Magistrates' Court (Committal Proceedings) Act 2000

i Magistrates' Court (Committal Proceedings) Act 2000 Act No. 92/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 1 3. Principal Act 2 PART 2—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989 3 4. Time for service of summonses 3 5. Granting of bail when defendant elects to stand trial without a committal proceeding 3 6. Compulsory examination procedure 3 7. Provisions applicable to committal proceedings 6 8. New clause 16 substituted in Schedule 5 10 9. New clause 24A inserted in Schedule 5 12 10. Transitional provisions 15 PART 3—MISCELLANEOUS 18 11. Supreme Court and County Court may determine summary offences 18 12. New section 594 inserted in Crimes Act 1958 18 594. Transitional provision—Magistrates' Court (Committal Proceedings) Act 2000 18 13. Amendment of special rules of evidence in relation to certain offences which relate to rape 19 14. New section 155 inserted in Evidence Act 1958 19 155. Transitional provision—Magistrates' Court (Committal Proceedings) Act 2000 19 ═══════════════ ENDNOTES 20 -- 1 of 21 -- 1 Magistrates' Court (Committal Proceedings) Act 2000† [Assented to 5 December 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The main purpose of this Act is to amend the Magistrates' Court Act 1989 so as to make further reforms to the committal process. 2. Commencement Victoria No. 92 of 2000 -- 2 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 2 (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 July 2001, it comes into operation on that day. 3. Principal Act In this Act, the Magistrates' Court Act 1989 is called the Principal Act. _______________ See: Act No. 51/1989. Reprint No. 6 as at 1 July 1999 and amending Act Nos 35/1999, 39/1999, 44/1999, 1/2000, 49/2000 and 51/2000. LawToday: www.dms. dpc.vic. gov.au -- 3 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 3 PART 2—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989 4. Time for service of summonses (1) In section 34(1) of the Principal Act, for paragraph (a) substitute— "(a) must be served— (i) in the case of a charge of an indictable offence in respect of which the registrar has fixed a committal mention date, at least 7 days before that date or such other time before that date as is prescribed by the regulations; and (ii) in any other case, at least 14 days before the mention date; and". (2) In section 35(4) of the Principal Act, after "7 days" insert "or, in the case of service of a summons to which section 34(1)(a)(i) applies, at least 48 hours". 5. Granting of bail when defendant elects to stand trial without a committal proceeding In section 56(7)(a) and (b) of the Principal Act, after "trial" insert "or a date before trial fixed by the Court". 6. Compulsory examination procedure (1) In section 56A(1) of the Principal Act, for "without notice to the defendant" substitute ", if satisfied that it is in the interests of justice to do so". s. 4 -- 4 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 4 (2) In section 56A of the Principal Act, after sub- section (1) insert— "(1A) An application under sub-section (1)— (a) may only be made if a charge has been filed against the defendant in relation to the matter to which the proposed examination relates; and (b) may be made with or without notice to the defendant. (1B) In an application under sub-section (1), the informant must advise the Court of the following information— (a) whether the person sought to be examined— (i) has been asked by the prosecution to make a statement; and (ii) has refused to do so; and (b) whether the informant is aware whether the person sought to be examined has obtained legal advice concerning the proposed examination; and (c) whether the person sought to be examined is or has been a suspect with respect to the matter to which the proposed examination relates; and (d) whether the person sought to be examined has been made aware of the application; and (e) any other information prescribed by the Rules. s. 6 -- 5 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 5 (1C) If the person sought to be examined in an application under sub-section (1) is or has been a suspect with respect to the matter to which the proposed examination relates, the informant must give reasonable notice of the application to that person or a legal practitioner representing that person, whether or not any charge against that person has been filed or determined.". (3) In section 56A(2) of the Principal Act— (a) in paragraph (c), omit "or on a proceeding held under an order made on such an application"; (b) at the end of paragraph (c) insert— "; and (d) may attend a proceeding held under an order made under sub-section (1) and, if the Court determines there are exceptional circumstances, may address the Court on the proceeding personally or through a legal practitioner representing him or her.". (4) In section 56A(3) of the Principal Act— (a) for "An" substitute "Notice in the form prescribed by the Rules of an"; (b) after "served" insert "on the defendant and". (5) In section 56A of the Principal Act, after sub- section (4) insert— "(4A) A person ordered to attend the Court under sub-section (1) may be represented on a proceeding held under the order by a legal practitioner and may address the Court on the proceeding personally or through a legal practitioner representing him or her.". s. 6 -- 6 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 6 (6) In section 56A(5)(a) of the Principal Act, after "given" insert "by way of examination-in-chief and". 