Crimes (Criminal Trials) Act 1999
Act No. 35/1999
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1.
2.
3.
1
Purpose
Commencement
Definitions
1
1
2
PART 2—PRESENTMENT TO BE FILED
4.
3
Presentment to be filed
3
PART 3—PRE-TRIAL PROCEDURE
4
5.
6.
7.
8.
9.
10.
11.
Directions hearing
4
Summary of prosecution opening and notice of pre-trial
admissions
6
Defence response to summary of prosecution opening and notice
of pre-trial admissions
7
Provisions applicable to prosecution and defence
8
Expert evidence
9
Disclosure of questions of law
9
Taking of evidence from a witness prior to trial
10
PART 4—TRIAL
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
12
Judge constituting court
Defence response to prosecutor's opening
Judge's address to the jury
Evidence at trial
Comment on departure or failure
Names of defence witnesses
Cross-examination
Jury documents
Manner of giving evidence
Retrial
i
12
12
12
13
14
15
15
16
17
18
Section
Page
PART 5—GENERAL
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
19
Power to extend time
Parties must inform sheriff of certain events
Costs
Costs liability of legal practitioner
Costs order
Counsel required to retain brief for trial
Reports to the Legal Practice Board and Legal Ombudsman
Related trials
Service of documents by prosecutor
Exercise of prosecutor's functions and powers
Relationship with other legislation
Transitional provisions
19
19
19
21
22
22
23
23
23
24
24
24
PART 6—AMENDMENT AND REPEAL OF CERTAIN ACTS
26
34.
35.
36.
37.
38.
Amendment of Crimes Act 1958—application for extension
of time for the commencement of a trial
Amendment of Evidence Act 1958
55AC. Evidence of a witness at a subsequent trial
Amendments to the Magistrates' Court Act 1989
Amendments to the Sentencing Act 1991—sentencing
guidelines
Repeal of Crimes (Criminal Trials) Act 1993
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NOTES
26
27
27
27
29
30
31
ii
Victoria
No. 35 of 1999
Crimes (Criminal Trials) Act 1999†
[Assented to 8 June 1999]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is to increase the capacity
for judicial management of criminal trials and
make other changes for the purpose of improving
the efficiency of criminal trials.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
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(2) Subject to sub-section (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 sub-section (2) does
not come into operation before 1 September 1999,
it comes into operation on that day.
3. Definitions
In this Act—
"court" means the Supreme Court or the County
Court (as the case requires) at which
presentment is made, or at which it is
proposed to make presentment, for an
offence;
"day on which the trial is due to commence"
means the day on which the accused is due
to be put in the charge of the jury;
"directions hearing" means a directions hearing
under section 5;
"post-committal conference" means a postcommittal conference conducted under
Schedule 5 to the Magistrates' Court Act
1989;
"presentment" includes indictment;
"prosecutor" means the Director of Public
Prosecutions for Victoria or the Director of
Public Prosecutions for the Commonwealth;
"sexual offence" has the same meaning as in
section 3(1) of the Evidence Act 1958.
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PART 2—PRESENTMENT TO BE FILED
4. Presentment to be filed
(1) The court at which presentment is proposed to be
made for an offence may fix a date (at least
14 days ahead) for a directions hearing to be
conducted in relation to the trial of that offence.
(2) The prosecutor must—
(a) in the case of a trial for a sexual offence, not
less than 28 days before the day on which
the trial is due to commence; or
(b) in any other case, not less than 14 days
before the day on which the first directions
hearing is due to be conducted—
cause presentment to be made at, and filed in, the
court.
(3) Nothing in this section prevents the making and
filing of a fresh presentment.
(4) On the making and filing of a fresh presentment,
proceedings on any presentment previously made
and filed in relation to the same offence or a
related offence are permanently stayed.
(5) For the purposes of sub-section (4), two offences
are related to one another if they are founded on
the same facts or form or are part of a series of
offences of the same or a similar character.
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PART 3—PRE-TRIAL PROCEDURE
5. Directions hearing
(1) The court may, between the filing of the
presentment and the day on which the trial is due
to commence, from time to time on the application
of a party or of its own motion conduct a
directions hearing.
