Criminal Procedure Amendment Act 2012
No. 48 of 2012
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
3
1
Purposes
Commencement
Principal Act
1
2
3
PART 2—CRIMINAL PROCEDURE ACT 2009
4
Division 1—Appeal by offender against sentence
4
4
5
6
7
8
9
Definitions
Section 280 substituted
280
Determination of application for leave to appeal under
section 278
Section 284A substituted
284A Determination of application for leave to appeal under
section 283
Powers which may be exercised by a single Judge of Appeal
Sentence in absence of offender
Consequential amendments
Division 2—Miscellaneous amendments
10
11
12
13
14
15
16
17
18
19
20
How a criminal proceeding is commenced
Preliminary brief to be served if charge-sheet filed
Summary case conference
Powers of court at directions hearing
Comment on departure or failure
When finding of guilt occurs
Late notice of appeal deemed to be application for leave to
appeal
Note to section 271 substituted
New section 302A inserted
302A Reservation of question of law on appeal to County
Court
Adjournment if question of law reserved
Consequential amendments
i
4
4
4
5
5
6
7
8
8
8
8
8
8
9
9
10
11
11
11
12
12
Section
21
22
23
24
25
26
27
28
29
30
31
Page
Application of Division 5 of Part 8.2
Admissibility of recorded evidence-in-chief
New section 368A inserted
368A Court may order production of recording made under
this Division in certain circumstances
Section 370 amended
Time limits for special hearing
New section 371A inserted
371A Timing arrangements for special hearing during trial
Conduct of special hearing
Consequential amendments
New section 375A inserted
375A Jury warning as to special hearing held during trial
Persons who may witness statements in preliminary brief, full
brief or hand-up brief
Statute law revision
Division 3—Transitional provisions for amendments by
Divisions 1 and 2
32
New section 442 inserted
442
Transitional provisions—Criminal Procedure
Amendment Act 2012
PART 3—CHILDREN, YOUTH AND FAMILIES ACT 2005
33
34
35
36
37
12
13
14
14
14
16
16
16
17
17
17
17
18
19
19
19
19
21
Late notice of appeal deemed to be application for leave
to appeal
Heading to Division 6 of Part 5.4 of Chapter 5 amended
New Division 6A inserted into Part 5.4 of Chapter 5
21
22
22
Division 6A—Case stated for Court of Appeal
22
430VA Reservation of question of law
430VB Adjournment if question of law reserved
430VC Refusal to reserve question of law
430VD Case to be stated if question of law reserved
430VE General powers of Court of Appeal on case stated
430VF Judgment to be entered on record
New section 430WA inserted
430WA Powers and procedure
New section 622 inserted
622
Transitional provision—Criminal Procedure
Amendment Act 2012
22
23
23
24
24
24
25
25
25
ii
25
Section
Page
PART 4—AMENDMENT OF OTHER ACTS
26
Division 1—Magistrates' Court Act 1989
26
38
39
40
Authority conferred by search warrant
Warrants
New clause 49 inserted into Schedule 8
49
Transitional provision—Criminal Procedure
Amendment Act 2012
Division 2—Drugs, Poisons and Controlled Substances Act 1981
41
42
Warrant to search premises
New section 143 inserted
143
Transitional provision—Criminal Procedure
Amendment Act 2012
Division 3—Sentencing Act 1991
43
44
45
46
Sentence discount for guilty plea
Aggregate sentence of imprisonment
Aggregate fines
New section 145 inserted
145
Transitional provisions—Criminal Procedure
Amendment Act 2012
27
27
27
27
28
28
29
29
29
30
Retention of copy of recording
PART 5—REPEAL OF AMENDING ACT
48
26
28
Division 4—Crimes Act 1958
47
26
26
26
Repeal of amending Act
═══════════════
ENDNOTES
30
31
31
32
iii
Victoria
Criminal Procedure Amendment Act
2012†
No. 48 of 2012
[Assented to 4 September 2012]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Criminal Procedure Act
2009—
(i) to further provide for leave to appeal
against sentence;
(ii) to expand the use of recorded evidencein-chief;
1
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 2
Part 1—Preliminary
(iii) to allow special hearings to be held
during criminal trials;
(iv) to clarify the circumstances in which a
judge may comment on a departure
from the disclosed evidence or a failure
of an accused to adduce particular
evidence in the course of a trial;
(v) to rationalise, and add to, the list of
persons and classes of persons
authorised to witness statements for use
in full briefs, preliminary briefs and
hand-up briefs;
(b) to amend the Children, Youth and Families
Act 2005 in relation to appeals from the
County Court or the Trial Division of the
Supreme Court to the Court of Appeal if a
question of law is reserved;
(c) to amend the Magistrates' Court Act 1989
and the Drugs, Poisons and Controlled
Substances Act 1981 to remove the
requirement that articles or things seized
under a search warrant be brought before the
court to be dealt with according to law;
(d) to amend the Sentencing Act 1991—
(i) in relation to the imposition of
aggregate sentences by a court;
(ii) in relation to the recording of the
reduction of sentences for guilty pleas;
(e) to make a minor amendment to the Crimes
Act 1958.