7. Provisions applicable to committal proceedings (1) In clause 5(1) of Schedule 5 to the Principal Act, for "in writing of the defendant, or a legal practitioner representing the defendant, given" substitute "of the defendant, given in writing by the defendant if the defendant is not represented by a legal practitioner or, if the defendant is represented by a legal practitioner, given in writing by that legal practitioner to the informant and the Director of Public Prosecutions". (2) In clause 5(6) of Schedule 5 to the Principal Act, for "as soon as practicable" substitute "within 5 days". (3) In clause 6(1)(k) of Schedule 5 to the Principal Act, for "admissible statements or other documents" substitute "statements or other documents that are capable of being admitted in evidence and are". (4) In clause 7(1) of Schedule 5 to the Principal Act, for "at least 28" substitute "or, if the defendant is represented by a legal practitioner, on that legal practitioner, at least 42". (5) In clause 7(3) of Schedule 5 to the Principal Act, for "as soon as practicable" substitute "within 5 days". (6) In clause 8(1) of Schedule 5 to the Principal Act, for paragraph (b)(iii) substitute— "(iii) an officer at Customs level 2 or higher in the Australian Customs Service; or (iv) an officer at Australian Public Service level 5 or higher in the Australian Securities and Investments Commission; or s. 7 -- 7 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 7 (v) an Investigation Officer, or a Senior Investigation Officer or the Manager, Investigations in the Health Insurance Commission; or (vi) an officer at Australian Public Service level 5 or higher who is an investigator in the Australian Taxation Office; or (vii) any other person, or a member of a class of persons, prescribed by the Rules—". (7) In clause 8(1) of Schedule 5 to the Principal Act, at the end of paragraph (b) insert— "; or (c) in a form, and attested to in a manner, prescribed by the Rules.". (8) In clause 9(1) of Schedule 5 to the Principal Act, for ", including a recording of an examination under section 56A," substitute "of an examination under section 56A or of the evidence-in-chief of a witness under section 37B of the Evidence Act 1958". (9) In clause 12(1) of Schedule 5 to the Principal Act— (a) omit "that the defendant"; (b) in paragraph (a)— (i) for "intends" substitute "that the defendant intends"; (ii) for "the scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue" substitute "an issue to which the proposed questioning relates, a reason as to why the evidence of the witness is relevant to that issue and why cross- examination on that issue is justified"; (c) in paragraph (b), for "requires" substitute "that the defendant requires"; s. 7 -- 8 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 8 (d) in paragraph (c) for "is prepared" substitute "that the defendant is prepared". (10) In clause 12 of Schedule 5 to the Principal Act, after sub-clause (2) insert— "(2A) If the defendant gives notice under sub-clause (1)(a) that the defendant intends to seek leave to cross- examine a witness, the informant must, no later than 7 days before the committal mention date, give notice in writing to the defendant and the registrar stating— (a) whether the informant consents to or opposes leave being granted; and (b) if the informant opposes leave being granted, the reasons for the opposition.". (11) In clause 12(5) of Schedule 5 to the Principal Act, for "because of the existence of exceptional circumstances" substitute "in the interests of justice". (12) In clause 13 of Schedule 5 to the Principal Act, for sub-clause (4) and (5) substitute— "(4) In determining whether to grant leave to cross- examine a witness to whom this clause applies, the Court may have regard to whether the informant consents to or opposes leave being granted. (5) The Court must not grant leave to cross-examine a witness to whom this clause applies unless satisfied that— (a) the defendant has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and (b) cross-examination of the witness on that issue is justified. (5A) In determining whether cross-examination is justified the Court must have regard to the need to ensure that— s. 7 -- 9 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 9 (a) the prosecution case is adequately disclosed; and (b) the issues are adequately defined; and (c) the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged; and (d) a fair trial will take place if the matter proceeds to trial, including that the defendant is able adequately to prepare and present a defence; and (e) matters relevant to a potential plea