(2) At the beginning of the first directions hearing
each count in the presentment must be read to the
accused and the accused asked to plead to that
count.
(3) Despite sub-section (2), if the accused pleads not
guilty to one or more counts in the presentment
and indicates an intention to plead not guilty to
one or more remaining counts, it is not necessary
for those remaining counts to be read to the
accused and he or she must be taken to have
pleaded not guilty to those counts.
(4) At the first directions hearing the court may do
any one or more of the following—
(a) require the parties to provide an estimate of
the time expected to be needed for the trial;
(b) require the parties to advise as to the
estimated number and the availability of
witnesses for the trial, not including the
accused as a witness, and whether any
witnesses are from interstate or overseas;
(c) require the accused to advise whether he or
she is legally represented and has funding for
continued legal representation up to and
including the trial;
(d) require the parties to advise whether there
are any particular requirements of, or
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facilities needed for, witnesses and
interpreters.
(5) At any subsequent directions hearing the court
may do, or specify a time for it to do, any one or
more of the following—
(a) require the parties to advise whether they are
aware of any questions that require
determination before the day on which the
trial is due to commence;
(b) determine any question of law or procedure
that arises or that is anticipated to arise in the
trial;
(c) determine any question of fact that may be
determined lawfully by a judge alone
without a jury;
(d) determine any question of mixed law and
fact that may be determined lawfully by a
judge alone without a jury;
(e) require the prosecutor to serve on the
defence and file in court a copy of any
further evidence that he or she wishes to
introduce at the trial;
(f) order a party to make, file in court or serve
(as the case requires) any written or oral
material required by the court for the
purposes of this Act;
(g) allow a party to amend a document that has
been prepared by or on behalf of that party
under this Act;
(h) if of the opinion that it is in the interests of
justice to do so, dispense with or vary any
requirement imposed on a party by or under
this Act;
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(i) anything that it may do at the first directions
hearing under sub-section (4).
(6) Nothing in this section removes the requirement
for the accused to be arraigned in accordance with
the Crimes Act 1958 before the commencement
of the trial.
(7) The accused is required to be present at the first
and, except with the leave of the court, at any
subsequent directions hearing.
6. Summary of prosecution opening and notice of pretrial admissions
(1) Unless there has been a post-committal
conference and a magistrate has prepared a
written record of it in accordance with Schedule 5
to the Magistrates' Court Act 1989 or the court
otherwise directs, the prosecutor must not less
than 28 days before the day on which the trial is
due to commence, serve on the defence and file in
court—
(a) a summary of the prosecution opening; and
(b) a notice of pre-trial admissions.
(2) The summary of the prosecution opening must
outline—
(a) the manner in which the prosecution will put
the case against the accused; and
(b) the acts, facts, matters and circumstances
being relied upon to support a finding of
guilt.
(3) The notice of pre-trial admissions must contain a
copy of the statements of the witnesses whose
evidence, in the opinion of the prosecutor, ought
to be admitted as evidence without further proof
including evidence that is directed solely to
formal matters including—
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(a) continuity; or
(b) a person's age; or
(c) proving the accuracy of a plan, or that
photographs were taken in a certain manner
or at a certain time.
(4) Nothing in this section entitles the accused to
receive a copy of any document already served on
the accused under the Magistrates' Court Act
1989.
7. Defence response to summary of prosecution opening
and notice of pre-trial admissions
(1) The accused must, after having been served with a
copy of the documents referred to in section 6, not
less than 14 days before the day on which the trial
is due to commence serve on the prosecution and
file in court a copy of—
(a) the defence response to the summary of the
prosecution opening; and
(b) the defence response to the notice of pre-trial
admissions.
(2) The defence response to the summary of the
prosecution opening must identify the acts, facts,
matters and circumstances with which issue is
taken and the basis on which issue is taken.
(3) The defence response to the notice of pre-trial
admissions must indicate what evidence, as set out
in the notice of pre-trial admissions, is agreed to
be admitted as evidence without further proof and
what evidence is in issue and, if issue is taken, the
basis on which issue is taken.