2 Commencement
(1) This Act, except section 10, comes into operation
on the day after the day on which it receives the
Royal Assent.
2
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 1—Preliminary
s. 3
(2) Subject to subsection (3), section 10 comes into
operation on a day to be proclaimed.
(3) If section 10 does not come into operation before
1 November 2012, it comes into operation on that
day.
3 Principal Act
In this Act, the Criminal Procedure Act 2009 is
called the Principal Act.
__________________
3
See:
Act No.
7/2009.
Reprint No. 2
as at
18 March
2012
and
amending
Act Nos
65/2010,
20/2012 and
26/2012.
LawToday:
www.
legislation.
vic.gov.au
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 4
Part 2—Criminal Procedure Act 2009
PART 2—CRIMINAL PROCEDURE ACT 2009
Division 1—Appeal by offender against sentence
4 Definitions
In section 3 of the Principal Act insert the
following definition—
"total effective sentence means the product of
individual sentences and orders for
cumulation or concurrency of those
sentences imposed on a person on the same
occasion;".
5 Section 280 substituted
For section 280 of the Principal Act substitute—
"280 Determination of application for leave to
appeal under section 278
(1) The Court of Appeal may refuse an
application for leave to appeal under
section 278 in relation to any ground of
appeal if—
(a) there is no reasonable prospect that the
Court of Appeal would impose a less
severe sentence than the sentence first
imposed; or
(b) there is no reasonable prospect that the
Court of Appeal would reduce the total
effective sentence despite there being
an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal
to correct a sentence if an application is refused
in the circumstances referred to in
subsection (1)(b).
4
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
(2) An application may be refused under
subsection (1) even if the Court of Appeal
considers that there may be a reasonably
arguable ground of appeal.
(3) On refusing an application by reason of
subsection (1)(b), the Court of Appeal may,
if it considers it appropriate to do so—
(a) amend the sentence first imposed by
substituting a less severe sentence; and
(b) make any other order that the Court of
Appeal considers ought to be made.
Note
If an application for leave to appeal is heard and refused by
a single Judge of Appeal under section 315(1),
section 315(2) entitles the applicant to have the application
determined by the Court of Appeal.".
6 Section 284A substituted
For section 284A of the Principal Act
substitute—
"284A Determination of application for leave to
appeal under section 283
(1) The Court of Appeal may refuse an
application for leave to appeal under
section 283 in relation to any ground of
appeal if—
(a) there is no reasonable prospect that the
Court of Appeal would impose a less
severe sentence than the sentence
imposed by the County Court; or
(b) there is no reasonable prospect that the
Court of Appeal would reduce the total
effective sentence despite there being
an error in the sentence imposed by the
County Court.
5
s. 6
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 7
Part 2—Criminal Procedure Act 2009
Note
Subsection (3) empowers the Court of Appeal
to correct a sentence if an application is refused
in the circumstances referred to in
subsection (1)(b).
(2) An application may be refused under
subsection (1) even if the Court of Appeal
considers that there may be a reasonably
arguable ground of appeal.
(3) On refusing an application by reason of
subsection (1)(b), the Court of Appeal may,
if it considers it appropriate to do so—
(a) amend the sentence imposed by the
County Court by substituting a less
severe sentence; and
(b) make any other order that the Court of
Appeal considers ought to be made.