of guilty are clarified; and (f) matters relevant to a potential nolle prosequi are clarified; and (g) trivial, vexatious or oppressive cross- examination is not permitted; and (h) the interests of justice are otherwise served. (5B) In addition to the requirements of sub-clause (5A), if the witness is under 18 years of age the Court must have regard to the following matters— (a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and (b) any relevant condition or characteristic of the witness, including, age, culture, personality, education and level of understanding; and (c) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Court is aware; and (d) the importance of the witness to the case for the prosecution; and (e) the existence, or lack, of evidence that corroborates the proposed evidence of the witness; and (f) the extent of any proposed admissions; and (g) the probative value of the proposed evidence of the witness; and (h) the issues likely to be in dispute; and s. 7 -- 10 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 10 (i) the weight of the proposed evidence of the witness; and (j) any statements of other witnesses that contradict the proposed evidence of the witness. (5C) Subject to clause 16, a defendant who obtains leave to cross-examine a witness is not limited to cross- examining the witness on the issue with respect to which leave was obtained.". (13) In clause 24(1)(b) of Schedule 5 to the Principal Act, after "trial" insert "or a date before trial fixed by the Court". (14) Clause 26 of Schedule 5 to the Principal Act is revoked. 8. New clause 16 substituted in Schedule 5 For clause 16 of Schedule 5 to the Principal Act, substitute— "16. Cross-examination of witnesses (1) Without limiting any other power that it has to forbid or disallow questions, the Court may disallow any question asked of a witness in the course of cross-examination of a witness in a committal proceeding if it appears to the Court— (a) that the defendant has not identified an issue to which the question relates and has not provided a reason why the evidence of the witness is relevant to that issue; or (b) that the question is not justified; or (c) that the question is unduly repetitive of an earlier question. (2) In determining whether a question is justified the Court must have regard to the need to ensure that— (a) the prosecution case is adequately disclosed; and s. 8 -- 11 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 11 (b) the issues are adequately defined; and (c) the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged; and (d) a fair trial will take place if the matter proceeds to trial, including that the defendant is able adequately to prepare and present a defence; and (e) matters relevant to a potential plea of guilty are clarified; and (f) matters relevant to a potential nolle prosequi are clarified; and (g) trivial, vexatious or oppressive questioning is not permitted; and (h) the interests of justice are otherwise served. (3) In addition to the requirements of sub-clause (2), if the witness is under 18 years of age the Court must have regard to the following matters— (a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and (b) the need to prevent the witness being asked a question that is— (i) misleading or confusing; or (ii) phrased in inappropriate language; or (iii) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive; and (c) any relevant condition or characteristic of the witness, including, age, culture, personality, education and level of understanding; and (d) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Court is aware; and s. 8 -- 12 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 12 (e) the importance of the witness to the case for the prosecution; and (f) the existence, or lack, of evidence that corroborates the proposed evidence of the witness; and (g) the extent of any admissions; and (h) the probative value of the proposed evidence of the witness; and (i) the issues in dispute; and (j) the weight of the proposed evidence of the witness; and (k) any statements of other witnesses that contradict the proposed evidence of the witness.". 9. New clause 24A inserted in Schedule 5 After clause 24 of Schedule 5 to the Principal Act insert— "24A. Evidence taken after accused person directed to be tried (1) If a defendant has been committed for trial, the Director of Public Prosecutions or the defendant may apply to the Court for an order that the evidence of a person be taken at a time and place fixed by the Court. (2) An applicant for an order under sub-section (1) must give notice of the application, in the form prescribed by the Rules, to the other party no later than 14 days before the hearing of the application or such lesser period before then as is agreed to by the other party. (3) The Director of Public Prosecutions or the defendant (as the case requires) to whom notice of an application under sub-section (1) is given may attend the hearing of the application and address the Court on it. (4) The Court must not make an order under sub- clause (1) in respect of a person