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(4) Despite sub-sections (2) and (3), the accused is
not required to state—
(a) the identity of any defence witness other
than an expert witness; or
(b) whether the accused will give evidence.
8. Provisions applicable to prosecution and defence
(1) Unless in the opinion of the court there are
exceptional circumstances, the prosecutor and the
defence when opening their respective cases must
restrict themselves to the matters—
(a) set out in their respective documents served
and filed under this Part; or
(b) disclosed or identified by them, and recorded
by a magistrate, at a post-committal
conference—
as the case requires.
(2) For the purposes of sub-section (1), a change of
legal practitioner does not constitute exceptional
circumstances.
(3) Despite sub-section (1), at the trial the prosecutor
is not restricted to a verbatim presentation of the
summary of the prosecution opening and the
defence is not restricted to a verbatim presentation
of the defence response to the summary of the
prosecution opening as served and filed under this
Part.
(4) A party must inform the court and the other party
in advance of any intention to depart substantially
from a matter—
(a) set out in a document served and filed by
that party under this Part; or
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(b) disclosed or identified by that party, and
recorded by a magistrate, at a post-committal
conference—
as the case requires and, if the court so orders,
inform the court and the other party of the details
of the proposed departure.
9. Expert evidence
(1) The defence must, if intending to call a person as
an expert witness at the trial, at least 14 days
before the day on which the trial is due to
commence serve on the prosecution and file in
court a copy of a statement of the expert witness
in accordance with sub-section (2).
(2) The statement must—
(a) contain the name and address of the witness;
(b) describe the qualifications of the witness to
give evidence as an expert;
(c) set out the substance of the evidence it is
proposed to adduce from the witness as an
expert, including the opinion of the witness
and the acts, facts, matters and circumstances
on which the opinion is formed.
10. Disclosure of questions of law
(1) A party who intends to raise a question of law in a
criminal proceeding must, at least 14 days before
the day on which the trial is due to commence (or,
if the party is not aware within that period of the
question of law, as soon as possible after the party
becomes aware of it), notify the court that a
question of law has arisen that requires
determination.
(2) For the purposes of sub-section (1), a question of
law does not include a general proposition of law
relevant to all cases.
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(3) If the court is notified of a question of law under
sub-section (1) at least 14 days before the day on
which the trial is due to commence and all the
parties to the proceeding agree, the court may
determine the question of law entirely on the basis
of written submissions, without any physical
appearance by the parties or their representatives.
(4) If the parties have agreed to have the question of
law determined on the basis of written
submissions, the party who raised the question of
law must, at least 10 days before the day on which
the trial is due to commence, file in court and
serve on all other parties a copy of that party's
submission.
(5) Within 5 days after a party is served with a copy
of a submission under sub-section (4), that party
must file in court and serve on all other parties a
copy of a written submission in reply.
(6) Within 3 days after a party is served with a written
submission in reply under sub-section (5), that
party must file in court and serve on all other
parties a copy of a written submission in response
to the reply.
(7) If the parties have not agreed to have a question of
law that could be determined in accordance with
sub-section (3) determined in accordance with that
sub-section, the party who raised the question of
law must, at least 10 days before the day on which
the trial is due to commence, notify the court that
agreement has not been reached and request the
court to conduct a directions hearing.
11. Taking of evidence from a witness prior to trial
(1) Prior to the day on which a trial is due to
commence, a party to a criminal proceeding may
apply to the court for an order that the evidence of
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a person be taken at a time and place fixed by the
court.
(2) An application may only be made under subsection (1) if—
(a) the person was not available to be examined
as a witness at the committal proceeding; or
(b) a statement from the person was not included
in a hand-up brief served on the accused
under Schedule 5 to the Magistrates' Court
Act 1989—
and the person was not examined under section
56A of the Magistrates' Court Act 1989.
(3) An application under sub-section (1) must state
the grounds on which an order is sought.
(4) The court must not make an order under subsection (1) unless it is satisfied that it is in the
interests of justice that the evidence of the witness
be taken.