Note
If an application for leave to appeal is heard and refused by
a single Judge of Appeal under section 315(1),
section 315(2) entitles the applicant to have the application
determined by the Court of Appeal.".
7 Powers which may be exercised by a single Judge of
Appeal
(1) In the heading to section 315 of the Principal Act,
after "by" insert "Court of Appeal constituted
by".
(2) In section 315(1) of the Principal Act, for "The
following powers of the Court of Appeal under
this Part may be exercised by a single Judge of
Appeal in the same manner as they may be
exercised by the Court of Appeal" substitute
"The Court of Appeal constituted by a single
Judge of Appeal may exercise the following
powers".
6
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
(3) In section 315(2) of the Principal Act—
(a) for "a Judge of Appeal" substitute "the
Court of Appeal constituted by a single
Judge of Appeal";
(b) after "Court of Appeal" insert "constituted
by 2 or more Judges of Appeal".
(4) After section 315(2) of the Principal Act insert—
"(3) An order under section 280(3) or 284A(3)
made by the Court of Appeal constituted by
a single Judge of Appeal is stayed on the
filing of an application to have the
application for leave to appeal determined by
the Court of Appeal constituted by 2 or more
Judges of Appeal.
(4) An order stayed under subsection (3)—
(a) takes effect on the refusal of the
application for leave to appeal by the
Court of Appeal constituted by 2 or
more Judges of Appeal;
(b) is of no effect if the application for
leave to appeal is granted by the Court
of Appeal constituted by 2 or more
Judges of Appeal.".
8 Sentence in absence of offender
At the end of section 322 of the Principal Act
insert—
"(2) For the purposes of this section, the making
of an order under section 280(3) or 284A(3)
is an imposition of a sentence.".
7
s. 8
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 9
Part 2—Criminal Procedure Act 2009
9 Consequential amendments
(1) In section 327I(2) of the Principal Act, for "a
single Judge of Appeal in the same manner as it
may be exercised by the Court of Appeal"
substitute "the Court of Appeal constituted by a
single Judge of Appeal".
(2) In section 327I(3) of the Principal Act—
(a) for "a Judge of Appeal" substitute "the
Court of Appeal constituted by a single
Judge of Appeal";
(b) after "Court of Appeal" insert "constituted
by 2 or more Judges of Appeal".
Division 2—Miscellaneous amendments
10 How a criminal proceeding is commenced
At the foot of section 5 of the Principal Act
insert—
"Note
A proceeding may also be commenced under section 83AL
of the Sentencing Act 1991.".
11 Preliminary brief to be served if charge-sheet filed
In section 24(a) of the Principal Act, for "7 days"
substitute "21 days".
12 Summary case conference
In section 54(2) of the Principal Act for "7 days"
substitute "21 days".
13 Powers of court at directions hearing
For section 181(2)(d) of the Principal Act
substitute—
"(d) in the case of a trial for a sexual offence in
which the complainant was a child or a
person with a cognitive impairment when the
criminal proceeding was commenced—
8
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
(i) require the prosecutor to advise as to
the availability of the complainant, and
the accused to advise as to his or her
own availability for the special hearing
to be held under Division 6 of Part 8.2;
and
(ii) give a direction under section 370(1A)
that the special hearing is to be held
before the trial or during the trial; and
(iii) if the special hearing is to be held
during the trial, specify the date on
which the special hearing is to
commence;".
14 Comment on departure or failure
(1) In section 237 of the Principal Act—
(a) in subsection (1), for "subsections (2)
and (3)" substitute "subsection (2)";
(b) for subsection (2)(b) substitute—
"(b) the proposed comment is permitted by
another Act or a rule of law; and
Note
See section 20 of the Evidence Act 2008.
(c) the proposed comment is not unfairly
prejudicial to the party about whom the
comment is made.".
(2) Section 237(3) of the Principal Act is repealed.
15 When finding of guilt occurs
In section 253B of the Principal Act omit "trial".
9
s. 14
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 16
Part 2—Criminal Procedure Act 2009
16 Late notice of appeal deemed to be application for
leave to appeal
After section 263(2) of the Principal Act insert—
"(3) If the County Court does not grant leave to
appeal under subsection (2), the County
Court must strike out the appeal.