who— s. 9 -- 13 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 13 (a) was examined as a witness at the committal proceeding; or (b) made a statement the contents of which were admitted as a record of evidence at the committal proceeding under clause 18(1)(a) or (b); or (c) gave evidence-in-chief in accordance with section 37B of the Evidence Act 1958 and the contents of the recording were admitted as a record of evidence at the committal proceeding under clause 18(1)(d)— unless the person subsequently makes a statement or a supplementary statement the truthfulness of which has been attested to. (5) The Court must not make an order under sub- clause (1) in respect of a person who subsequently makes a statement or a supplementary statement unless it is satisfied that in relation to that statement— (a) there is an issue to which the evidence proposed to be taken relates; and (b) there is a reason as to why the evidence of the person is relevant to that issue; and (c) taking of evidence from the person is justified. (6) In determining whether the taking of evidence from the person is justified the Court must have regard to the need to ensure that— (a) the prosecution case is adequately disclosed; and (b) the issues are adequately defined; and (c) a fair trial will take place if the matter proceeds to trial, including that the defendant is able adequately to prepare and present a defence; and (d) matters relevant to a potential plea of guilty are clarified; and s. 9 -- 14 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 14 (e) matters relevant to a potential nolle prosequi are clarified; and (f) trivial, vexatious or oppressive taking of evidence is not permitted; and (g) the interests of justice are otherwise served. (7) In addition to the requirements of sub-clause (6), if the witness is under 18 years of age the Court must have regard to the following matters— (a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and (b) any relevant condition or characteristic of the witness, including, age, culture, personality, education and level of understanding; and (c) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Court is aware; and (d) the importance of the witness to the case for the prosecution; and (e) the existence, or lack, of evidence that corroborates the proposed evidence of the witness; and (f) the extent of any proposed admissions; and (g) the probative value of the proposed evidence of the witness; and (h) the issues in dispute; and (i) the weight of the proposed evidence of the witness; and (j) any statements of other witnesses that contradict the proposed evidence of the witness. (8) If the Director of Public Prosecutions or the defendant obtains an order under sub-clause s. 9 -- 15 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 15 (1), the other party may attend the hearing of the proceeding and address the Court. (9) If the defendant obtains an order under sub- clause (1) with respect to the examination of a prosecution witness, the informant must ensure that the witness attends at a time and place fixed by the Court for examination. (10) The Court may, on making an order under sub- section (1) or at the examination, make any order it considers necessary or in the interests of justice with respect to the examination or cross-examination of the person giving evidence under this clause. (11) A person cross-examining a witness giving evidence under this clause is not limited to cross-examining the witness on the issue with respect to which the order was made under sub-clause (1). (12) Clause 16 applies in relation to the cross- examination of a person giving evidence under this clause as if the person were a witness in the course of cross-examination in a committal proceeding. (13) The evidence of a person given under this clause must be given and recorded in the same manner as evidence at a committal proceeding. (14) The record of the evidence of any person given under this clause must be forwarded as soon as possible by the registrar at the venue of the Court at which the committal proceeding was held to the Director of Public Prosecutions and has effect and must be treated as if it were a record of evidence given at the committal proceeding.". 10. Transitional provisions At the end of Schedule 8 to the Principal Act insert— "22.(1) The amendments of sections 34 and 35 of this Act made by section 4 of the Magistrates' Court (Committal Proceedings) Act 2000 apply only s. 9 s. 10 -- 16 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 16 with respect to summonses issued on or after the commencement of that section of that Act. (2) The amendments of section 56A of this Act made by section 6 of the Magistrates' Court (Committal Proceedings) Act 2000 apply only with respect to applications made under section 56A(1), and to proceedings held under orders made on such applications, on or after the commencement of that section of that Act. (3) Subject to sub-clauses (4) to (8), an amendment of Schedule 5 to this Act made by a provision of Part 2 of the Magistrates' Court (Committal Proceedings) Act 