "an indictment"; and (b) for "the defendant" substitute "the accused"; and (c) for "the defendant's fitness" (wherever occurring) substitute "the fitness of the accused"; and (d) in subsection (3)— (i) for "a defendant's fitness" substitute "the fitness of an accused"; and (ii) for "proceedings" substitute "proceeding"; and (e) in subsection (4), for "a defendant's fitness to be tried" substitute "the fitness of an accused to stand trial". 39.6 In section 10— (a) for "a defendant's fitness" substitute "the fitness of an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) for "a defendant" (wherever occurring) substitute "an accused". 39.7 In section 11— (a) for "a defendant's fitness" (wherever occurring) substitute "the fitness of an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and Sch. -- 170 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 159 (c) for "the defendant's fitness" substitute "the fitness of the accused". 39.8 In section 12— (a) for "the defendant" (wherever occurring) substitute "the accused"; and (b) for "a defendant" (wherever occurring) substitute "an accused". 39.9 In section 13, for "defendant" (wherever occurring) substitute "accused". 39.10 In section 14, for "defendant" (wherever occurring) substitute "accused". 39.11 In section 15, for "defendant" substitute "accused". 39.12 In section 16— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's legal representative (if any)" substitute "legal representative (if any) of the accused"; and (c) for "defendant's rights" substitute "rights of the accused"; and (d) for "section 360A of the Crimes Act 1958 (adjournment or stay of trial)" substitute "section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused)". 39.13 In section 17, for "defendant" (wherever occurring) substitute "accused". 39.14 In section 18, for "defendant" (wherever occurring) substitute "person". 39.15 In section 19, for "defendant" (wherever occurring) substitute "person". Sch. -- 171 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 160 39.16 In section 19A— (a) for "quash" substitute "set aside"; and (b) for "defendant" (wherever occurring) substitute "person". 39.17 After section 19A(1) insert— "(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C. (1B) A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally. (1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. (1D) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the special hearing, if that legal practitioner can reasonably be identified.". 39.18 In section 21(4)(b), for "the charge for the offence" substitute "the person". 39.19 In section 22(2)(b), for "defendant" substitute "accused". 39.20 In section 22(3)— (a) for "A defendant" substitute "An accused"; and (b) for "at a committal hearing" substitute "in a committal proceeding". Sch. -- 172 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 161 39.21 In section 23, for "defendant" (wherever occurring) substitute "person". 39.22 In section 24, for "defendant" (wherever occurring) substitute "person". 39.23 In section 24A— (a) for "quash" substitute "set aside"; and (b) for "defendant" (wherever occurring) substitute "person". 39.24 After section 24A(1) insert— "(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C. (1B) A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally. (1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. (1D) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.". 39.25 After section 28A(2) insert— "(2A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any Sch. -- 173 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 162 extension of that period granted under section 76C. (2B) If the appeal is commenced by a person in respect of whom a supervision order is made, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed. (2C) If the appeal is commenced by the Secretary to the Department of Human Services, the Director of Public Prosecutions or the Attorney-General— (a) the notice of appeal must be signed by that person personally; and (b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.". 39.26 In section 28A(3)— (a) for "quash" (wherever occurring) substitute "set aside"; and (b) for "defendant" substitute "person who was subject to the supervision order". Sch. -- 174 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 163 39.27 In section 28A(5)— (a) after "supervision order" (where first occurring) insert "in respect of a person"; and (b) for "defendant" (wherever occurring) substitute "person". 39.28 After section 34(3) insert— "(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order confirming or varying the supervision order is made or any extension of that period granted under section 76C. (3B) If the appeal is commenced by a person who is subject to a supervision order, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed. (3C) If the appeal is commenced by the Secretary to the Department of Human Services, the Director of Public Prosecutions or the Attorney-General— (a) the notice of appeal must be signed by that person personally; and (b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and Sch. -- 175 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 164 (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.". 39.29 In section 34(4) and (5), for "quash" (wherever occurring) substitute "set aside". 39.30 In section 34(7)— (a) for "quashes a supervision order" substitute "sets aside a supervision order in respect of a person"; and (b) for "defendant" substitute "person". 39.31 After section 34A(2) insert— "(2A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is revoked or any extension of that period granted under section 76C. (2B) A notice of appeal under subsection (2A) must be signed personally by the Secretary to the Department of Human Services, the Director of Public Prosecutions or the Attorney-General, as the case requires. (2C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. Sch. -- 176 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 165 (2D) The person commencing the appeal must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was revoked, if that legal practitioner can reasonably be identified.". 39.32 In section 34A(3)(b), for "quash" substitute "set aside". 39.33 In section 34A(3)(c), for "quash the order for" substitute "set aside the order". 39.34 Insert the following heading to section 36— "Person subject to supervision order has right to appear". 39.35 In section 36(4)— (a) for "appearance" substitute "attendance"; and (b) for "appear at the hearing in person" substitute "attend the hearing". 39.36 In section 36(6), for "Section 360A of the Crimes Act 1958 (adjournment or stay of trial)" substitute "Section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused)". 39.37 Insert the following heading to section 41— "Reports on mental condition of persons declared liable to supervision". 39.38 After section 57B(3) insert— "(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which extended leave is granted or refused (as the case requires) or any extension of that period granted under section 76C. Sch. -- 177 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 166 (3B) If the appeal is commenced under subsection (1), the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed. (3C) If the appeal is commenced by the Secretary to the Department of Human Services, the Director of Public Prosecutions or the Attorney-General— (a) the notice of appeal must be signed by that person personally; and (b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the application for extended leave, if that legal practitioner can reasonably be identified.". 39.39 In section 57B(5), for "quash" (wherever occurring) substitute "set aside". 39.40 After section 58A(3) insert— "(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which extended leave is revoked or revocation of the extended leave is refused (as the case requires) or any extension of that period granted under section 76C. Sch. -- 178 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 167 (3B) If the appeal is commenced under subsection (1), the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed. (3C) If the appeal is commenced by the Secretary to the Department of Human Services, the Director of Public Prosecutions or the Attorney-General— (a) the notice of appeal must be signed by that person personally; and (b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the application for revocation of extended leave, if that legal practitioner can reasonably be identified.". 39.41 In section 58A(4)(b), for "quash" substitute "set aside". 39.42 In section 65(4), for "appear" substitute "attend". 39.43 In section 72(3), for "appearing" substitute "attending". 39.44 After section 73H(1) insert— "(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is Sch. -- 179 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 168 made or any extension of that period granted under section 76C. (1B) A notice of appeal under subsection (1A) must be signed by the Attorney-General personally. (1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. (1D) The Attorney-General must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the review under section 73F, if that legal practitioner can reasonably be identified.". 39.45 In section 73H(2), for "quash" (wherever occurring) substitute "set aside". 39.46 After section 73N(1) insert— "(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C. (1B) A notice of appeal under subsection (1A) must be signed by the Attorney-General personally. (1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. Sch. -- 180 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 169 (1D) The Attorney-General must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the review under section 73L, if that legal practitioner can reasonably be identified.". 39.47 In section 73N(2), for "quash" (wherever occurring) substitute "set aside". 39.48 Section 73N(7) and (8) are repealed. 39.49 In section 75(1)(c), for "a defendant or another person" substitute "an accused or any person". 39.50 For section 76B substitute— "76B Rules of court (1) Rules of court made by the authority having for the time being power to make rules regulating the practice and procedure of a court may include rules for or with respect to any matter for which provision is to be made under this Act by rules of court. (2) Rules of court made under this Act may regulate generally the practice and procedure under this Act.". 39.51 After section 76B insert— "76C Extension of time for filing notice of appeal (1) The Court of Appeal or the Registrar of Criminal Appeals of the Supreme Court at any time may extend the time within which a notice of appeal may be filed under this Act. (2) If the Registrar of Criminal Appeals of the Supreme Court refuses an application to extend time under subsection (1), the applicant is entitled to have the Court of Appeal determine the application. Sch. -- 181 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 170 76D Powers which may be exercised by a single Judge of Appeal (1) The power of the Court of Appeal under section 76C to extend the time within which notice of appeal may be given may be exercised by a single Judge of Appeal in the same manner as it may be exercised by the Court of Appeal. (2) If a Judge of Appeal refuses an application to exercise a power referred to in subsection (1), the applicant is entitled to have the application determined by the Court of Appeal.". 39.52 In Schedule 3, after clause 10 insert— "11 Transitional provisions—Criminal Procedure Act 2009 (1) Section 14A as inserted by section 423 of the Criminal Procedure Act 2009 applies to a finding on an investigation under Part 2 that an accused is unfit to stand trial made on or after the commencement of section 423 of that Act. (2) Section 24AA as inserted by section 424 of the Criminal Procedure Act 2009 applies to a verdict of not guilty because of mental impairment recorded on or after the commencement of section 424 of that Act. 12 Transitional provisions—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (1) Section 19A as amended by item 39.17 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the Sch. -- 182 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 171 order to which the appeal relates is made on or after the commencement of that item. (2) Section 24A as amended by item 39.24 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (3) Section 28A as amended by item 39.25 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (4) Section 34 as amended by item 39.28 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (5) Section 34A as amended by item 39.31 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal against the revocation of a non- custodial supervision order where the order revoking the supervision order is made on or after the commencement of that item. (6) Section 57B as amended by item 39.38 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the application for extended leave is refused or Sch. -- 183 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 172 granted, as the case may be, on or after the commencement of that item. (7) Section 58A as amended by item 39.40 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the extended leave is revoked or the application for revocation of extended leave is refused, as the case may be, on or after the commencement of that item. (8) Section 73H as amended by item 39.44 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (9) Section 73N as amended by item 39.46 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.". 