(4) If—
(a) the County Court strikes out an appeal
under subsection (3); and
(b) the appellant had been sentenced to a
term of imprisonment or detention by
the Magistrates' Court—
the registrar of the County Court may issue,
in accordance with the Magistrates' Court
Act 1989, a warrant to imprison the
appellant and may recall and cancel that
warrant.
(5) If an appeal is struck out under
subsection (3)—
(a) the sentence of the Magistrates' 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 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.".
10
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
17 Note to section 271 substituted
For the Note at the foot of section 271 of the
Principal Act substitute—
"Notes
1
Section 283 gives a further right of appeal from the
County Court to the Court of Appeal in certain
circumstances.
2
Section 302A provides for the reservation of a question
of law for determination by the Court of Appeal during
the hearing of an appeal by the County Court.".
18 New section 302A inserted
After section 302 of the Principal Act insert—
"302A Reservation of question of law on appeal
to County Court
If on the hearing of an appeal under Part 6.1
to the County Court from the Magistrates'
Court a question of law arises, the County
Court may reserve the question for
determination by the Court of Appeal if the
County Court is satisfied that it is in the
interests of justice to do so, having regard
to—
(a) the extent of any disruption or delay to
the hearing that may arise if the
question of law is reserved; and
(b) whether the determination of the
question of law may—
(i) render the hearing unnecessary; or
(ii) substantially reduce the time
required for the hearing; or
(iii) resolve a novel question of law
that is necessary for the proper
conduct of the hearing.".
11
s. 17
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 19
Part 2—Criminal Procedure Act 2009
19 Adjournment if question of law reserved
At the end of section 303 of the Principal Act
insert—
"(2) If a court reserves a question of law under
section 302A, the court must adjourn the
hearing, if reasonably practicable, until the
question of law has been determined.".
20 Consequential amendments
(1) In section 304(1) of the Principal Act, after
"section 302" insert "or 302A".
(2) In sections 305(1) and 306(2) of the Principal Act,
after "section 302" insert ", 302A".
(3) In section 308(4) of the Principal Act, after "trial"
(where twice occurring) insert "or hearing".
21 Application of Division 5 of Part 8.2
In section 366(1) of the Principal Act—
(a) in paragraph (b), for "person." substitute
"person; or";
(b) after paragraph (b) insert—
"(c) an offence against section 68, 69 or
70AC of the Crimes Act 1958; or
(d) any offences against section 23 or 24 of
the Summary Offences Act 1966 if
those offences are related offences to an
offence specified in paragraph (a), (b)
or (c), despite whether any such related
offences are withdrawn or dismissed
before an offence against section 23
or 24 of the Summary Offences Act
1966 is heard and determined.".
12
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
22 Admissibility of recorded evidence-in-chief
(1) In section 368(3) of the Principal Act, after
"recording" insert "and, if so, the court may direct
that the recording be edited or altered to delete
any part of it that is inadmissible".
(2) After section 368(3) of the Principal Act insert—
"(4) Subject to this section, a recording referred
to in section 367 is admissible in evidence as
if its contents were the direct testimony of
the witness—
(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 an offence
specified in section 366(1) or a
charge for a related offence; or
(iii) a civil proceeding arising from the
same facts as those on which the
charge for an offence specified in
section 366(1) is founded.
(5) The court, by order, may abridge any time
fixed—
(a) by or under subsection (1)(a); or
(b) by any order abridging time made
under this subsection—
if the court considers that it is in the interests
of justice to do so.".
13
s. 22
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 23
Part 2—Criminal Procedure Act 2009
23 New section 368A inserted
After section 368 of the Principal Act insert—
"368A Court may order production of recording
made under this Division in certain
circumstances
(1) A court may order that a recording referred
to in section 367 be produced for use in a
proceeding (other than a proceeding referred
to in section 368) before that court if the
court is satisfied that it is in the best interests
of the witness to do so.
(2) If a court makes an order under subsection
(1), it must also specify—
(a) the persons who may view or listen to
the recording; and
(b) when and where the recording is
required to be produced; and
(c) if necessary, any requirements as to the
destruction of the recording.
(3) In making an order under subsection (1), the
court must have regard to the need to protect
the privacy of the witness.
(4) In this section, court includes a tribunal if
the complainant is the applicant in a
proceeding before the tribunal.".