2000 applies only with respect to the hearing of charges filed in the Court on or after the commencement of that provision. (4) If a defendant has given a notice under clause 12(1)(a) of Schedule 5 to this Act before the commencement of section 7(9) of the Magistrates' Court (Committal Proceedings) Act 2000 but an application for leave to cross-examine the witness has not been made before that commencement, the notice has effect on and after that commencement as if it were a notice given in accordance with that clause as amended by that Act and the application for leave shall be made and determined in accordance with Schedule 5 to this Act as amended by that Act. (5) If an application for leave to cross-examine a witness at a committal proceeding has been refused before the commencement of section 7(9) of the Magistrates' Court (Committal Proceedings) Act 2000 but the committal proceeding has not been held before that commencement, the Court may, on the application of the defendant, grant leave to the defendant to give a fresh notice under clause 12(1)(a) of Schedule 5 to this Act as amended by that Act if satisfied that it is in the interests of justice to do so. (6) Subject to sub-clause (5), a notice that the defendant intends to seek leave to cross-examine a witness at a committal proceeding may be given, and an application for leave to cross-examine a witness at a committal proceeding may be made, on or after the s. 10 -- 17 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 17 commencement of section 7(9) of the Magistrates' Court (Committal Proceedings) Act 2000 in accordance with Schedule 5 to this Act as amended by that Act, irrespective of when the charge to which the proceeding relates was filed in the Court. (7) If leave to cross-examine a witness to whom clause 13 of Schedule 5 to this Act applies has been granted before the commencement of section 8 of the Magistrates' Court (Committal Proceedings) Act 2000 but the cross-examination has not commenced before that commencement, the amendment of that Schedule made by that section applies with respect to the cross-examination. (8) Clause 24A of Schedule 5 to this Act, as inserted by section 9 of the Magistrates' Court (Committal Proceedings) Act 2000 applies irrespective of when the defendant was committed for trial.". __________________ -- 18 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 18 PART 3—MISCELLANEOUS 11. Supreme Court and County Court may determine summary offences (1) Section 359AA(1) of the Crimes Act 1958 is repealed. (2) In section 359AA(2) of the Crimes Act 1958 for "hear and determine summarily any relevant" substitute "or the accused person hear and determine summarily any". (3) In section 359AA(3) of the Crimes Act 1958 omit "relevant" (wherever occurring). 12. New section 594 inserted in Crimes Act 1958 In Part 7 of the Crimes Act 1958, at the end of the Part insert— "594. Transitional provision—Magistrates' Court (Committal Proceedings) Act 2000 The amendments of section 359AA of this Act made by section 11 of the Magistrates' Court (Committal Proceedings) Act 2000 apply to applications made under that section on or after the commencement of that section of that Act irrespective of when the charge for the summary offence was filed under section 26 of the Magistrates' Court Act 1989.". s. 11 See: Act No. 6231. Reprint No. 15 as at 1 September 1999 and amending Act No. 26/1999. LawToday: www.dms. dpc.vic. gov.au -- 19 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 19 13. Amendment of special rules of evidence in relation to certain offences which relate to rape In section 37A(1) of the Evidence Act 1958, in Rule (5)(aa)(i)— (a) after "Director of Public Prosecutions" insert "and, in the case of a committal proceeding, to the informant"; (b) in sub-sub-paragraph (A), for "on or before the committal mention date" substitute "at least 14 days before the date fixed by the court for the cross-examination of the witness". 14. New section 155 inserted in Evidence Act 1958 After section 154 of the Evidence Act 1958 insert— "155. Transitional provision—Magistrates' Court (Committal Proceedings) Act 2000 The amendment of section 37A(1) of this Act made by section 13 of the Magistrates' Court (Committal Proceedings) Act 2000 applies to applications for leave under Rule (2) made under that section on or after the commencement of section 13 of that Act irrespective of when the committal proceeding is commenced or when any offence to which the proceeding relates is alleged to have been committed.". ═══════════════ s. 13 See: Act No. 6246 Reprint No. 13 as at 1 September 1999 and amending Act Nos 21/1999 and 26/1999. LawToday: www.dms. dpc.vic. gov.au -- 20 of 21 -- Act No. 92/2000 Magistrates' Court (Committal Proceedings) Act 2000 20 ENDNOTES † Minister's second reading speech— Legislative Assembly: 26 October 2000 Legislative Council: 21 November 2000 The long title for the Bill for this Act was "to amend the Magistrates' Court Act 1989, the Crimes Act 1958 and the Evidence Act 1958 and for other purposes." Endnotes -- 21 of 21 --