40 Crimes Act 1958 40.1 In section 6(2) omit "or presentment". 40.2 In section 33(2), for "defendant" (wherever occurring) substitute "accused". 40.3 In section 45(5), for "presentment" substitute "indictment". 40.4 In section 45(9), for "section 53(1) of the Magistrates' Court Act 1989 applies (indictable offences triable summarily)" substitute "section 28 of the Criminal Procedure Act 2009 applies". Sch. -- 184 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 173 40.5 In section 70(2), for "defendant" (wherever occurring) substitute "accused". 40.6 In the heading to section 88A, for "counts" substitute "charges". 40.7 In section 88A(a)— (a) for "presentment" substitute "indictment"; and (b) for "counts" substitute "charges". 40.8 In section 93(1) omit "or presentment". 40.9 In section 95(2), for "an information laid" substitute "the filing of a charge-sheet". 40.10 In section 316(3)— (a) for "by information" (where first occurring) substitute "by evidence"; and (b) for "either by such information or by information to" substitute "either by such evidence or by evidence on oath before". 40.11 In section 317(7)— (a) for "presentment" (wherever occurring) substitute "indictment"; and (b) for "counts" substitute "charges"; and (c) for "count" substitute "charge". 40.12 In section 317(8) omit "presentment". 40.13 In section 318(3)— (a) for "A presentment" substitute "An indictment"; and (b) for "hearing of the presentment" substitute "trial on the indictment". 40.14 In section 318(5) and (6), for "presentment" substitute "indictment". Sch. -- 185 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 174 40.15 In section 321(4), for "A presentment at the Supreme Court or the County Court of a person for an offence against this section shall not be made" substitute "An indictment charging an offence against this section must not be filed". 40.16 In section 321C(1)(d), for "is triable" substitute "may be heard and determined". 40.17 In section 321F(4), for "A presentment at the Supreme Court or the County Court of a person for an offence of conspiracy to cheat and defraud or conspiracy to defraud shall not be made" substitute "An indictment charging an offence of conspiracy to cheat and defraud or conspiracy to defraud must not be filed". 40.18 In section 321I(1)(d), for "is triable" substitute "may be heard and determined". 40.19 In section 322C(5)— (a) omit "or presentment"; and (b) for "tried summarily" substitute "heard and determined summarily". 40.20 In section 323, for "tried, indicted or presented" substitute "tried or indicted". 40.21 In section 325(3) omit "or presented". 40.22 In section 399(8), for "the provisions of Schedule 5 to the Magistrates' Court Act 1989" substitute "Chapter 4 of the Criminal Procedure Act 2009". 40.23 In section 413— (a) for "clause 6(1) of Schedule 5 to the Magistrates' Court Act 1989" substitute "section 110 of the Criminal Procedure Act 2009"; and (b) for "preliminary or other investigation" substitute "committal proceeding". Sch. -- 186 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 175 40.24 In section 421(1) omit "or presentment". 40.25 Section 422 is repealed. 40.26 Section 422A(2) is repealed. 40.27 Section 423 is repealed. 40.28 Section 424 is repealed. 40.29 Section 425(4) is repealed. 40.30 In section 458(1)(a)(i), for "appearance" substitute "attendance". 40.31 In section 458(3)— (a) for "indictable offence punishable summarily" substitute "indictable offence that may be heard and determined summarily"; and (b) after "summons has been issued against him" insert "or a notice to appear has been served on him". 40.32 After section 458(3) insert— "(4) In subsection (3), notice to appear has the same meaning as in the Criminal Procedure Act 2009.". 40.33 In section 459, for "heard or determined" (wherever occurring) substitute "heard and determined". 40.34 In section 461(2), after "summons" insert "or notice to appear". 40.35 After section 461(2) insert— "(3) In subsection (2) notice to appear has the same meaning as in the Criminal Procedure Act 2009.". 40.36 In section 464ZF(6B) and (7), for "quashed" substitute "set aside". Sch. -- 187 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 176 40.37 In section 464ZFAAA(1), in the definition of forensic sample offence, for "tried summarily" substitute "heard and determined summarily". 40.38 In section 464ZFB(1B), for "tried summarily" substitute "heard and determined summarily". 40.39 In section 46ZFB(2A), for "quashed" substitute "set aside". 40.40 In section 464ZGJ(4), for "quashed" substitute "set aside". 40.41 In section 469AA(3), for "quashed" substitute "set aside". 40.42 Schedule 5 is repealed. 41 Crown Land (Reserves) Act 1978 41.1 In section 13(8), for "charge" substitute "charge- sheet containing a charge". 41.2 In section 13(9), for "charge" (wherever occurring) substitute "charge-sheet". 42 Crown Proceedings Act 1958 42.1 In section 5(3)(c), for "a presentment" substitute "an indictment". 42.2 In section 6(6)(c), for "a presentment" substitute "an indictment". 43 Dairy Act 2000 43.1 In section 59(1)(e)(ii), for "defendant" substitute "accused". 44 Dangerous Goods Act 1985 44.1 In the note at the foot of section 17B(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 188 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 177 44.2 In the note at the foot of section 17C(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.3 In the note at the foot of section 17D(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.4 In the note at the foot of section 18A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.5 In the note at the foot of section 21AA(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.6 In the note at the foot of section 21AA(7), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.7 In the note at the foot of section 31(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.8 In the note at the foot of section 31A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 189 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 178 44.9 In the note at the foot of section 31B(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.10 In the note at the foot of section 31C(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 44.11 In section 37(5), for "defendant" substitute "accused". 44.12 In section 42A(2) and (3), for "defendant" (wherever occurring) substitute "accused". 44.13 In section 42A(5)(b), for "defendant" substitute "accused". 44.14 Insert the following heading to section 43— "Right of accused to have third person before court". 44.15 In section 43(1), for "A defendant" substitute "An accused". 44.16 In section 43(2)— (a) for "A defendant" substitute "An accused"; and (b) for "defendant's intention" substitute "intention of the accused"; and (c) for "defendant's claim" substitute "claim of the accused"; and (d) for "the defendant" substitute "the accused"; and (e) for "charge" substitute "charge-sheet". Sch. -- 190 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 179 44.17 In section 43(3)— (a) for "laid" substitute "contained on a charge- sheet filed"; and (b) for "charge is filed" substitute "charge-sheet is filed". 44.18 In section 43(4), for "defendant" (wherever occurring) substitute "accused". 44.19 In section 47D(1)(b), for "defendant" substitute "accused". 45 Domestic Animals Act 1994 45.1 Insert the following heading to section 92— "Power to file charge-sheets under this Act". 45.2 In section 92, for "charge for" substitute "charge- sheet charging". 45.3 In section 95, after "charge" (wherever occurring) insert "contained on a charge-sheet". 46 Domestic Building Contracts Act 1995 46.1 In section 128(4)(b)(ii), after "tried" insert "or heard". 47 Drugs, Poisons and Controlled Substances Act 1981 47.1 Insert the following heading to section 45— "Time within which charge-sheet to be filed". 47.2 In section 45, for "charge for" substitute "charge- sheet charging". 47.3 In section 119(a), for "defendant" substitute "accused". 47.4 In section 120(2) and (3), for "defendant" (wherever occurring) substitute "accused". 47.5 In section 120(5)(b), for "defendant" substitute "accused". Sch. -- 191 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 180 48 Education and Training Reform Act 2006 48.1 In section 2.1.14, for "defendant" substitute "accused". 48.2 In the heading to section 2.4.63, for "Quashing" substitute "Setting aside". 48.3 In section 2.4.63, after "quashed" insert "or set aside". 48.4 In section 2.6.27(10)(b)(i), for "a nolle prosequi is entered in relation to the charge" substitute "the prosecution for the offence charged is discontinued". 48.5 In section 2.6.27(10)(b)(iv), for "committal hearing" substitute "committal proceeding". 48.6 In section 2.6.29(5), after "quashed" (wherever occurring) insert "or set aside". 49 Electricity Industry Act 2000 49.1 In the note at the foot of section 93A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 49.2 In section 97(6), for "defendant" (wherever occurring) substitute "accused". 50 Environment Protection Act 1970 50.1 In section 19G(1), for "defendant" substitute "accused". 50.2 In section 19G(4), for "charge" substitute "charge-sheet". 50.3 In section 27(1), (1A), (1B) and (2), for "defendant" substitute "accused". 50.4 In the penalty at the foot of section 27A(1), for "defendant" substitute "accused". Sch. -- 192 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 181 50.5 In the penalty at the foot of section 27A(2), for "defendant" substitute "accused". 50.6 In section 42A(7), for "defendant" substitute "accused". 50.7 In section 42A(8)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 50.8 In section 42A(9) and (11), for "defendant" substitute "accused". 50.9 In section 42B(7), (10) and (14), for "defendant" (wherever occurring) substitute "accused". 50.10 In section 43, for "defendant" substitute "accused". 50.11 In section 45D(2), for "filing the charge" substitute "filing the charge-sheet containing the charge". 50.12 In section 45G(3), for "charge" (wherever occurring) substitute "charge-sheet". 50.13 In section 45G(4), for "charge" substitute "charge-sheet". 50.14 In the heading to section 45J, for "charges" substitute "infringement notice or charge- sheet". 50.15 In section 45J(1), for "charge" (wherever occurring) substitute "charge-sheet". 50.16 In section 48(3), for "defendant" substitute "accused". 50.17 In section 48D(4), for "defendant" substitute "accused". Sch. -- 193 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 182 50.18 In section 53A(3), for "defendant" substitute "accused". 50.19 In the penalty at the foot of section 53Q, for "defendant" substitute "accused". 50.20 In section 55A(4), for "defendant" substitute "accused". 50.21 In section 55AC(3), for "defendant" substitute "accused". 50.22 In section 55B(4), for "defendant" substitute "accused". 50.23 In section 57D(3), for "defendant" (wherever occurring) substitute "accused". 50.24 In section 58(3), for "defendant" (wherever occurring) substitute "accused". 50.25 In section 59AD(1), for "Subdivision 3 of Division 2 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009". 50.26 In section 59AD(2)— (a) for "Subdivision 3 of Division 2 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009"; and (b) paragraph (a) is repealed. 51 Equal Opportunity Act 1995 51.1 In section 196, for "defendant" (wherever occurring) substitute "accused". 52 Equipment (Public Safety) Act 1994 52.1 In the note at the foot of section 19(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 194 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 183 52.2 In the note at the foot of section 19A(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 52.3 In the note at the foot of section 19B(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 52.4 In the note at the foot of section 20A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 52.5 In section 28(2), for "charge" substitute "charge- sheet". 53 Estate Agents Act 1980 53.1 In section 70O(3), for "defendant" substitute "accused". 54 Evidence Act 1958 54.1 In section 5, for "defendant" substitute "accused". 54.2 In section 9D, for "defendant" substitute "accused". 54.3 In section 9J, for "defendant" substitute "accused". 54.4 In section 32AB, for "Divisions 3 and 3AA" substitute "Division 3". 54.5 In section 32G(1)(a) omit "37A,". 54.6 In section 32G(1)(b), for "1991." substitute "1991; or". Sch. -- 195 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 184 54.7 After section 32G(1)(b) insert— "(c) Part 8.2 of the Criminal Procedure Act 2009.". 54.8 Section 37A is repealed. 54.9 Section 37B is repealed. 54.10 Section 37C is repealed. 54.11 Section 37CAA is repealed. 54.12 Section 37CA is repealed. 54.13 Section 37D is repealed. 54.14 Section 37E is repealed. 54.15 Division 3AA of Part II is repealed. 54.16 Division 3A of Part II is repealed. 