24 Section 370 amended
(1) In the heading to section 370 of the Principal Act,
for "pre-recording" substitute "recording".
(2) In section 370(1)(b) of the Principal Act, before
"presented" insert "in the case of a special hearing
before the trial,".
14
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
(3) After section 370(1) of the Principal Act insert—
"(1A) The court must direct that a special hearing
under this Division is to be held—
(a) before the trial; or
(b) during the trial.
Note
Section 337 enables the court to vary its direction on the
application of a party or on its own motion.
(1B) In making a direction under subsection (1A),
the court must have regard to—
(a) if the complainant is a child, the age
and maturity of the child; and
(b) if the complainant is cognitively
impaired, the severity of that
impairment; and
(c) any preference expressed by the
complainant to give their evidence
before the trial or during the trial; and
(d) whether conducting the special hearing
during the trial is likely—
(i) to intimidate the complainant
when giving his or her evidence;
or
(ii) to have an adverse effect on the
complainant; and
(e) the need to complete the evidence of
the complainant expeditiously; and
(f) the likelihood that the evidence given
by the witness will include inadmissible
evidence that may result in the
discharge of the jury; and
(g) any other matter that the court
considers relevant.".
15
s. 24
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 25
Part 2—Criminal Procedure Act 2009
25 Time limits for special hearing
For section 371(2) of the Principal Act
substitute—
"(2) The court may extend the time for holding a
special hearing if the court considers that it is
in the interests of justice to do so, having
regard to—
(a) if the complainant is a child, the age
and maturity of the child; and
(b) if the complainant is cognitively
impaired, the severity of that
impairment; and
(c) the period of time since the complaint
was first made; and
(d) the period of time since the offence was
allegedly committed; and
(e) any other matter that the court
considers relevant.".
26 New section 371A inserted
After section 371 of the Principal Act insert—
"371A Timing arrangements for special hearing
during trial
If the court directs that a special hearing be
held during the trial, the court must—
(a) as far as possible, commence the
special hearing on the date specified
under section 181(2)(d)(iii); and
16
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
(b) ensure that the complainant's evidence
is disrupted to the least extent possible.
Example
An application to discharge the jury may be
heard and determined after the special hearing
is completed.
Note
Section 212 sets out time limits for commencing trials for
sexual offences.".
27 Conduct of special hearing
After section 372(1)(b) of the Principal Act
insert—
"(ba) in the case of a special hearing held during
the trial, the jury is to be present in the
courtroom;".
28 Consequential amendments
In sections 373(1) and 374(1) of the Principal Act,
for "referred to in section 370(1)" substitute "of a
special hearing".
29 New section 375A inserted
After section 375 of the Principal Act insert—
"375A Jury warning as to special hearing held
during trial
If a special hearing is held during a trial, 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 arrangements put in place
under section 372 for the special hearing.".
17
s. 27
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 30
Part 2—Criminal Procedure Act 2009
30 Persons who may witness statements in preliminary
brief, full brief or hand-up brief
(1) Items 20, 24 and 28 of Schedule 3 to the Principal
Act are repealed.
(2) In item 30 of Schedule 3 to the Principal Act omit
"other".
(3) After item 30 of Schedule 3 to the Principal Act
insert—
"31 A person before whom an affidavit may be
sworn and taken under section 123C(1)(gb)
of the Evidence (Miscellaneous Provisions)
Act 1958.
32 An inspector of municipal administration
appointed under section 223A of the Local
Government Act 1989.
33 An authorised officer appointed by a
municipal council under section 224 of the
Local Government Act 1989.
34 An officer at Australian Public Service
level 5 or higher who is a member of the
Investigations and Intelligence Branch of the
Department of Climate Change and Energy
Efficiency of the Commonwealth.
35 A person authorised under section 252 of the
Accident Compensation Act 1985 to file
charge-sheets on behalf of the Victorian
WorkCover Authority.
36 An officer of the Roads Corporation
authorised under section 77(2)(d) of the
Road Safety Act 1986 to prosecute any
offence against that Act or the regulations
made under that Act.
18
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 2—Criminal Procedure Act 2009
37 An officer of the Roads Corporation
authorised under section 112 of the Road
Safety Act 1986.
38 A person authorised by or under section 229
of the Transport (Compliance and
Miscellaneous) Act 1983 to bring a
proceeding for an offence against that Act or
the regulations made under that Act.".