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PART 4—TRIAL
12. Judge constituting court
(1) The judge constituting the court when the trial of
an accused takes place before a jury need not be
the judge who constituted the court at a directions
hearing held in connection with the trial.
(2) Any ruling made by a judge at a directions
hearing who is not the trial judge is binding on the
trial judge unless, in the opinion of the trial judge,
it would not be in the interests of justice for the
ruling to be binding.
13. Defence response to prosecutor's opening
(1) In all trials before a jury the defence must,
immediately after the prosecution opening,
present to the jury the defence response to the
prosecution opening prepared in accordance with
Part 3 or in conformity with the matters disclosed
or identified by the defence, and recorded by a
magistrate, at a post-committal conference, as the
case requires.
(2) The trial judge may limit the length of the
prosecution opening or the defence response.
14. Judge's address to the jury
Immediately after the defence response to the
prosecution opening or at any other time the trial
judge thinks appropriate, the trial judge may
address the jury on—
(a) the issues in the trial; or
(b) the relevance to the conduct of the trial of
any admissions made, directions given or
matters determined prior to the
commencement of the trial.
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15. Evidence at trial
(1) With the leave of the court, the prosecutor or the
defence may introduce evidence at the trial before
the jury which was not recorded by a magistrate at
a post-committal conference or disclosed in
accordance with Part 3 and which represents—
(a) a substantial departure by a party from an
agreement reached at a post-committal
conference; or
(b) in the case of the prosecutor, a substantial
departure from—
(i) the summary of the prosecution
opening; or
(ii) the notice of pre-trial admissions—
as served on the accused and filed in court;
or
(c) in the case of the accused, a substantial
departure from—
(i) the defence response to the summary of
the prosecution opening; or
(ii) the defence response to the notice of
pre-trial admissions—
as served on the prosecution and filed in
court.
(2) The trial judge may allow the prosecutor after he
or she has closed his or her case to call evidence
in reply to evidence given by the defence which
could not reasonably have been foreseen by the
prosecution having regard to—
(a) the defence response to the summary of the
prosecution opening; and
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(b) the defence response to the notice of pre-trial
admissions—
as served on the prosecution and filed in court.
(3) Nothing in this section limits any other power of
the trial judge to allow the prosecutor to call
evidence after he or she has closed his or her case.
16. Comment on departure or failure
(1) Subject to sub-sections (2) and (3), the trial judge
or, with the leave of the court, a party may make
any comment that the trial judge thinks
appropriate on—
(a) a departure referred to in section 15(1); or
(b) a failure by a party to comply with a
requirement of this Act or an order made
under this Act.
(2) The trial judge may only grant leave to a party to
comment on a departure or failure if satisfied
that—
(a) the proposed comment is relevant; and
(b) the proposed comment is not likely to
produce a miscarriage of justice.
(3) A comment made by the trial judge or a party
must not—
(a) in the case of a departure, suggest that an
inference of guilt may be drawn from the
departure except in those circumstances in
which such an inference might be drawn
before the commencement of this section
from a lie told by an accused; and
(b) in the case of a failure—
(i) suggest that an inference of guilt may
be drawn from the failure except in
those circumstances in which such an
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inference might be drawn before the
commencement of this section from the
failure of an accused to adduce
evidence from a particular witness; or
(ii) suggest that the failure may be taken
into account in considering the
probative value of the prosecution
evidence except in those circumstances
in which a failure of an accused to give
evidence or adduce evidence from a
particular witness may be taken into
account for that purpose before the
commencement of this section.
17. Names of defence witnesses
At the close of the prosecution case, the trial judge
must call on the defence to indicate the names of
the witnesses, other than the accused, whom the
defence intends to call to give evidence at the
trial.
18. Cross-examination
(1) Without limiting any other power that the trial
judge has to forbid or disallow questions, the trial
judge may disallow any question asked of a
witness in the course of cross-examination in a
trial which appears to the trial judge—
(a) to have no substantial relevance to facts in
issue; or
(b) to be repetitive of an earlier question; or
(c) to be oppressive in the form, or manner, in
which it is asked.