54.17 For section 42BA(2)(a)(v) substitute— "(v) the prosecution of the offence is discontinued;". 54.18 In section 42BR(2), for "defendant" substitute "accused". 54.19 In section 42C— (a) for the definition of accused person substitute— "accused has the same meaning as in the Criminal Procedure Act 2009;"; (b) in the definition of child, in paragraph (b), for "sentencing order" substitute "sentence"; (c) in the definition of remote point, in paragraph (b), for "accused person" substitute "accused"; (d) insert the following definition— "appear includes attend;". Sch. -- 196 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 185 54.20 In section 42D, for "accused person" substitute "accused". 54.21 In section 42F(6), for "accused person" substitute "accused". 54.22 In section 42I, for "section 37B, 37C or 37D" (wherever occurring) substitute "Part 8.2 of Chapter 8 of the Criminal Procedure Act 2009". 54.23 In the heading to Division 3 of Part IIA, for "accused persons" substitute "the accused". 54.24 In section 42J, for "accused person" substitute "accused". 54.25 Insert the following heading to section 42K— "Appearance of adult accused before court". 54.26 In section 42K(1), for "accused person" substitute "accused". 54.27 In section 42K(2), for "accused person" (wherever occurring) substitute "accused". 54.28 In section 42K(3), for "accused person" substitute "accused". 54.29 In section 42K(4), for "accused person" substitute "accused". 54.30 In section 42L(1), for "accused person" (wherever occurring) substitute "accused". 54.31 In section 42L(2), for "accused person" (wherever occurring) substitute "accused". 54.32 In section 42L(5), for "accused person" substitute "accused". 54.33 In section 42M(1), for "accused person" substitute "accused". 54.34 In section 42M(3), for "accused person" (wherever occurring) substitute "accused". Sch. -- 197 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 186 54.35 In section 42M(5) and (8), for "accused person" substitute "accused". 54.36 In section 42N(1), for "accused person" (wherever occurring) substitute "accused"; 54.37 In section 42N(3), for "accused person" substitute "accused". 54.38 Insert the following heading to section 42O— "Appearance before court of accused who is a child". 54.39 In section 42O, for "accused person" substitute "accused". 54.40 For section 42Q(2)(c) substitute— "(c) in relation to the Magistrates' Court, means the Chief Magistrate; (d) in relation to the Children's Court, means the President.". 54.41 In section 42R(1), for "accused person" substitute "accused". 54.42 In section 42R(2)— (a) for "accused person" substitute "accused"; and (b) omit "or stating an intention to reserve their plea". 54.43 In section 42R(3), for "accused person" substitute "accused". 54.44 In section 42S, for "accused person" substitute "accused". 54.45 In section 42T, for "accused person" (wherever occurring) substitute "accused". 54.46 In section 42V, for "accused person" (wherever occurring) substitute "accused". Sch. -- 198 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 187 54.47 In section 42X, for "accused person" substitute "accused". 54.48 In section 151, after "trial" insert "hearing". 54.49 Section 152(1)(a) and (b) are repealed. 54.50 Section 152(2)(aa) is repealed. 54.51 At the end of Part VIII insert— "163 Transitional provision—Criminal Procedure Act 2009 (1) Sections 55B(5) and 144 as amended by section 435(7) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(7) of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(7) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". 55 Evidence Act 2008 55.1 In the heading to section 17, for "defendants" substitute "accused". 55.2 In section 17(2), for "A defendant" substitute "An accused". 55.3 In section 17(3)— (a) for "associated defendant" (wherever occurring) substitute "associated accused"; and (b) for "a defendant" substitute "an accused"; and (c) for "the defendant" substitute "the accused". Sch. -- 199 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 188 55.4 In section 17(4), for "defendant" (wherever occurring) substitute "accused". 55.5 In section 18(2)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 55.6 In section 18(6), for "defendant" substitute "accused". 55.7 In section 18(7), for "defendant" (wherever occurring) substitute "accused". 55.8 In section 20(2) and (4), for "defendant" (wherever occurring) substitute "accused". 55.9 In section 20(3)— (a) for "defendant's spouse or de facto partner" substitute "spouse or de facto partner of the accused"; and (b) for "defendant" substitute "accused". 55.10 In example 1 at the foot of section 59, for "defendant" substitute "accused". 55.11 In section 65(3), for "defendant" substitute "accused". 55.12 In section 65(4)— (a) for "one defendant" substitute "one accused"; and (b) for "a defendant" substitute "an accused". 55.13 In section 65(5)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". Sch. -- 200 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 189 55.14 In section 65(8), for "a defendant" (wherever occurring) substitute "an accused". 55.15 In section 65(9), for "a defendant" substitute "an accused". 55.16 In section 73(2)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused"; and (c) for "the defendant's intention" substitute "the intention of the accused". 55.17 In the heading to section 85, for "defendants" substitute "accused". 55.18 In section 85(1)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 55.19 In section 86— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 55.20 In section 90, for "a defendant" substitute "an accused". 55.21 In section 101— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". Sch. -- 201 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 190 55.22 In section 104(2)— (a) for "A defendant" substitute "An accused"; and (b) for "the defendant's credibility" substitute "the credibility of the accused". 55.23 In section 104(3) and (4), for "the defendant" substitute "the accused". 55.24 In section 104(5), for "the defendant" (wherever occurring) substitute "the accused". 55.25 In section 104(6), for "defendant" (wherever occurring) substitute "accused". 55.26 In the heading to section 105, for "defendants" substitute "accused". 55.27 In section 108B— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) for "Another defendant" substitute "Another accused". 55.28 In the heading to section 110, for "accused persons" substitute "an accused". 55.29 In section 110— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 55.30 In section 111— (a) for "a defendant's character" substitute "the character of an accused"; and (b) for "defendant" (wherever occurring) substitute "accused". Sch. -- 202 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 191 55.31 In section 112, for "A defendant" substitute "An accused". 55.32 In section 114, for "defendant" (wherever occurring) substitute "accused". 55.33 In section 115— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's appearance" (wherever occurring) substitute "appearance of the accused". 55.34 In the heading to section 123, for "defendants" substitute "accused". 55.35 In section 123— (a) for "a defendant" substitute "an accused"; and (b) for "associated defendant" (wherever occurring) substitute "associated accused". 55.36 In section 128(9)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 55.37 In section 128(10)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 55.38 In section 130(5), for "a defendant" (wherever occurring) substitute "an accused". 55.39 In section 137, for "defendant" substitute "accused". 55.40 In section 141(2), for "a defendant" substitute "an accused". Sch. -- 203 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 192 55.41 In section 165(1)(f)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 55.42 In section 165B, for "defendant" (wherever occurring) substitute "accused". 55.43 In section 184— (a) for "a defendant" substitute "an accused"; and (b) for "A defendant's admission or consent" substitute "An admission made by or a consent given by an accused"; and (c) for "the defendant" (wherever occurring) substitute "the accused"; and (d) for "the defendant's Australian legal practitioner or legal counsel" substitute "the Australian legal practitioner or legal counsel of the accused". 55.44 In section 189(3)— (a) for "a defendant's admission" substitute "an admission made by an accused"; and (b) for "the defendant" substitute "the accused". 55.45 In section 189(5)(a), for "defendant" substitute "accused". 55.46 In section 190(2)— (a) for "a defendant's consent" substitute "a consent given by an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and Sch. -- 204 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 193 (c) for "the defendant's Australian legal practitioner or legal counsel" substitute "the Australian legal practitioner or legal counsel of the accused". 55.47 In Part 1 of the Dictionary, in the definition of associated defendant— (a) for "associated defendant" substitute "associated accused"; and (b) for "a defendant" substitute "an accused"; and (c) for "the defendant" (wherever occurring) substitute "the accused". 55.48 In Part 1 of the Dictionary, in the definition of identification evidence— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 55.49 In Part 2 of the Dictionary, in clause 7(3), for "a defendant" substitute "an accused". 56 Fair Trading Act 1999 56.1 In section 14(2) and (3), for "defendant" (wherever occurring) substitute "accused". 56.2 In the note at the foot of section 22(2A)— (a) for "Section 130 of the Magistrates' Court Act 1989" substitute "Section 72 of the Criminal Procedure Act 2009"; and (b) for "defendant" (wherever occurring) substitute "accused". 56.3 In section 24(2), for "defendant" (wherever occurring) substitute "accused". 56.4 In section 126(3), for "defendant" substitute "accused". Sch. -- 205 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 194 56.5 In section 142, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009". 56.6 In section 155(1)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's control" substitute "control of the accused". 56.7 In section 155(2)— (a) for "the defendant" (wherever occurring) substitute "the accused"; and (b) for "a defendant" substitute "an accused". 56.8 In section 155(3)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's possession" substitute "possession of the accused". 56.9 In section 155(4), for "defendant" (wherever occurring) substitute "accused". 56.10 In section 158(1)(a), for "defendant" substitute "accused". 56.11 In section 158(2), for "defendant" (wherever occurring) substitute "accused". 56.12 In section 158(3), for "a defendant" substitute "an accused". 57 Family Violence Protection Act 2008 57.1 In section 31(1)(b), for "appear" substitute "attend". 57.2 In section 32(d), for "appear" substitute "attend". 57.3 In section 122(4), for "appear" substitute "attend". Sch. -- 206 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 195 57.4 In section 150(2)(a), for "defendant" substitute "accused". 57.5 In section 222(1)(a), for "defendant" substitute "accused". 58 Fisheries Act 1995 58.1 In section 56(8)(a), for "charge for an offence" substitute "charge-sheet charging an offence". 58.2 In section 106(5), for "defendant or its owner" substitute "person found guilty of the offence or the owner of the thing". 58.3 Section 122(4) and the note at the foot of that subsection are repealed. 58.4 In section 123(11), for "defendant" substitute "accused". 58.5 In section 123A(2), for "defendant" substitute "accused". 58.6 In section 123A(3), for "defendant" (wherever occurring) substitute "accused". 59 Food Act 1984 59.1 In section 17E(3)— (a) for "the defendant" (wherever occurring) substitute "the accused"; and (b) for "a defendant" substitute "an accused". 59.2 In section 17F, for "defendant" substitute "accused". 59.3 Insert the following heading to section 46— "Right of accused to have third person before court". 59.4 In section 46(1), for "A defendant" substitute "An accused". Sch. -- 207 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 196 59.5 In section 46(2)— (a) for "A defendant" substitute "An accused"; and (b) for "charge against the other person for" substitute "charge-sheet charging the other person with". 59.6 In section 46(3)— (a) for "any charge filed" substitute "a charge issued in relation to a charge-sheet filed"; and (b) for "the charge is filed to appear" substitute "the charge-sheet is filed to attend". 59.7 In section 46(4), for "defendant" (wherever occurring) substitute "accused". 59.8 In section 48(1)(b), for "defendant" substitute "accused". 59.9 Insert the following heading to section 49— "Liability of accused for certain costs and expenses". 59.10 In section 50(1)(i), for "a defendant" substitute "an accused". 59.11 In section 50(2)(b), for "defendant" substitute "accused". 59.12 In section 52B, for "defendant" (wherever occurring) substitute "accused". 59.13 In section 53B— (a) for "referred to as the defendant" substitute "referred to as the offender"; and (b) for "defendant" (wherever occurring) substitute "offender". Sch. -- 208 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 197 60 Forests Act 1958 60.1 In section 79(5), for "defendant" substitute "accused". 