31 Statute law revision
In section 393(3) of the Principal Act, for
"Incorporations" substitute "Incorporation".
Division 3—Transitional provisions for amendments by
Divisions 1 and 2
32 New section 442 inserted
After section 441 of the Principal Act insert—
"442 Transitional provisions—Criminal
Procedure Amendment Act 2012
(1) This Act as amended by Division 1 of Part 2
of the Criminal Procedure Amendment
Act 2012 applies to an application for leave
to appeal against sentence that is determined
on or after the day on which Division 1 of
Part 2 of that Act comes into operation,
irrespective of when the application was
commenced.
(2) Division 5 of Part 8.2 as amended by
sections 22 and 23 of the Criminal
Procedure Amendment Act 2012 applies
irrespective of whether the recording is made
before, on or after the commencement of
those sections.
(3) Division 6 of Part 8.2 as amended by
sections 24, 25, 26, 27, 28 and 29 of the
Criminal Procedure Amendment Act 2012
19
s. 31
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 32
Part 2—Criminal Procedure Act 2009
applies to a proceeding in which a special
hearing is held on or after the
commencement of those sections.".
__________________
20
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 3—Children, Youth and Families Act 2005
s. 33
PART 3—CHILDREN, YOUTH AND FAMILIES ACT 2005
33 Late notice of appeal deemed to be application for
leave to appeal
After section 430(2) of the Children, Youth and
Families Act 2005 insert—
"(3) If the appellate court does not grant leave to
appeal under subsection (2), the appellate
court must strike out the appeal.
(4) If—
(a) the appellate court strikes out an appeal
under subsection (3); and
(b) the appellant had been sentenced to a
period of detention in a youth
residential centre or a youth justice
centre by the Children's Court—
the registrar of the County Court or the
prothonotary of the Supreme Court (as the
case requires) may issue, in accordance with
the Magistrates' Court Act 1989, a warrant
to detain the person in a youth residential
centre or a youth justice centre (as the case
requires) and may recall and cancel that
warrant.
(5) If an appeal is struck out under
subsection (3)—
(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
21
See:
Act No.
96/2005.
Reprint No. 3
as at
1 January
2011
and
amending
Act Nos
51/2006 (as
amended by
Act No.
51/2009),
53/2010,
27/2011,
29/2011,
54/2011,
80/2011,
20/2012,
23/2012 and
26/2012.
LawToday:
www.
legislation.
vic.gov.au
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 34
Part 3—Children, Youth and Families Act 2005
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.".
34 Heading to Division 6 of Part 5.4 of Chapter 5
amended
In the heading to Division 6 of Part 5.4 of the
Children, Youth and Families Act 2005 omit
"and referral of point of law to Court of
Appeal".
35 New Division 6A inserted into Part 5.4 of Chapter 5
After section 430V of the Children, Youth and
Families Act 2005 insert—
"Division 6A—Case stated for Court of Appeal
430VA Reservation of question of law
If on the hearing of an appeal to the County
Court or the Trial Division of the Supreme
Court from the Children's Court a question
of law arises, the County Court or the Trial
Division of the Supreme Court (as the case
may be) may reserve the question for
determination by the Court of Appeal if the
County Court or the Trial Division of the
Supreme Court is satisfied that it is in the
interests of justice to do so, having regard
to—
(a) the extent of any disruption or delay to
the hearing that may arise if the
question of law is reserved; and
22
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 3—Children, Youth and Families Act 2005
(b) whether the determination of the
question of law may—
(i) render the hearing unnecessary; or
(ii) substantially reduce the time
required for the hearing; or
(iii) resolve a novel question of law
that is necessary for the proper
conduct of the hearing.
430VB Adjournment if question of law reserved
If a court reserves a question of law under
section 430VA, the court must adjourn the
hearing, if reasonably practicable, until the
question of law has been determined.
430VC Refusal to reserve question of law
(1) If the County Court or the Trial Division of
the Supreme Court refuses an application
under section 430VA to reserve a question of
law, the applicant may apply to the Court of
Appeal for an order calling on—
(a) the court that dismissed the application;
and
(b) the respondent—
to show cause why the question of law
should not be reserved for determination by
the Court of Appeal.