(2) If in the opinion of the trial judge, the issue to
which a question asked of a witness in crossexamination is directed is not apparent, the trial
judge may require counsel to specify the issue to
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which the question is directed and its relevance to
that issue.
(3) Before the trial judge forbids or disallows a
question under sub-section (1), the parties may
make submissions to the judge as to whether the
question ought be allowed or disallowed.
19. Jury documents
(1) For the purpose of helping the jury to understand
the issues, the trial judge may order on the
application of a party or of his or her own motion
that copies of any of the following shall be given
to the jury in any form that the trial judge
considers appropriate—
(a) the presentment;
(b) the summary of the prosecution opening and
the notice of pre-trial admissions of the
prosecution;
(c) the defence response to the summary of the
prosecution opening and the defence
response to the notice of pre-trial
admissions;
(d) any document admitted as evidence;
(e) any statement of facts;
(f) the opening and closing speeches of the
prosecution and the defence;
(g) any address of the trial judge to the jury
under section 14;
(h) any schedules, chronologies, charts,
diagrams, summaries or other explanatory
material;
(i) transcripts of evidence;
(j) transcripts of any audio or audio visual
recordings;
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(k) the trial judge's summing up;
(l) any other document that the trial judge
thinks fit.
(2) The trial judge may specify in an order under subsection (1) when any material is to be given to the
jury.
20. Manner of giving evidence
(1) The trial judge may permit a person to give
evidence—
(a) with the consent of the parties, by the
witness reading from the witness' statement
prepared in advance of giving evidence;
(b) where the person is called in his or her
capacity as an expert witness, by the
presentation of audio or audio visual
material;
(c) by means of playing an audio or audio visual
recording;
(d) in any other manner that the trial judge
considers may be of assistance.
(2) Nothing in sub-section (1) precludes—
(a) in the case of paragraph (b) of that subsection, the questioning of an expert witness
by cross-examination or otherwise before,
during or after a presentation; or
(b) in the case of paragraph (c) of that subsection, if unanticipated issues arise during
the trial, the trial judge making an order that
the witness physically appear before the
court.
(3) Nothing in this section affects the operation of
sections 42A and 42B and Part IIA of the
Evidence Act 1958.
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21. Retrial
If a retrial is held, the court may treat any order
made, direction given or any other thing done at a
directions hearing held in connection with the
earlier trial as if it had been made, given or done
at a directions hearing held in connection with the
retrial unless to do so would, in the opinion of the
court, be inconsistent with any order made or
direction or ruling given on an appeal or would
otherwise not be in the interests of justice.
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s. 22
PART 5—GENERAL
22. Power to extend time
(1) On the application of a party or of its own motion,
the court may extend or abridge any time fixed by
or under this Act or by any order extending or
abridging time made under this section if it is of
the opinion that it is in the interests of justice to
do so.
(2) The court may extend time under sub-section (1)
before or after the time expires and whether or not
any application is made before the time expires.
23. Parties must inform sheriff of certain events
It is a duty of each party to a criminal proceeding
listed for trial before a jury to inform the sheriff
within the meaning of the Juries Act 1967 as
soon as practicable of any event of which the
party becomes aware that affects the question of
whether or not or when a jury will be required for
the trial and the dates on which persons will be
required to attend for jury service.
24. Costs
(1) If there has been—
(a) any unreasonable act or omission by, or on
behalf of, a party before the accused has
been put in the charge of the jury that the
court is satisfied resulted in prolonging the
trial; or
(b) a departure referred to in section 15(1); or
(c) a failure by a party to comply with a
requirement of this Act or an order made
under this Act—
the court may make any order that it thinks fit
with respect to the costs of and incidental to the
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trial and, for this purpose, it has full power to
determine by whom, to whom and to what extent
those costs are to be paid.
(2) An order under sub-section (1) may be made on
the application of a party or by the court of its
own motion.
(3) An order under sub-section (1) may be made
against—
(a) a party, whether the Crown or the accused;
or
(b) a party's legal practitioner or, in the case of a
legal practitioner who is employed by
another legal practitioner or a firm of legal
practitioners, his or her employer.