60.2 In section 95H(b), for "defendant" substitute "accused". 61 Fuel Prices Regulation Act 1981 61.1 In section 22(2), for "defendant" substitute "accused". 61.2 In section 26, for "defendant" substitute "accused". 61.3 In section 27(3), for "defendant" (wherever occurring) substitute "accused". 61.4 In section 27(4), for "defendant" substitute "accused". 62 Gambling Regulation Act 2003 62.1 In section 2.2.2(2), for "defendant" substitute "accused". 62.2 In section 2.2.3(6), for "defendant" substitute "accused". 62.3 In the penalty at the foot of section 2.5.2(1), for "defendant's" substitute "offender's". 62.4 In the penalty at the foot of section 2.5.8(4), for "defendant's" substitute "offender's". 62.5 In section 2.5.17(2), for "defendant" substitute "accused". 62.6 In section 2.5.32(2), for "defendant" substitute "accused". 62.7 In section 2.5.35(2), for "defendant" substitute "accused". 62.8 In section 2.5.36(2), for "defendant" substitute "accused". Sch. -- 209 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 198 62.9 In section 2.5.42(2), for "action, presentment, indictment or charge" substitute "action or charge for an offence". 62.10 In section 2.5A.13(2)(b), for "defendant" substitute "accused". 62.11 In section 3.5.11(3), for "defendant" (wherever occurring) substitute "accused". 62.12 In section 3.5.21(2), for "defendant" substitute "accused". 62.13 In section 7.5.7(3), for "the document was false, misleading or incomplete to the defendant's knowledge" substitute "the accused knew that the document was false, misleading or incomplete". 62.14 In section 10.5.27(4), for "defendant" (wherever occurring) substitute "accused". 62.15 In section 10.5.27(5), for "defendant" (wherever occurring) substitute "accused". 62.16 In section 10.5.27(6), for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009". 62.17 In section 10.5.32(1A), for "defendant" substitute "accused". 62.18 In section 10.7.12(1)(b), for "defendant" substitute "accused". 63 Gas Industry Act 2001 63.1 In the note at the foot of section 149A, for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 63.2 In section 208(4), for "defendant" (wherever occurring) substitute "accused". Sch. -- 210 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 199 64 Goods Act 1958 64.1 After section 122 insert— "123 Transitional—Criminal Procedure Act 2009 (1) Sections 75 and 78 as amended by section 435(5) of the Criminal Procedure Act 2009 apply to an offence alleged to have been committed on or after the commencement of section 435(5) of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(5) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". 65 Health Professions Registration Act 2005 65.1 In section 108(3), for "defendant" substitute "accused". 66 Heritage Act 1995 66.1 In section 132(3), for "defendant" substitute "accused". 66.2 In section 134(2), for "defendant" substitute "accused". 67 Housing Act 1983 67.1 In section 42(3), for "charge" substitute "charge- sheet". 67.2 In Schedule 5, in clause 6, for "charge" (wherever occurring) substitute "charge-sheet". 68 Impounding of Livestock Act 1994 68.1 In the heading to section 33A, for "charges" substitute "charge-sheets". Sch. -- 211 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 200 68.2 In section 33A, for "charge for an offence" substitute "charge-sheet charging an offence". 69 Imprisonment of Fraudulent Debtors Act 1958 69.1 In section 28A(2)— (a) for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009"; and (b) for "section 83" substitute "section 254". 70 Infringements Act 2006 70.1 In the heading to section 4, after "1989" insert "and Criminal Procedure Act 2009". 70.2 In section 4(1), after "1989" insert "and the Criminal Procedure Act 2009". 70.3 After section 4(2) insert— "(3) Expressions used in this Act and in the Criminal Procedure Act 2009 that are not defined in section 3 or elsewhere in this Act have the same meanings as in the Criminal Procedure Act 2009.". 70.4 In section 17(3), for "charge" substitute "charge- sheet". 70.5 In section 25(1)(d), for "charge" substitute "charge-sheet". 70.6 In section 25(3), for "charge" substitute "charge- sheet". 70.7 In section 40(1)(b), for "charge in relation to" substitute "charge-sheet, filed with the Court, charging". 70.8 In section 40(1)(c)(i), for "offence" substitute "charge". 70.9 In section 40(3), for "charge" substitute "charge- sheet". Sch. -- 212 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 201 70.10 In the note at the foot of section 40(3), for "section 41 of, and clause 7 of Schedule 2 to, the Magistrates' Court Act 1989" substitute "sections 80 and 85 of the Criminal Procedure Act 2009". 70.11 In section 40A, for "section 53 of the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 70.12 In section 41, for "defendant" (wherever occurring) substitute "accused". 70.13 In section 53(2), for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 70.14 In section 54(2)(d)(i), for "charge in respect of" substitute "charge-sheet charging". 70.15 In section 56, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 70.16 In section 71(1)(b), for "charge in relation to" substitute "charge-sheet, filed with the Court, charging". 70.17 In section 71(2), for "charge" substitute "charge- sheet". 70.18 In the note at the foot of section 71(2), for "section 41 of, and clause 7 of Schedule 2 to, the Magistrates' Court Act 1989" substitute "sections 80 and 85 of the Criminal Procedure Act 2009". 70.19 In section 71A, for "section 53 of the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 213 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 202 70.20 In the note at the foot of section 72(2), for "section 41 of, and clause 7 of Schedule 2 to, the Magistrates' Court Act 1989" substitute "sections 80 and 85 of the Criminal Procedure Act 2009". 70.21 In section 73, for "defendant" (wherever occurring) substitute "accused". 70.22 In section 156(1), for "charge" substitute "charge- sheet". 70.23 In section 156(3)— (a) for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009"; and (b) for "filing of a charge" substitute "filing of a charge-sheet"; and (c) for "section 28(1)" substitute "section 12". 70.24 In section 159(2)(a), for "appear" substitute "attend". 71 Interpretation of Legislation Act 1984 71.1 In section 57(5), for "a presentment, charge" substitute "an indictment, charge-sheet". 72 Judicial Proceedings Reports Act 1958 72.1 In section 3(1)(c), for "section 5 of the Crimes (Criminal Trials) Act 1993" substitute "Part 5.5 or 5.6 of Chapter 5 of the Criminal Procedure Act 2009". 72.2 In section 3(1B), for "section 5 of the Crimes (Criminal Trials) Act 1993" substitute "Part 5.5 or 5.6 of Chapter 5 of the Criminal Procedure Act 2009". Sch. -- 214 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 203 72.3 In section 3(1E)— (a) after "trial" insert "or hearing"; and (b) after "tried" insert "or heard". 73 Juries Act 2000 73.1 In section 3(1), in the definition of criminal trial omit "or presentment". 73.2 In section 48(3)— (a) for "accused persons" substitute "accused"; and (b) for "counts in the presentment" substitute "charges on the indictment". 73.3 In section 76(2)— (a) for "defendant's action" substitute "action of the accused"; and (b) for "defendant" substitute "accused". 74 Land Act 1958 74.1 In section 31(2), for "charge" substitute "charge- sheet charging an offence". 75 Landlord and Tenant Act 1958 75.1 In section 104(1), for "defendant" substitute "accused". 76 Legal Aid Act 1978 76.1 In section 34(1A), for "trial" substitute "trial, criminal hearing". 76.2 In section 35(1A), for "trial" substitute "trial, criminal hearing". 76.3 In section 36(1A), for "trial" substitute "trial, criminal hearing". Sch. -- 215 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 204 77 Legal Profession Act 2004 77.1 In section 1.2.8(2), after "quashing" (wherever occurring) insert "or setting aside". 77.2 In section 2.4.16(4)(d), after "quashed" (wherever occurring) insert "or set aside". 77.3 In section 2.8.27(4), after "quashed" (wherever occurring) insert "or set aside". 77.4 In section 7.2.10(1), for "charge against a person for an offence" substitute "charge-sheet charging a person with an offence". 78 Liquor Control Reform Act 1998 78.1 In section 90(3), for "section 53(1) of the Magistrates' Court Act 1989" substitute "section 28(1) of the Criminal Procedure Act 2009". 78.2 In section 136(2), for "charge" substitute "charge- sheet". 78.3 In section 148F(5), for "Section 130 of the Magistrates' Court Act 1989" substitute "Section 72 of the Criminal Procedure Act 2009". 78.4 In section 148J(5), for "Section 130 of the Magistrates' Court Act 1989" substitute "Section 72 of the Criminal Procedure Act 2009". 79 Livestock Disease Control Act 1994 79.1 Insert the following heading to section 132— "Power to file charge-sheets under this Act". 79.2 In section 132, for "charge for an offence" substitute "charge-sheet charging an offence". 79.3 In the heading to section 132A, for "filing certain charges" substitute "charging certain offences". Sch. -- 216 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 205 79.4 In section 132A, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 80 Local Government Act 1989 80.1 In section 29(8), after "quashed" insert "or set aside". 80.2 In section 57(2)— (a) for "defendant" substitute "accused"; and (b) for "he or she" substitute "the accused". 81 Long Service Leave Act 1992 81.1 In section 80(5), for "charge" substitute "charge- sheet charging an offence". 81.2 In section 153(3)— (a) for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009"; and (b) for "sentencing order made" substitute "sentence imposed". 81.3 In section 159(1)(b), for "charge" substitute "charge-sheet". 82 Magistrates' Court Act 1989 82.1 In section 3(1) insert the following definitions— "accused has the same meaning as in the Criminal Procedure Act 2009; sentence has the same meaning as in the Criminal Procedure Act 2009; sexual offence has the same meaning as in the Criminal Procedure Act 2009;". Sch. -- 217 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 206 82.2 In section 3(1)— (a) in the definition of appropriate registrar, for "clause 1(2B) of Schedule 2" substitute "an order made under section 31 of the Criminal Procedure Act 2009"; (b) in the definition of defendant, paragraph (a) is repealed; (c) the definition of election date is repealed; (d) in the definition of prescribed, after "regulations" insert "unless required to be prescribed by rules of court"; (e) in the definition of proper venue— (i) in paragraph (a), for "defendant" substitute "accused"; and (ii) in paragraph (c), for "defendant" substitute "accused, defendant or respondent (within the meaning of the Family Violence Protection Act 2008)"; (f) the definition of return date is repealed. 82.3 In section 4B(1)— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "defendant's usual place of residence" substitute "usual place of residence of the accused". 82.4 In section 4D(5), for "defendant" (wherever occurring) substitute "accused". 82.5 In section 4E(b)— (a) for "sentencing order made" substitute "sentence imposed"; and Sch. -- 218 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 207 (b) for "sentencing order" (where secondly occurring) substitute "sentence". 82.6 In section 4F(1)— (a) for "sentencing order made" substitute "sentence imposed"; and (b) for "defendant" (wherever occurring) substitute "accused". 82.7 In section 4G(1), for "sentencing order to make in respect of a defendant" substitute "sentence to impose on an accused". 82.8 In section 4G(3)(e), for "defendant" substitute "accused". 82.9 In section 4I(4)(b), for "defendant" substitute "accused, defendant or respondent (within the meaning of the Family Violence Protection Act 2008)". 82.10 In section 4K(1)(b), for "defendant" substitute "accused, defendant or respondent (within the meaning of the Family Violence Protection Act 2008)". 82.11 The note at the foot of section 4K(6) is repealed. 82.12 At the foot of section 4K insert— "Notes 1 For party to a proceeding, see section 3(1). 2 If a witness is the complainant in a criminal proceeding, Divisions 4 and 6 of Part 8.2 of Chapter 8 of the Criminal Procedure Act 2009 also apply.". 82.13 In section 4L(2)(a), for "defendant" substitute "accused, defendant or respondent (within the meaning of the Family Violence Protection Act 2008)". 82.14 In section 4O(2)(a), for "defendant" substitute "accused". Sch. -- 219 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 208 82.15 In section 4O(3)(c)— (a) for "sentencing order made" substitute "sentence imposed"; and (b) for "sentencing order" (where secondly occurring) substitute "sentence". 82.16 In section 4Q(1), for "sentencing order to make in respect of a defendant" substitute "sentence to impose on an accused". 82.17 In section 16(1A)(b), for "charges" substitute "charge-sheets". 82.18 In section 16(1A)(ca), for "section 50A" substitute "Division 3 of Part 3.3 of Chapter 3 of the Criminal Procedure Act 2009". 82.19 In section 16(1A)(i), for "section 56A" substitute "Part 4.3 of Chapter 4 of the Criminal Procedure Act 2009". 