(2) On an application under subsection (1), the
Court of Appeal may order that the question
of law be reserved for its determination or
refuse the application with or without costs.
(3) If the Court of Appeal orders that the
question of law be reserved, the court to
which the order is directed must reserve the
question for determination by the Court of
Appeal.
23
s. 35
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 35
Part 3—Children, Youth and Families Act 2005
430VD Case to be stated if question of law
reserved
(1) If a court reserves a question of law under
section 430VA or 430VC, it must state a
case, setting out the question and the
circumstances in which the question has
arisen.
(2) The court must sign the case stated and
transmit it within a reasonable time to the
Court of Appeal.
(3) The Court of Appeal may return a case stated
transmitted to it under subsection (2) for
amendment and the court that stated the case
must amend it as required.
430VE General powers of Court of Appeal on
case stated
(1) The Court of Appeal may hear and finally
determine a question of law set out in a case
stated.
(2) The applicant is not required to attend the
hearing under subsection (1).
430VF Judgment to be entered on record
The Registrar of Criminal Appeals of the
Supreme Court must transmit the judgment
and order (if any) of the Court of Appeal to
the court that reserved the question of law
and that court must enter the judgment and
order (if any) on the court record.".
24
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 3—Children, Youth and Families Act 2005
36 New section 430WA inserted
After section 430W of the Children, Youth and
Families Act 2005 insert—
"430WA Powers and procedure
Division 7 of Part 6.3 of the Criminal
Procedure Act 2009 applies as if a reference
to that Part were a reference to this
Division.".
37 New section 622 inserted
At the end of Part 8.6 of the Children, Youth and
Families Act 2005 insert—
"622 Transitional provision—Criminal
Procedure Amendment Act 2012
Division 6A of Part 5.4 applies to a question
of law that arises in a proceeding on or after
the commencement of section 35 of the
Criminal Procedure Amendment Act
2012, irrespective of when the proceeding
commenced.".
__________________
25
s. 36
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 38
Part 4—Amendment of Other Acts
PART 4—AMENDMENT OF OTHER ACTS
Division 1—Magistrates' Court Act 1989
38 Authority conferred by search warrant
See:
Act No.
51/1989.
Reprint No. 16
as at
1 January
2012
and
amending
Acts Nos
51/2006,
52/2008,
12/2010,
65/2011,
23/2012 and
26/2012.
LawToday:
www.
legislation.
vic.gov.au
In section 78(5) of the Magistrates' Court Act
1989 omit "that is bulky or cumbersome".
39 Warrants
(1) In section 57(7A) of the Magistrates' Court Act
1989, after "sections" insert "263(4),".
(2) In section 57(7B) of the Magistrates' Court Act
1989, after "sections" insert "430(4),".
40 New clause 49 inserted into Schedule 8
After clause 48 of Schedule 8 to the Magistrates'
Court Act 1989 insert—
"49 Transitional provision—Criminal
Procedure Amendment Act 2012
Section 78(5) as amended by section 38 of
the Criminal Procedure Amendment Act
2012 applies to a search warrant issued on or
after the commencement of section 38 of that
Act.".
26
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 4—Amendment of Other Acts
s. 41
Division 2—Drugs, Poisons and Controlled Substances
Act 1981
41 Warrant to search premises
After section 81(1AA) of the Drugs, Poisons and
Controlled Substances Act 1981 insert—
"(1AB) For the purposes of subsection (1), a seized
thing may be brought before the Court by
giving evidence on oath to the Court as to the
present whereabouts of the thing and by
producing a photograph of it.".
42 New section 143 inserted
After section 142 of the Drugs, Poisons and
Controlled Substances Act 1981 insert—
"143 Transitional provision—Criminal
Procedure Amendment Act 2012
Section 81 as amended by section 41 of the
Criminal Procedure Amendment Act 2012
applies to a search warrant issued on or after
the commencement of section 41 of that
Act.".
27
See:
Act No.
9719.
Reprint No. 9
as at
1 July 2010
and
amending
Act Nos
39/2010,
43/2010,
64/2010,
29/2011,
41/2011,
51/2011,
43/2011,
14/2012 and
27/2012.