(4) The court must not make an order awarding costs
against a party in the exercise of its discretion
under sub-section (1) without giving that party a
reasonable opportunity to be heard.
(5) If the accused and the accused's legal practitioner
have complied with the requirements of this Act
and any orders made thereunder and the hearing
of a criminal proceeding is—
(a) discontinued or adjourned; and
(b) the reason for the discontinuance or the
adjournment was not attributable in any way
to the act, neglect or fault of an accused or
that accused's legal practitioner—
any indemnity certificate granted by the court
under section 16 or 17 of the Appeal Costs Act
1998 may include an indemnity certificate for the
accused's own costs incurred in consequence of a
requirement imposed on the accused under this
Act.
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25. Costs liability of legal practitioner
(1) If a legal practitioner for a party in a criminal
proceeding to which this Act applies, whether
personally or through a servant or agent, has
caused costs to be incurred improperly or without
reasonable cause or to be wasted by undue delay
or negligence or by any other misconduct or
default, the court may order that—
(a) all or any of the costs between the legal
practitioner and the client be disallowed or
that the legal practitioner repay to the client
the whole or part of any money paid on
account of costs; or
(b) the legal practitioner pay to the client all or
any of the costs which the client has been
ordered to pay to any party; or
(c) the legal practitioner pay all or any of the
costs payable by any party other than the
client.
(2) Without limiting sub-section (1), a legal
practitioner is in default for the purposes of that
sub-section if any proceeding cannot conveniently
be heard or proceed, or fails or is adjourned
without any useful progress being made, because
the legal practitioner failed to—
(a) attend in person or by a proper
representative; or
(b) file any document which ought to have been
filed; or
(c) file any document in court which ought to
have been filed; or
(d) be prepared with any proper evidence or
account; or
(e) otherwise proceed.
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(3) The court must not make an order under subsection (1) without giving the legal practitioner a
reasonable opportunity to be heard.
(4) The court may order that notice of any proceeding
or order against a legal practitioner under this
section may be given to the client in such manner
as the court directs.
26. Costs order
If the court determines that costs should be paid,
the order must provide—
(a) if the court is satisfied that a party or a
party's legal practitioner has reasonably
incurred additional costs as a consequence of
any act or omission of another party, for
payment of costs to the first-mentioned party
or that party's legal practitioner;
(b) in any other case, for payment of costs into
court for payment into the Consolidated
Fund.
27. Counsel required to retain brief for trial
(1) A legal practitioner who has been briefed or
otherwise agreed to appear for an accused at a
trial must, at least 7 days before the day on which
the trial is due to commence, advise the court of
his or her intention to appear for the accused.
(2) A legal practitioner may only relinquish a brief to
appear or withdraw from an agreement to appear
for an accused within 7 days before the day on
which the trial is due to commence with leave of
the court.
(3) In an application for leave under sub-section (2),
the court may make an order as to costs to be paid
personally by the legal practitioner if of the
opinion that in the circumstances of the case—
22
s. 26
s. 28
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
(a) the agreement to appear at trial for the
accused or the acceptance of a brief to
appear for the accused at trial; or
(b) the withdrawal from an agreement to appear
for the accused at trial or the relinquishment
of a brief to appear for the accused at trial—
is unreasonable.
28. Reports to the Legal Practice Board and Legal
Ombudsman
If in the opinion of the court there has been, on the
part of a legal practitioner for a party, a failure to
comply with a requirement of this Act or an order
made under this Act, including a failure to comply
with an order or requirement under section 5, the
court may make a complaint about the legal
practitioner and refer the complaint to the Legal
Practice Board or the Legal Ombudsman for such
action as may be required under the Legal
Practice Act 1996.
29. Related trials
A court is not prevented from being constituted at
a trial by the same judge who constituted the court
at an earlier trial where the offences charged at the
later trial are founded on the same facts or form or
are part of a series of offences of the same or a
similar character merely because the judge made a
ruling at the earlier trial or at a directions hearing
held in connection with the earlier trial on any
question about the admissibility of evidence or
other question of law that, in his or her opinion, is
likely to be contentious in the later trial.