82.20 Section 16(1A)(k) is repealed. 82.21 In section 16(1A)(la), for "clause 8(1)(b) of Schedule 5" substitute "item 30 of Schedule 3 to the Criminal Procedure Act 2009". 82.22 For section 16(1A)(t) substitute— "(t) the matters to be considered in determining the last known place of residence or business of a person for the purpose of service of a document on the person in a criminal proceeding;". 82.23 After section 16(1A) insert— "(1AB) Rules made under subsection (1A) must not be inconsistent with the Criminal Procedure Act 2009.". Sch. -- 220 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 209 82.24 For section 21(1)(c) substitute— "(c) if a person has been granted bail in relation to a criminal proceeding, power to extend the bail of the person attending on a day on which the criminal proceeding is listed before the Court;". 82.25 In section 25(1)(c), for "defendant" (wherever occurring) substitute "accused". 82.26 Before section 29 insert the following heading— "Division 2—Procedure". 82.27 For section 43(5) substitute— "(5) A witness summons must be served a reasonable time before the day on which the proceeding is listed before the Court. (5A) A witness summons must be served by— (a) giving a copy of the summons to the person to be served; or (b) if the person does not accept the copy, putting the copy down in the person's presence and telling the person the nature of the summons; or (c) leaving a copy of the summons for the person at the person's last known or usual place of residence or business with a person who appears to be of or over the age of 16 years. (5B) If the person to be served is a company or registered body (within the meaning of the Corporations Act), a witness summons may be served on the company or body in accordance with section 109X or 601CX of that Act, as the case requires.". Sch. -- 221 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 210 82.28 After section 57(7) insert— "(7A) The registrar of the County Court may issue a warrant to imprison in the circumstances set out in section 266(3A) of the Criminal Procedure Act 2009. (7B) The registrar of the County Court or the prothonotary of the Supreme Court may issue a warrant to detain in a youth justice centre or a youth residential centre in the circumstances set out in section 430C(5) of the Children, Youth and Families Act 2005.". 82.29 Section 61(1)(a) is repealed. 82.30 Section 61(4) is repealed. 82.31 Section 61(5)(a) and (c) are repealed. 82.32 In section 65(1), for "a defendant" substitute "an accused". 82.33 In section 65(2), for "charge" (wherever occurring) substitute "charge-sheet". 82.34 In section 65(5), for "charge for" substitute "charge-sheet charging". 82.35 In section 73(1)(a), for "defendant" substitute "accused". 82.36 In section 79(1)— (a) for "a defendant" (wherever occurring) substitute "an accused"; and (b) for "section 49(1)(c)" substitute "section 333(1)(c) of the Criminal Procedure Act 2009". 82.37 In section 79(2), for "a defendant" substitute "an accused". Sch. -- 222 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 211 82.38 In section 81(a)(iii), for "section 49(1)(c)" substitute "section 333(1)(c) of the Criminal Procedure Act 2009". 82.39 In section 82(1)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 82.40 In section 82(2)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused". 82.41 In section 126(5) omit "(not exceeding 7 days)". 82.42 For section 126(6) substitute— "(6) The Court may set aside or vary an order made under subsection (2)(d) on an application made by any person, whether or not a party to the proceeding pending in the Court.". 82.43 In section 126A(4), for "a defendant" substitute "an accused". 82.44 In section 127(1)(b), after "the" insert "accused or the". 82.45 Section 127(1)(ba) is repealed. 82.46 At the end of section 127(1) insert— "Note Section 336A of the Criminal Procedure Act 2009 provides that a victim of an offence is entitled to be present in court unless the court orders the victim to leave.". 82.47 Section 128A is repealed. 82.48 In section 129(1), for "appearing" substitute "attending". Sch. -- 223 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 212 82.49 In section 129(2), for "appears" substitute "attends". 82.50 Section 130 is repealed. 82.51 In section 131(3), for "defendant" (wherever occurring) substitute "accused". 82.52 In section 134(4)(a)— (a) for "section 128(2)" substitute "section 331 of the Criminal Procedure Act 2009"; and (b) for "a defendant" substitute "an accused". 82.53 For section 139 substitute— "139 Manner of service where none is prescribed (1) If by or under this Act a person is required to serve a document and no provision is made, other than in this section, as to how the document is to be served, the document must be served by— (a) giving a copy of the document to the person to be served; or (b) if the person does not accept the copy, putting the copy down in the person's presence and telling the person the nature of the document; or (c) leaving a copy of the document for the person at the person's last known or usual place of residence or business with a person who appears to be of or over the age of 16 years. (2) If the person to be served is a company or registered body (within the meaning of the Corporations Act), a document may be served on the company or body in accordance with section 109X or 601CX of that Act, as the case requires.". Sch. -- 224 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 213 82.54 Section 139A(1A), (3) and (4) are repealed. 82.55 Section 140(1)(e), (f) and (g) are repealed. 82.56 In section 140(2B)(a)(iii), for "prescribed offence within the meaning of Schedule 7" substitute "infringement offence within the meaning of the Infringements Act 2006". 82.57 In section 140(2B)(a)(iv), for "infringement notice or penalty notice within the meaning of Schedule 7" substitute "infringement notice within the meaning of the Infringements Act 2006". 82.58 In section 140(2B)(a)(v), for "Schedule 7" substitute "the Infringements Act 2006". 82.59 At the end of Schedule 8 insert— "43 The amendment of this Act by section 426 of the Criminal Procedure Act 2009 applies to a committal proceeding if the relevant criminal proceeding commenced on or after the commencement of section 426 of that Act. 44(1) Section 118 as amended by section 435(1) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(1) of that Act. (2) For the purposes of subclause (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(1) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". 83 Major Sporting Events Act 2009 83.1 In section 59(1)(b) and (2)(b), for "defendant" substitute "accused". Sch. -- 225 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 214 83.2 In the heading to section 167, for "Charges" substitute "Charge-sheets". 83.3 In section 167, for "charge for" substitute "charge-sheet charging". 84 Marine Act 1988 84.1 In section 22(4), for "defendant" (wherever occurring) substitute "accused". 84.2 In section 28(5A), for "defendant" substitute "accused". 84.3 In section 28C(1), for "making of the charge" substitute "filing or signing of the charge-sheet charging the offence in accordance with section 6 of the Criminal Procedure Act 2009". 84.4 In section 61(4) omit "(whether pursuant to Schedule 3 to the Magistrates' Court Act 1989 or otherwise)". 84.5 In section 61A(6)(b) and (7)(c), for "a charge filed for" substitute "filing a charge-sheet charging". 84.6 In section 61B(3)(d), for "a charge filed for" substitute "filing a charge-sheet charging". 84.7 In section 61B(4), for "charge" substitute "charge-sheet". 84.8 In section 62(4), for "defendant" (wherever occurring) substitute "accused". 84.9 In section 62(5)— (a) for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009". (b) for "defendant" (wherever occurring) substitute "accused". 84.10 In the heading to Division 7 of Part 8, for "Sentencing orders" substitute "Sentences". Sch. -- 226 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 215 84.11 In section 110(1), for "subdivision 3 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009". 84.12 Section 110(1)(b) is repealed. 84.13 In section 126(1), for "Division 4 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009". 85 Marine Safety Legislation (Lakes Hume and Mulwala) Act 2001 85.1 In section 4(2)(a), after "trial" insert "or hearing". 86 Mental Health Act 1986 86.1 In section 93Q(3)(a)— (a) for "varied or quashed" substitute "varied, quashed or set aside"; and (b) for "have been quashed" substitute "have been set aside". 87 Mines Act 1958 87.1 Insert the following heading to section 418— "Burden of proof lies on the accused". 87.2 In section 418, for "defendant" substitute "accused". 87.3 After Part III insert— "PART IV—TRANSITIONAL PROVISIONS 422 Transitional—Criminal Procedure Act 2009 (1) Section 400C as amended by section 435(8) of the Criminal Procedure Act 2009 applies to an offence alleged to have been Sch. -- 227 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 216 committed on or after the commencement of section 435(8) of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(8) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement. __________________". 88 Motor Car Traders Act 1986 88.1 In section 50A(6)(b), for "section 83 or 92 of the Magistrates' Court Act 1989" substitute "section 254 or 272 of the Criminal Procedure Act 2009". 88.2 In section 82AM(3), for "defendant" substitute "accused". 89 New Tax System Price Exploitation Code (Victoria) Act 1999 89.1 In section 3, in the definition of instrument— (a) in paragraph (g), for "information or" substitute "charge-sheet filed,"; and (b) in paragraph (h) omit "presentment,". 89.2 In section 24(2)(b), after "trial" insert "or hearing". 90 Occupational Health and Safety Act 2004 90.1 In the note at the foot of section 21(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 228 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 217 90.2 In the note at the foot of section 23(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.3 In the note at the foot of section 24(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.4 In the note at the foot of section 25(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.5 In the note at the foot of section 26(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.6 In the note at the foot of section 27(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.7 In the note at the foot of section 28(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.8 In the note at the foot of section 29(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 229 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 218 90.9 In the note at the foot of section 30(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.10 In the note at the foot of section 31(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.11 In the note at the foot of section 32, for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.12 In the note at the foot of section 40(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.13 In the note at the foot of section 62(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.14 In the note at the foot of section 63(7), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.15 In note 2 at the foot of section 76(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 230 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 219 90.16 In the heading to section 77, for "Defendant" substitute "Accused". 90.17 In section 77— (a) for "defendant's conduct" substitute "conduct of the accused"; and (b) for "defendant" (wherever occurring) substitute "accused". 90.18 In section 78D(3)(a), for "defendant" substitute "accused". 90.19 In section 78E(2)— (a) for "defendant's conduct" substitute "conduct of the accused"; and (b) for "defendant" substitute "accused". 90.20 In section 78E(3), for "defendant" substitute "accused". 90.21 In the note at the foot of section 110(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.22 In the note at the foot of section 111(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.23 In the note at the foot of section 112(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 231 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 220 90.24 In the note at the foot of section 120(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 90.25 In section 130(2), for "charge" substitute "charge- sheet". 90.26 In section 137(2)(a), for "appears" substitute "attends". 90.27 In section 137(4), for "appear" substitute "attend". 90.28 In section 137(5), for "appearance" substitute "attendance". 91 Petroleum (Submerged Lands) Act 1982 91.1 In section 133(3), for "defendant" substitute "accused". 91.2 In Schedule 7, in clause 78, for "defendant" substitute "accused". 92 Plant Health and Plant Products Act 1995 92.1 In section 66, for "charge for an offence" substitute "charge-sheet charging an offence". 92.2 In section 66A, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 93 Police Regulation Act 1958 93.1 In section 52(1), for "presentment" substitute "indictment". 93.2 In section 80(2), for "quashed or otherwise nullified" substitute "set aside". 