LawToday:
www.
legislation.
vic.gov.au
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 43
Part 4—Amendment of Other Acts
Division 3—Sentencing Act 1991
43 Sentence discount for guilty plea
See:
Act No.
49/1991.
Reprint No. 13
as at
17 February
2012
and
amending
Act Nos
68/2010,
65/2011 and
26/2012.
LawToday:
www.
legislation.
vic.gov.au
For section 6AAA(4) of the Sentencing Act 1991
substitute—
"(4) If the court makes a statement under this
section, it must record or cause to be
recorded (whether in writing or another
form) the matters stated under subsection (1),
(2) or (3), as the case may be.".
44 Aggregate sentence of imprisonment
(1) In section 9(4) of the Sentencing Act 1991, for
"If the Supreme Court or the County Court hears
and determines charges for summary offences
under section 242 or 243 of the Criminal
Procedure Act 2009 and imposes an aggregate
sentence of imprisonment in respect of 2 or more
of those offences" substitute "If a court imposes
an aggregate sentence of imprisonment in respect
of 2 or more offences".
(2) After section 9(4) of the Sentencing Act 1991
insert—
"(4A) For the avoidance of doubt, an aggregate
sentence of imprisonment may be imposed in
respect of convictions for offences that are
the subject of a rolled-up charge or a
representative charge.
Note
A representative charge is a charge in an indictment
for an offence that is representative of a number of
offences of the same type alleged to have been
committed by the accused. A rolled-up charge is a
charge in an indictment that alleges that the accused
28
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 4—Amendment of Other Acts
has committed more than one offence of the same
type between specified dates.".
45 Aggregate fines
(1) In section 51(2) of the Sentencing Act 1991, for
"If the Supreme Court or the County Court hears
and determines charges for summary offences
under section 242 or 243 of the Criminal
Procedure Act 2009 and proposes to impose an
aggregate fine in respect of 2 or more of those
offences" substitute "If a court imposes an
aggregate fine in respect of 2 or more offences".
(2) After section 51(2) of the Sentencing Act 1991
insert—
"(2A) For the avoidance of doubt, an aggregate fine
may be imposed in respect of convictions for
offences that are the subject of a rolled-up
charge or a representative charge.
Note
A representative charge is a charge in an indictment
for an offence that is representative of a number of
offences of the same type alleged to have been
committed by the accused. A rolled-up charge is a
charge in an indictment that alleges that the accused
has committed more than one offence of the same
type between specified dates.".
46 New section 145 inserted
After section 144 of the Sentencing Act 1991
insert—
"145 Transitional provisions—Criminal
Procedure Amendment Act 2012
(1) Section 9 as amended by section 44 of the
Criminal Procedure Amendment Act 2012
applies to the sentencing of a person for
offences on or after the commencement of
section 44 of that Act, irrespective of when
29
s. 45
Criminal Procedure Amendment Act 2012
No. 48 of 2012
s. 47
Part 4—Amendment of Other Acts
the offences were committed or the findings
of guilt were made.
(2) Section 51 as amended by section 45 of the
Criminal Procedure Amendment Act 2012
applies to the sentencing of a person for
offences on or after the commencement of
section 45 of that Act, irrespective of when
the offences were committed or the findings
of guilt were made.".
Division 4—Crimes Act 1958
47 Retention of copy of recording
See:
Act No.
6231.
Reprint No. 23
as at
1 April 2012
and
amending
Act Nos
16/2004,
49/2010,
65/2010 and
27/2011.
LawToday:
www.
legislation.
vic.gov.au
In section 464JC(2A) of the Crimes Act 1958, for
"authorised person" (where twice occurring)
substitute "investigating official".
__________________
30
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Part 5—Repeal of Amending Act
PART 5—REPEAL OF AMENDING ACT
48 Repeal of amending Act
This Act is repealed on 1 November 2013.
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).
═══════════════
31
s. 48
Criminal Procedure Amendment Act 2012
No. 48 of 2012
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 21 June 2012
Legislative Council: 16 August 2012
The long title for the Bill for this Act was "A Bill for an Act to amend the
Criminal Procedure Act 2009, the Children, Youth and Families Act
2005, the Magistrates' Court Act 1989, the Drugs, Poisons and
Controlled Substances Act 1981, the Sentencing Act 1991, the Crimes
Act 1958 and for other purposes."
32