30. Service of documents by prosecutor
If by or under this Act the prosecutor is required
or permitted to serve a document on the defence at
any time, the document must be taken to have
23
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
been duly served on the defence if it is sent by
registered post addressed to the legal practitioner
for the accused at that legal practitioner's business
address.
31. Exercise of prosecutor's functions and powers
A person briefed to appear in a proceeding on
behalf of the Director of Public Prosecutions may
exercise any function or power of the prosecutor
under this Act in relation to that proceeding.
32. Relationship with other legislation
Nothing in this Act limits the operation of—
(a) section 391A or 391B of the Crimes Act
1958; or
(b) Order 4 of Chapter VI of the Rules of the
Supreme Court; or
(c) Order 11 of Chapter II of the Rules of the
County Court.
33. Transitional provisions
(1) This Act applies only to and in relation to—
(a) trials of an offence, or of an offence that is
not materially different from an offence, for
which the accused was committed on a
committal proceeding on or after the
commencement of section 4; or
(b) trials for which presentment is made on or
after that commencement other than trials of
an offence, or of an offence that is not
materially different from an offence, for
which the accused was committed on a
committal proceeding before that
commencement.
(2) The Crimes (Criminal Trials) Act 1993
continues to apply to and in relation to a trial to
24
s. 31
s. 33
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
and in relation to which this Act does not apply by
virtue of sub-section (1) as if that Act had not
been repealed.
(3) Despite sub-sections (1) and (2), on a joint
application by all the parties to a trial to and in
relation to which this Act does not apply by virtue
of sub-section (1) the court may order that—
(a) this Act is to apply to and in relation to the
trial; and
(b) the Crimes (Criminal Trials) Act 1993 is to
cease to apply to and in relation to the trial—
to the extent set out in the order.
(4) If an order is made under sub-section (3), then
this Act applies, and the Crimes (Criminal
Trials) Act 1993 ceases to apply, to and in
relation to the trial to the extent set out in the
order.
_______________
25
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
s. 34
PART 6—AMENDMENT AND REPEAL OF CERTAIN ACTS
34. Amendment of Crimes Act 1958—application for
extension of time for the commencement of a trial
(1) In section 353 of the Crimes Act 1958, after subsection (6) insert—
"(6A) An application for an extension of time
under sub-section (5) may be made to the
court orally.
(6B) Unless the court otherwise orders, no
material in support of the application need be
filed.
(6C) On the making of an order under sub-section
(5), the Judge's Associate must annotate the
presentment to indicate that the time for the
commencement of the trial has been
extended by the period set out in the order.".
(2) In section 359A of the Crimes Act 1958, after
sub-section (3) insert—
"(4) An application for an extension of time
under sub-section (2) may be made to the
court orally.
(5) Unless the court otherwise orders, no
material in support of the application need be
filed.
(6) On the making of an order under sub-section
(2), the Judge's Associate must annotate the
presentment to indicate that the time for the
commencement of the trial has been
extended by the period set out in the order.".
26
No. 6231.
Reprint No. 14
as at 1 July
1998. Further
amended by
Nos 65/1998
and 80/1998.
s. 36
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
35. Amendment of Evidence Act 1958
No. 6246.
Reprint No. 12
as at
1 September
1998. Further
amended by
No. 80/1998.
After section 55AB of the Evidence Act 1958
insert—
"55AC. Evidence of a witness at a subsequent trial
(1) For the purposes of this section, two offences
are related to one another if they are founded
on the same facts or form or are part of a
series of offences of the same or a similar
character.
(2) If on the trial of a person for an offence it
appears to the court that a person has given
evidence in a previous trial and that evidence
was recorded and transcribed under Part VI
and that person—
(a) is refusing to be sworn or give
evidence; or
(b) is dead; or
(c) is out of Victoria; or
(d) is so ill as not to be able to travel; or
(e) cannot, after diligent search be found;
or
(f) has become mentally ill; or
(g) is keeping or is being kept out of the
way to avoid giving evidence; or
(h) is incapable of giving evidence—
the evidence of that person, as recorded and
transcribed, is admissible in any subsequent
trial of the same person for the same offence
or a related offence.".