93.3 In section 96, for "charge" substitute "charge- sheet". Sch. -- 232 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 221 93.4 In section 97, for "charge" substitute "charge- sheet". 93.5 In section 128, for "information" substitute "charge". 94 Pollution of Waters by Oil and Noxious Substances Act 1986 94.1 In section 24C(1), for "Subdivision 3 of Division 2 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009". 95 Prevention of Cruelty to Animals Act 1986 95.1 In section 13(3)(a), for "defendant" (wherever occurring) substitute "accused". 95.2 In section 24ZW(1), for "charge for an offence" substitute "charge-sheet charging an offence". 95.3 In section 35(7)(c), for "charge for any offence" substitute "charge-sheet charging an offence". 95.4 In section 35(8), for "charge for any offence" substitute "charge-sheet charging any offence". 95.5 In section 40— (a) for "charge for an alleged offence" substitute "charge-sheet charging an offence"; and (b) for "charge" (where secondly occurring) substitute "charge-sheet". 95.6 In the heading to section 41AC, for "filing certain charges" substitute "charging certain offences". 95.7 In section 41AC, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". Sch. -- 233 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 222 96 Prisoners (Interstate Transfer) Act 1983 96.1 In section 23(2)(b), after "withdrawn" insert ", the prosecution for the offence is discontinued". 96.2 In section 34(d), for "a charge has been laid" substitute "an offence has been charged". 97 Prohibition of Human Cloning for Reproduction Act 2008 97.1 In section 8(3), for "section 130(1) of the Magistrates' Court Act 1989, a defendant" substitute "section 72(1) of the Criminal Procedure Act 2009, an accused". 98 Prostitution Control Act 1994 98.1 After section 48A(6)(a) insert— "(ab) the prosecution for the offence is discontinued; or". 98.2 After section 54A(6)(a) insert— "(ab) the prosecution for the offence is discontinued; or". 98.3 In section 61P(3), for "defendant" substitute "accused". 99 Public Health and Wellbeing Act 2008 99.1 In section 220, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 100 Radiation Act 2005 100.1 In section 129(1), for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009". Sch. -- 234 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 223 101 Rail Safety Act 2006 101.1 In the note at the foot of section 20(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.2 In the note at the foot of section 21(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.3 In the note at the foot of section 22(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.4 In the note at the foot of section 22A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.5 In the note at the foot of section 23(5), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.6 In the note at the foot of section 27(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.7 In the note at the foot of section 28(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 235 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 224 101.8 In the note at the foot of section 33(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.9 In the note at the foot of section 34(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.10 In the note at the foot of section 48(4), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.11 In the note at the foot of section 68(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.12 In the note at the foot of section 69(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 101.13 In section 76(8), for "defendant" substitute "accused". 101.14 In section 79(9), for "making of the charge" substitute "filing of the charge-sheet charging the offence". 101.15 In section 80(6), for "making of the charge" substitute "filing of the charge-sheet charging the offence". 101.16 In section 81(2)(b), after "proceeded with" insert ", the prosecution for the offence is discontinued". Sch. -- 236 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 225 102 Research Involving Human Embryos Act 2008 102.1 In section 6(4), for "section 130(1) of the Magistrates' Court Act 1989, a defendant" substitute "section 72(1) of the Criminal Procedure Act 2009, an accused". 103 Residential Tenancies Act 1997 103.1 In section 508A, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 104 Road Legislation Amendment Act 2009 104.1 In section 53, in proposed new section 295 of the Road Safety Act 1986, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 105 Road Management Act 2004 105.1 In the note at the foot of section 48G, for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 106 Road Safety Act 1986 106.1 In section 29(1), for "Division 4 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009". 106.2 In section 29(2), for "giving" substitute "filing". 106.3 In section 49(3A), (6) and (6A), for "defendant" substitute "accused". 106.4 In section 49(8) and (9), for "defendant" (wherever occurring) substitute "accused". Sch. -- 237 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 226 106.5 In section 50AAC(1)— (a) for "section 83 of the Magistrates' Court Act 1989" (wherever occurring) substitute "section 254 of the Criminal Procedure Act 2009"; and (b) for "sentencing order" substitute "sentence". 106.6 In section 51(1) and (1A), for "making of the charge" substitute "filing of the charge-sheet charging the offence". 106.7 In section 51(3D), for "charge is laid" substitute "charge-sheet is filed". 106.8 In section 55A(7), for "making of the charge" substitute "filing of the charge-sheet charging the offence". 106.9 In section 55B(5), for "making of the charge" substitute "filing of the charge-sheet charging the offence". 106.10 In section 64(3), for "defendant" (wherever occurring) substitute "accused". 106.11 In section 67(8)— (a) for "a charge filed for" substitute "the filing of a charge-sheet charging"; and (b) for "charge" (where secondly occurring) substitute "charge-sheet". 106.12 In section 77(5), for "charge" substitute "charge- sheet charging the offence". 106.13 In section 77A, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". Sch. -- 238 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 227 106.14 In section 84BH, for "defendant" (wherever occurring) substitute "accused". 106.15 In section 84R(b), for "charge for a relevant offence is laid or such a charge is laid but" substitute "charge-sheet charging a relevant offence is filed or such a charge-sheet is filed but the charge is". 106.16 In section 84S(2)(a), for "defendant" substitute "accused". 106.17 In section 84T(2)(a), for "defendant" substitute "accused". 106.18 In section 84U(2), for "charge is laid in relation to a relevant offence" substitute "charge-sheet charging a relevant offence is filed". 106.19 In section 84X(2)(c), for "charge is laid for" substitute "charge-sheet is filed charging". 106.20 In the heading to section 84Y, for "charges laid" substitute "offences charged". 106.21 In section 84YA(3)(a)(iii), for "charge is laid for" substitute "charge-sheet is filed charging". 106.22 In section 84ZB(1)(a), for "defendant's conviction" substitute "conviction of the accused". 106.23 For section 84ZB(b)(i), (ii) and (iii) substitute— "(i) a sentence under Chapter 6 of the Criminal Procedure Act 2009; or (ii) a sentence under the Children, Youth and Families Act 2005—". 106.24 In section 89(4) omit "(whether pursuant to Schedule 3 to the Magistrates' Court Act 1989 or otherwise)". Sch. -- 239 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 228 106.25 In section 89A(6)(b) and (7)(d), for "a charge filed for the alleged offence" substitute "the filing of a charge-sheet charging the alleged offence". 106.26 In section 89B(3)(f), for "a charge filed for the alleged offence" substitute "the filing of a charge- sheet charging the alleged offence". 106.27 In section 89B(4), for "charge" substitute "charge-sheet". 106.28 In section 90(4), for "defendant" (wherever occurring) substitute "accused". 106.29 In section 90(5)— (a) for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009"; and (b) for "defendant" (wherever occurring) substitute "accused". 106.30 In section 196(4)— (a) for "defendant's action" (wherever occurring) substitute "action of the accused"; and (b) for "defendant" substitute "accused". 106.31 In section 295, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 107 Sale of Land Act 1962 107.1 In section 16(4), for "defendant" substitute "accused". 108 Second-Hand Dealers and Pawnbrokers Act 1989 108.1 In section 26P(3), for "defendant" substitute "accused". Sch. -- 240 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 229 109 Securities Industry Act 1975 109.1 In section 21(6), for "a defendant" substitute "an accused". 109.2 In section 77(1)— (a) for "defendant" substitute "accused"; and (b) for "information" (wherever occurring) substitute "charge-sheet". 109.3 In section 101(7), after "trial" insert "or hearing". 109.4 In section 129(1)— (a) for "defendant" substitute "accused"; and (b) for "defendant" (wherever occurring) substitute "accused". 109.5 In section 129(2), for "a defendant" substitute "an accused". 109.6 In section 129(4), for "defendant" (wherever occurring) substitute "accused". 110 Sentencing Act 1991 110.1 In section 3(1) insert the following definition— "depositions has the same meaning as in the Criminal Procedure Act 2009;". 110.2 In section 5(2C), after "trial" insert "or hearing". 110.3 In section 5(2D), for "Crimes (Criminal Trials) Act 1999" substitute "Part 5.5 of Chapter 5 of the Criminal Procedure Act 2009". 110.4 In section 5(2E), for "section 446(2) of the Crimes Act 1958" substitute "section 302(2) of the Criminal Procedure Act 2009". 110.5 In section 6AF, for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009". Sch. -- 241 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 230 110.6 In section 6C(1)(d), for "counts in the one presentment" substitute "charges in the one indictment". 110.7 In section 6C(4), for "Section 395 of the Crimes Act 1958" substitute "Division 2 of Part 5.8 of Chapter 5 of the Criminal Procedure Act 2009". 110.8 In section 6F(2)— (a) for "or the Crimes Act 1958" substitute "or the Criminal Procedure Act 2009"; and (b) for "certified statement of conviction issued under section 395 of the Crimes Act 1958" substitute "criminal record filed under Division 2 of Part 5.8 of Chapter 5 of the Criminal Procedure Act 2009". 110.9 In section 6J(2)— (a) for "or the Crimes Act 1958" substitute "or the Criminal Procedure Act 2009"; and (b) for "certified statement of conviction issued under section 395 of the Crimes Act 1958" substitute "criminal record filed under Division 2 of Part 5.8 of Chapter 5 of the Criminal Procedure Act 2009". 110.10 Insert the following heading to section 7— "Sentences". 110.11 In section 13(4), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009". 110.12 In section 18O(3)(b), for "quash" substitute "set aside". 110.13 In section 18O(4), for "quashing" substitute "setting aside". Sch. -- 242 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 231 110.14 In section 18P(3), for "section 361 of the Crimes Act 1958" substitute "section 332 of the Criminal Procedure Act 2009". 110.15 In section 18W(1), for "charge" substitute "charge-sheet". 110.16 In section 18W(3), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". 110.17 In section 18W(3)(a)— (a) for "filing of a charge" substitute "filing of a charge-sheet"; and (b) for "section 28(1)" substitute "section 12(1)". 110.18 In section 18W(3)(b) and (3)(c), for "defendant" substitute "accused". 110.19 In section 18Z(2)(c) and (4)(a)(ii), for "sentencing order" substitute "sentence". 110.20 In section 18ZQ(1)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 110.21 In section 18ZQ(2), for "defendant" (wherever occurring) substitute "accused". 110.22 In section 18ZQ(3)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" substitute "the accused". 110.23 For section 18ZQ(4) substitute— "(4) A drug treatment order assessment report may set out all or any of the following matters which, on investigation, appear to the specified Drug Court officer to be Sch. -- 243 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 232 relevant to the assessment of the accused and are readily ascertainable by the officer— (a) the age of the accused; (b) the social history and background of the accused; (c) the medical and psychiatric history of the accused, including details of any treatment the accused has undergone for drug or alcohol dependency; (d) the educational background of the accused; (e) the employment history of the accused; (f) the circumstances of any other offences of which the accused has been found guilty; (g) the extent to which the accused— (i) has complied with any sentence that is no longer in force in respect of the accused; and (ii) is complying with any sentence currently in force in respect of the accused; (h) the financial circumstances of the accused; (i) the housing history and needs of the accused; (j) any special needs of the accused; (k) any course, program, treatment, therapy or other assistance that could be available to the offender and from which he or she may benefit.". Sch. -- 244 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 233 110.24 In section 18ZQ(5), for "defendant" substitute "accused". 110.25 In section 18ZQ(7)(b), for "defendant's legal practitioner" substitute "legal practitioner of the accused". 110.26 In section 18ZQ(7)(c), for "defendant" substitute "accused". 110.27 In section 18ZQ(10), for "defendant" substitute "accused". 110.28 In section 18ZR(1)— (a) for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and (b) for "sentencing order made" substitute "sentence imposed"; and (c) for "section 86(1)" substitute "section 256(2) or 259(2) (as the case requires)". 110.29 In section 18ZR(2)— (a) for "Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act, apply" substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009 applies"; and (b) for "sentencing order made" substitute "sentence imposed". 110.30 In section 18ZR(3)— (a) for "Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act," substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009"; and Sch. -- 245 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 234 (b) for "sentencing order made" substitute "sentence imposed". 110.31 In section 18ZR(4)— (a) for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and (b) for "section 86(1)(a) of that Act" (wherever occurring) substitute "section 256(2)(a) or section 259(2)(a) of that Act (as the case requires)". 110.32 In section 18ZR(5)— (a) for "section 83 or 84 of the Magistrates' Court Act 1989" substitute "section 254 or 257 of the Criminal Procedure Act 2009"; and (b) for "sentencing order made" substitute "sentence imposed". 110.33 In section 18ZR(8), for "section 86(1) of the Magistrates' Court Act 1989" substitute "section 256(2)(a) or section 259(2)(a) of the Criminal Procedure Act 2009 (as the case requires)". 110.34 In section 18ZR(9)— (a) for "Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 6.1 of Chapter 6 of the Criminal Procedure Act 2009"; and (b) for "sentencing order made" substitute "sentence imposed". 110.35 In section 26(1), for "charge" substitute "charge- sheet". Sch. -- 246 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 235 110.36 In section 26(2), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". 110.37 In section 26(2)(a)— (a) for "filing of a charge" substitute "filing of a charge-sheet"; and (b) for "section 28(1)" substitute "section 12(1)". 110.38 In section 26(2)(b) and (2)(c), for "defendant" substitute "accused". 110.39 In section 31(1)(d), for "appearance" substitute "attendance". 110.40 In section 31(4)(b), for "section 34 of the Magistrates' Court Act 1989" substitute "section 16 of the Criminal Procedure Act 2009". 110.41 In section 31(4A), for "section 35 of the Magistrates' Court Act 1989" substitute "section 399 of the Criminal Procedure Act 2009". 110.42 In section 31(4F)— (a) for "appearance" substitute "attendance"; and (b) for "defendant" substitute "offender". 110.43 In section 31(4G), for "appears" substitute "attends". 110.44 In section 47(1), for "charge" substitute "charge- sheet". 110.45 In section 47(2), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". Sch. -- 247 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 236 110.46 In section 47(2)(a)— (a) for "filing of a charge" substitute "filing of a charge-sheet"; and (b) for "section 28(1)" substitute "section 12(1)". 110.47 In section 47(2)(b), for "defendant" substitute "accused". 110.48 In section 47(2)(c), for "defendant" substitute "accused". 110.49 In section 72(2)(a), for "appears" substitute "attends". 110.50 In section 72(4), for "appear" substitute "attend". 110.51 In section 72(5), for "appearance" substitute "attendance". 110.52 In section 75(2)(a), for "appears" substitute "attends". 110.53 In section 75(4), for "appear" substitute "attend". 110.54 In section 75(5), for "appearance" substitute "attendance". 110.55 In section 79(1), for "charge" substitute "charge- sheet". 110.56 In section 79(3), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". 110.57 In section 79(3)(a)— (a) for "filing of a charge" substitute "filing of a charge-sheet"; and (b) for "section 28(1)" substitute "section 12(1)". Sch. -- 248 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 237 110.58 In section 79(3)(b) and (3)(c), for "defendant" substitute "accused". 110.59 In section 83A(2)(b), for "appear" substitute "attend". 110.60 In section 83D(1), in the definition for authorised person, for "tried" substitute "heard and determined". 110.61 In section 83G(2), for "quashed" substitute "set aside". 110.62 For section 84(8)(b) and (c) substitute— "(b) the depositions in the committal proceeding.". 110.63 In section 85B(3)— (a) for "count" (where first occurring) substitute "charge"; and (b) for "count charged" substitute "charge". 110.64 In section 85F(1)(b), for "defendant" substitute "accused". 110.65 For section 85F(2)(b) and (c) substitute— "(b) the depositions in the committal proceeding; or". 110.66 For section 86(9)(b) and (c) substitute— "(b) the depositions in the committal proceeding; or". 110.67 In section 87H(1)(b), for "defendant" substitute "accused". 110.68 For section 87H(2)(b) and (c) substitute— "(b) the depositions in the committal proceeding; or". Sch. -- 249 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 238 110.69 In section 89C(1)— (a) for "section 83 of the Magistrates' Court Act 1989" (wherever occurring) substitute "section 254 of the Criminal Procedure Act 2009"; and (b) for "sentencing order" substitute "sentence". 110.70 In section 90(1), after "trial" insert "or hearing". 110.71 In section 91(1), after "trial" insert "or hearing". 110.72 In section 100(1)(a), for "presented for trial" substitute "indicted". 110.73 In section 100(8), omit "quashed or". 110.74 In section 101(2), after "trial" insert "or hearing". 110.75 In section 101(3)(a), for "appearance" substitute "attendance". 110.76 In section 102(1) and (6), after "trial" (wherever occurring) insert "or hearing". 110.77 In section 102(7)— (a) for "passing" substitute "imposing"; and (b) for "pass" substitute "impose". 110.78 In section 102(8), after "trial" insert "or hearing". 110.79 In section 104(1), for "quashing" substitute "setting aside". 110.80 The heading to Part 8 is repealed. 110.81 In section 113(1), for "section 53(1) of the Magistrates' Court Act 1989" substitute "section 28(1) of the Criminal Procedure Act 2009". 110.82 In section 116(1)(f), for "sentencing order" substitute "sentence". Sch. -- 250 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 239 110.83 After section 137 insert— "138 Transitional provision—Criminal Procedure Act 2009 (1) Subject to subsection (2), the maximum fine set out in section 112A, as inserted by section 433 of the Criminal Procedure Act 2009, applies to a sentence imposed on or after the commencement of section 433 of that Act, irrespective of when the criminal proceeding commenced and irrespective of when the Magistrates' Court determined to grant a summary hearing. (2) If— (a) the maximum fine set out in section 112A is greater than the maximum fine that applies to the summary hearing of an indictable offence immediately before the commencement of section 433 of the Criminal Procedure Act 2009; and (b) before the commencement of section 433 of that Act, the Magistrates' Court determined to grant a summary hearing of a charge for the offence— the maximum fine for the offence immediately before that commencement applies. (3) Subject to subsection (4), the maximum fine set out in section 113D(1A) and (1B), as inserted by section 434 of the Criminal Procedure Act 2009, applies to a sentence imposed on or after the commencement of section 434 of that Act, irrespective of when the criminal proceeding commenced and irrespective of when the Magistrates' Court determined to grant a summary hearing. Sch. -- 251 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 240 (4) If— (a) the maximum fine set out in section 113D(1A) is greater than the maximum fine that applies to the summary hearing of an indictable offence immediately before the commencement of section 434 of the Criminal Procedure Act 2009; and (b) before the commencement of section 434 of that Act, the Magistrates' Court determined to grant a summary hearing of a charge for the offence— the maximum fine for the offence immediately before that commencement applies.". 110.84 In Schedule 2, omit "quashed or". 111 Serious Sex Offenders Monitoring Act 2005 111.1 In section 18(1) and (2) omit "quashed or". 111.2 In section 18(3) omit "quashing or". 111.3 In section 25J(1) and (2) omit "quashed or". 111.4 In section 25J(3) omit "quashing or". 111.5 In section 30(1), for "appear" substitute "attend". 111.6 In section 31(4), for "appearance" (wherever occurring) substitute "attendance". 111.7 In section 31(5), for "appearance" substitute "attendance". 111.8 For section 38(1) substitute— "(1) If the offender or the Secretary proposes to appeal under this Part, he or she must, in accordance with the rules of court, file with the Court of Appeal a notice of appeal setting out the grounds of the appeal within— Sch. -- 252 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 241 (a) 28 days after the day on which the relevant decision was made; or (b) any extension of that period granted under section 38A.". 111.9 After section 38 insert— "38A Extension of time for filing notice of appeal The Court of Appeal at any time may extend the time within which notice of appeal may be filed under this Part.". 111.10 In section 39(1)(d), for "quash" substitute "set aside". 111.11 In section 40(1), for "charge" substitute "charge- sheet". 111.12 In section 40(2), for "charge against him or her for" substitute "charge-sheet charging him or her with". 111.13 In section 40(2A), for "charge" substitute "charge-sheet". 111.14 In section 41(1), for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009". 111.15 In section 41(1)(a)— (a) for "charge" substitute "charge-sheet"; and (b) for "section 28(l)" substitute "section 12(1)". 111.16 In section 41(1)(b) and (c), for "defendant" substitute "accused". Sch. -- 253 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 242 112 Sex Offenders Registration Act 2004 112.1 In section 3, in the definition of sentence— (a) for paragraph (a) substitute— "(a) a sentence within the meaning of the Criminal Procedure Act 2009 or the Children, Youth and Families Act 2005, including an order for the adjournment of a proceeding under section 59 of the Criminal Procedure Act 2009; and"; (b) for "defendant" (wherever occurring) substitute "accused". 112.2 In section 8(3)(c), for "counts in the one presentment" substitute "charges in the one indictment". 112.3 In section 48, for "section 26(4) of the Magistrates' Court Act 1989" substitute "section 7(1) of the Criminal Procedure Act 2009". 112.4 In section 53(1)(d), for "section 128A of the Magistrates' Court Act 1989" substitute "section 59 of the Criminal Procedure Act 2009". 112.5 In section 69(1) and (3), for "filing of the charge" substitute "filing of the charge-sheet charging the offence". 113 Shop Trading Reform Act 1996 113.1 In section 8(1)(c), for "defendant" substitute "accused". 114 State Electricity Commission Act 1958 114.1 In the Sixth Schedule, in clause 5, for "charges" substitute "charge-sheets". Sch. -- 254 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 243 115 Summary Offences Act 1966 115.1 In section 5, for "defendant" substitute "accused". 115.2 In section 9(1A), for "defendant" substitute "accused". 115.3 In section 10(2)(a), (5) and (6), for "defendant" substitute "accused". 115.4 In section 24(1)(b), for "a defendant" substitute "an accused". 115.5 In section 25, for "charge for an offence" substitute "charge-sheet charging an offence". 115.6 In section 33(1)(c)(i), for "defendant" substitute "accused". 115.7 In section 37(2), for "defendant" substitute "accused". 115.8 In section 44(3)(a), for "defendant" substitute "accused". 115.9 In section 44A(3)(a), for "defendant" substitute "accused". 115.10 In section 49B(2), for "defendant" (wherever occurring) substitute "accused". 115.11 In section 49D(2), for "defendant" substitute "accused". 115.12 In section 49F(2), for "defendant" substitute "accused". 115.13 In section 50A(6), for "defendant" substitute "accused". 115.14 Section 53(4) is repealed. 115.15 Insert the following heading to section 56— "Who may file charge-sheet". 115.16 In section 56(1), for "charge for a breach of or" substitute "charge-sheet charging". Sch. -- 255 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 244 115.17 In section 57, for "charge in respect of an alleged" substitute "charge-sheet charging an". 115.18 In section 60, for "charge before the court" substitute "charge-sheet before the court". 115.19 After section 62(6) insert— "(7) Section 53 as amended by section 436 of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 436 of that Act. (8) For the purposes of subsection (7), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 436 of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". 116 Supreme Court Act 1986 116.1 In section 17A(3)— (a) for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009"; and (b) omit "or presentment". 