36. Amendments to the Magistrates' Court Act 1989
27
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
(1) In Schedule 2 to the Magistrates' Court Act
1989—
(a) in clause 1A, sub-clause (8) is repealed;
(b) after clause 1A insert—
"1B. Expert witness statement
Whether or not the informant serves a brief of
evidence on the defendant in accordance with
section 37, the defendant must serve on the
informant at least 7 days before the mention
date (or, if the statement is not then in
existence, as soon as possible after it comes
into existence) a copy of the statement of any
expert witness whom the defendant intends to
call to give evidence at the hearing.".
(2) In Schedule 5 to the Magistrates' Court Act
1989—
(a) in clause 24(1), after paragraph (b) insert—
"; and
(c) warn the defendant that if he or she wishes to
be legally aided, that it is the defendant's
responsibility to make application to Victoria
Legal Aid as soon as possible.";
(b) after clause 24(3) insert—
"(4) Immediately after the conclusion of the
committal proceeding, the magistrate who
conducted the proceeding must inform the
parties that they may request the magistrate to
convene and conduct a post-committal
conference as soon as possible.
(5) If the magistrate convenes a post-committal
conference the parties must attend.
(6) The purposes of a post-committal conference
are—
(a) for the prosecution to disclose the main
evidence being relied on to support a
finding of guilt for the offence on which
the defendant was committed for trial;
28
No. 51/1989.
Reprint No. 5
as at 1 July
1998. Further
amended by
Nos 60/1998
and 102/1998.
s. 37
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
(b) to identify any matters that a party
believes will require resolution prior to
trial;
(c) to identify any witnesses that the
Director of Public Prosecutions, by
agreement with the defendant, need not
call to give evidence at trial;
(d) to disclose whether any and what
evidence of a witness referred to in
paragraph (c) is admitted by the
defendant as evidence without further
proof;
(e) to identify what evidence is disputed by
the defendant and the reasons for such
dispute.
(7) If the magistrate and the parties to a postcommittal conference agree that the purposes
set out in sub-clause (6) have been substantially
met, the magistrate must prepare a written
record of the matters disclosed or identified, for
signing by the parties (or their legal
practitioners) and the magistrate.
(8) A written record under sub-clause (7) must
contain a statement to the effect that the parties
have agreed that the matters disclosed or
identified may be disclosed or identified at trial.
(9) Whether or not a post-committal conference
takes place, the magistrate who conducted the
committal proceeding may make a
recommendation to the court in which the
presentment is filed that a directions hearing
under section 5 of the Crimes (Criminal
Trials) Act 1999 may be desirable.".
37. Amendments to the Sentencing Act 1991—sentencing
guidelines
29
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
(1) In section 5(2C) of the Sentencing Act 1991—
(a) for "on the trial" substitute "on or in
connection with the trial";
(b) after "indication of" insert "remorse or".
No. 49/1991.
Reprint No. 4
as at 1 July
1998. Further
amended by
No. 57/1998.
(2) For section 5(2D) of the Sentencing Act 1991
substitute—
"(2D) In having regard to the conduct of the
offender under sub-section (2C), the court
may consider the extent to which the
offender complied with, or failed to comply
with, a requirement imposed on the offender
by or under the Crimes (Criminal Trials)
Act 1999.".
38. Repeal of Crimes (Criminal Trials) Act 1993
The Crimes (Criminal Trials) Act 1993 is
repealed.
═══════════════
30
No. 60/1993.
Reprint No. 1
as at 23 July
1998.
Crimes (Criminal Trials) Act 1999
Act No. 35/1999
Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 6 May 1999
Legislative Council: 26 May 1999
The long title for the Bill for this Act was "to improve the efficiency of
criminal trials, to amend the Crimes Act 1958, the Evidence Act 1958,
the Magistrates' Court Act 1989 and the Sentencing Act 1991, to
repeal the Crimes (Criminal Trials) Act 1993 and for other purposes."
31