116.2 In section 17A(3A)— (a) after paragraph (a) insert— "(ab) under section 272 of the Criminal Procedure Act 2009; or"; and (b) in paragraph (b) omit "92 or". 116.3 In section 17A(4), for "An appeal does not lie" substitute "Subject to subsection (4A), an appeal does not lie". Sch. -- 256 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 245 116.4 After section 17A(4) insert— "(4A) Subsection (4)(b) does not apply to an interlocutory appeal under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009.". 116.5 In section 17A(7), for "An application" substitute "Unless otherwise provided by any other Act, an application". 116.6 For section 19(e) substitute— "(e) cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for a sexual offence within the meaning of the Criminal Procedure Act 2009; or". 116.7 In section 111A(a), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009". 116.8 In section 112(1)(a), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009". 117 Surveillance Devices Act 1999 117.1 In section 30I(3)(a), for "defendant" substitute "accused". 117.2 In section 32(3), for "defendant" substitute "accused". 118 Sustainable Forests (Timber) Act 2004 118.1 In section 90(b), for "defendant" substitute "accused". 119 Terrorism (Community Protection) Act 2003 119.1 In section 23(2), for "defendant" (wherever occurring) substitute "accused". Sch. -- 257 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 246 120 Tobacco Act 1987 120.1 In section 5B(2), for "defendant" (wherever occurring) substitute "accused". 120.2 In section 5D(2), for "defendant" (wherever occurring) substitute "accused". 120.3 In section 15G(2), for "defendant" (wherever occurring) substitute "accused". 121 Trade Measurement Act 1995 121.1 In section 9(3), for "defendant" (wherever occurring) substitute "accused". 121.2 In section 34(1)(b), for "defendant" (wherever occurring) substitute "accused". 121.3 In section 34(2), for "defendant" (wherever occurring) substitute "accused". 121.4 In section 34(3)— (a) for "a defendant" substitute "an accused"; and (b) for "the defendant" (wherever occurring) substitute "the accused"; and (c) for "defendant's possession" substitute "possession of the accused". 121.5 In section 35, for "defendant" (wherever occurring) substitute "accused". 121.6 In section 64(1)(b), for "defendant" substitute "accused". 121.7 In section 73(2), for "defendant" substitute "accused". 122 Trade Unions Act 1958 122.1 In section 9 omit "presentments". 122.2 In section 13 omit "presentment or" (wherever occurring). Sch. -- 258 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 247 122.3 After section 29 insert— "30 Transitional (1) Section 25 as amended by section 435(3) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(3) of that Act. (2) For the purpose of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(3) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". 123 Transport Accident Act 1986 123.1 In section 40A(1)(a)— (a) for "a charge for an offence has been laid" substitute "a charge-sheet charging an offence has been filed"; and (b) for "a charge for an offence may be laid" substitute "a charge-sheet charging an offence may be filed". 123.2 In section 40A(2), for "charge is laid" (wherever occurring) substitute "charge-sheet is filed". 123.3 In section 40A(3)(a), for "charge could be laid" substitute "charge-sheet could be filed". 123.4 In section 120(1)— (a) for "charge for an offence" substitute "charge-sheet charging an offence"; and (b) for "file charges" substitute "file charge- sheets". 123.5 In section 120(1A), for "charge for an offence" substitute "charge-sheet charging an offence". Sch. -- 259 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 248 123.6 In section 139(4)(a)— (a) for "a charge has been laid" substitute "a charge-sheet charging an offence has been filed"; and (b) for "a charge may be laid" substitute "a charge-sheet charging an offence may be filed". 123.7 In section 139(4)(b), for "charge" substitute "offence". 123.8 In section 139(4)(c) and (d), for "charge is laid" substitute "charge-sheet is filed". 124 Transport Act 1983 124.1 In section 130A(3)(a)— (a) omit "a presentment has been made or"; and (b) for "laid" substitute "filed". 124.2 In section 130A(3)(b), for "charge has been filed for the offence" substitute "charge-sheet charging the offence has been filed". 124.3 In section 130A(4)(a), for "entering of a nolle prosequi" substitute "discontinuance of the prosecution". 124.4 In section 130A(4)(c)— (a) for "person against whom the charge has been laid" substitute "person charged"; and (b) for "committal hearing" substitute "committal proceeding". 124.5 In section 130A(4)(d), for "person against whom the charge has been laid" substitute "person charged". 124.6 In section 134A(3), for "defendant" (wherever occurring) substitute "accused". Sch. -- 260 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 249 124.7 In section 158(4), for "defendant" substitute "accused". 124.8 Insert the following heading to section 159— "Onus of proof on accused in certain cases". 124.9 In section 159, for "defendant" (wherever occurring) substitute "accused". 124.10 In section 163(2)(a)— (a) omit "a presentment has been made or"; and (b) for "laid" substitute "filed". 124.11 In section 163(2)(b), for "charge has been filed for the offence" substitute "charge-sheet charging the offence has been filed". 124.12 In section 163(3)(a), for "entering of a nolle prosequi" substitute "discontinuance of the prosecution". 124.13 In section 163(3)(c)— (a) for "person against whom the charge has been laid" substitute "person charged"; and (b) for "committal hearing" substitute "committal proceeding". 124.14 In section 163(3)(d), for "person against whom the charge has been laid" substitute "person charged". 124.15 In section 214(4), for "defendant" (wherever occurring) substitute "accused". 124.16 In section 214(5)— (a) for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009"; and (b) for "defendant" (wherever occurring) substitute "accused". Sch. -- 261 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 250 124.17 In section 215C(4)(b), for "a charge filed for the alleged offence" substitute "the filing of a charge- sheet charging the alleged offence". 124.18 In section 215D(3)(d), for "a charge filed for the alleged offence" substitute "the filing of a charge- sheet charging the alleged offence". 124.19 In section 215D(4), for "charge" substitute "charge-sheet". 124.20 In section 215F(4), for "defendant" (wherever occurring) substitute "accused". 124.21 In section 215F(5)— (a) for "Division 5 of Part 4 of the Magistrates' Court Act 1989" substitute "Part 3.4 of Chapter 3 of the Criminal Procedure Act 2009"; and (b) for "sentencing order" substitute "sentence"; and (c) for "made by it" substitute "imposed by it"; and (d) for "defendant" (wherever occurring) substitute "accused". 124.22 In the note at the foot of section 228ZZE(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 124.23 In the note at the foot of section 228ZZK(2), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". Sch. -- 262 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 251 124.24 In the note at the foot of section 228ZZKA(6), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 124.25 In section 229(1A), for "triable summarily" substitute "that may be heard and determined summarily". 124.26 In section 229(1B), for "section 38 of the Magistrates' Court Act 1989" substitute "section 328 of the Criminal Procedure Act 2009". 124.27 In section 229A(2), for "charge" substitute "charge-sheet". 124.28 In section 230AE(1), (2) and (3), for "defendant" substitute "accused". 124.29 In the heading to section 230AF, for "defendant" substitute "accused". 124.30 In section 230AF(1), (2) and (3), for "defendant" substitute "accused". 124.31 In section 230AF(4), (5), (6) and (7), for "a defendant" substitute "an accused". 124.32 In the heading to Division 6 of Part VII, for "Sentencing orders" substitute "Sentences". 125 Travel Agents Act 1986 125.1 In section 39O(3), for "defendant" substitute "accused". 126 Trustee Act 1958 126.1 In section 48(1) omit "or presentment". 127 Trustee Companies Act 1984 127.1 In section 45(6), for "defendant" (wherever occurring) substitute "accused". Sch. -- 263 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 252 128 Unclaimed Money Act 2008 128.1 In section 85, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009". 129 Utility Meters (Metrological Controls) Act 2002 129.1 In section 12(3), for "defendant" (wherever occurring) substitute "accused". 129.2 In section 46(1)(b), for "defendant" substitute "accused". 129.3 In section 65(2), for "defendant" substitute "accused". 130 Victims' Charter Act 2006 130.1 In section 9(a), for "charges filed" substitute "offences charged". 130.2 In section 9(b)— (a) for "charge is filed" substitute "offence is charged"; and (b) for "charge was filed" substitute "offence was charged". 130.3 In section 9(c), for "charges are filed" substitute "offences are charged". 130.4 In section 11, for "trial process" substitute "process of the trial or hearing (as the case requires)". 131 Victorian Civil and Administrative Tribunal Act 1998 131.1 In section 138(1)— (a) for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009"; and (b) for "passed" substitute "imposed". Sch. -- 264 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 253 131.2 In section 138(3), for "Part VI of the Crimes Act 1958" substitute "Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009". 132 Vital State Projects Act 1976 132.1 In section 9(7), for "defendant" substitute "accused". 132.2 In section 13— (a) for "defendant" (wherever occurring) substitute "accused"; and (b) for "the defendant's attendance" substitute "the attendance of the accused". 133 Water Act 1989 133.1 In the note at the foot of section 137A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 133.2 In section 302(1)— (a) for "defendant" substitute "accused"; and (b) for "mention date" substitute "contest mention date". 134 Water Industry Act 1994 134.1 In the note at the foot of section 62A(3), for "section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989" substitute "section 28 of the Criminal Procedure Act 2009". 134.2 In section 177A(1)— (a) for "defendant" substitute "accused"; and (b) for "mention date" substitute "contest mention date". Sch. -- 265 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 254 135 Wildlife Act 1975 135.1 In section 60(4), for "defendant" substitute "accused". 135.2 In section 85(1)— (a) for "Magistrates' Court Act 1989" substitute "Criminal Procedure Act 2009"; and (b) for "defendant" (wherever occurring) substitute "accused". 135.3 In section 86B, for "section 26 of the Magistrates' Court Act 1989" substitute "section 7 of the Criminal Procedure Act 2009". 136 Working with Children Act 2005 136.1 In section 5(a)— (a) omit "a presentment has been made or"; and (b) for "laid" substitute "filed". 136.2 In section 5(b), for "charge has been filed against the person for the offence" substitute "charge- sheet charging the offence has been filed against the person". 136.3 In section 6(3), for "entering of a nolle prosequi" substitute "discontinuance of a prosecution". 136.4 In section 13(1)(g), for "charge of" substitute "charge for". 136.5 In section 14(1)(c), for "charge of" substitute "charge for". 136.6 In section 20(3), for "charge of" substitute "charge for". 136.7 In section 20(3)(a), for "charge" substitute "charge-sheet containing the charge". Sch. -- 266 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 255 136.8 In section 21(2)— (a) for "charge of" substitute "charge for"; and (b) for "filing of the charge" substitute "filing of the charge-sheet containing the charge". 136.9 In section 41(2), for "charge of" substitute "charge for". 137 Wrongs Act 1958 137.1 Section 3 is repealed. 137.2 In section 4, for "presentment" substitute "indictment". 137.3 In section 11(1) and (2), for "defendant" (wherever occurring) substitute "accused". 137.4 In section 13, for "defendant" (wherever occurring) substitute "accused". 137.5 After section 13 insert— "13AA Transitional (1) Section 10 as amended by section 435(2) of the Criminal Procedure Act 2009 applies to an offence alleged to have been committed on or after the commencement of section 435(2) of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 435(2) of the Criminal Procedure Act 2009, the offence is alleged to have been committed before that commencement.". ═══════════════ Sch. -- 267 of 268 -- Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 No. 68 of 2009 256 ENDNOTES † Minister's second reading speech— Legislative Assembly: 17 September 2009 Legislative Council: 15 October 2009 The long title for the Bill for this Act was "A Bill for an Act to make consequential and other amendments in relation to the Criminal Procedure Act 2009 and to provide transitional arrangements for the commencement of that Act and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 17 September 2009 Legislative Council: 15 October 2009 Absolute majorities: Legislative Assembly: 15 October 2009 Legislative Council: 12 November 2009 Endnotes -- 268 of 268 --