YOUTH COURT OF SOUTH AUSTRALIA
RULES
being
Youth Court of South Australia Rules (Govt. Gaz. 23 December 1993, p. 3090)
INDEX
1.00
CITATION AND COMMENCEMENT
SECTION A: GENERAL APPLICATION
2.00
3.00
4.00
5.00
6.00
7.00
8.00
9.00
10.00
11.00
12.00
13.00
14.00
Definitions
Seal
Practice Directions/Case Management Principles
Compliance
Documents
Forms
Legal Representation
Summons to Witness
Witness Fees and Expenses
Authority to Enter and Inspect
Appeals
Interpreters
Court Records
SECTION B: FAMILY CONFERENCES UNDER THE YOUNG OFFENDERS ACT
15.00
16.00
17.00
18.00
Notification
Conduct of Family Conferences
Result of Conferences
Records of Family Conferences
SECTION C: CRIMINAL JURISDICTION
19.00
20.00
21.00
22.00
Magistrates Court Rules to Apply
Magistrates Courts Forms Adapted
Young Offenders Act Forms
Election to be Treated as an Adult
SECTION D: CHILD PROTECTION JURISDICTION
23.00
24.00
25.00
26.00
27.00
28.00
29.00
30.0
31.0
32.00
Application for Investigation and Assessment Order
Application for Care and Protection Orders
Accompanying Documents
Affidavits
Evidence
Expert Evidence
Details of Evidence for Trial
Discovery and Inspection
31.00
Conferences
Procedural Orders
2
33.00
34.00
35.00
36.0
Undertakings
Persons not Party/Joinder
Service
Amendment
YOUTH COURT OF SOUTH AUSTRALIA RULES
Pursuant to Section 32 of the Youth Court Act 1993 and all other enabling powers, we the
undersigned Judges of the Youth Court do hereby make the following Rules.
1.00
CITATION AND COMMENCEMENT
1.01
These Rules may be cited as the Youth Court Rules.
1.02
These Rules shall come into operation on the 1st day of January, 1994.
1.03
Subject to the Acts, these Rules and any practice directions issued by the Court, the
practice and procedure of the Court shall be that which pertained in the Children's Court
immediately prior to the commencement of the Youth Court Act 1993.
1.04
These Rules shall be divided into the following sections:
Section A
Section B
Section C
Section D
-
Rules of General Application
Rules relating to Family Conferences under the Young Offenders Act
Rules relating to the Criminal Jurisdiction
Rules relating to the Child Protection Jurisdiction
SECTION A
GENERAL APPLICATION
2.00 DEFINITIONS
2.01
In these Rules unless the contrary intention appears;
(a)
"the Acts" means the Summary Procedure Act, Youth Court Act, Young
Offenders Act, Children's Protection Act and Adoption Act;
(b)
"Adoption Act" means Adoption Act 1988;
(c)
"Children's Protection Act" means Children's Protection Act 1993;
(d)
"Costs" means party and party costs and includes disbursements, witness fees,
experts' charges and other costs of and incidental to the conduct of proceedings;
(e)
"Court" means a Judge or Magistrate of the Youth Court of South Australia;
(f)
"Principal Registry" means the Registry of the Youth Court of South Australia at
Adelaide;
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(g)
"Sealed" means sealed with the seal of the Court or otherwise endorsed by an
officer of the Court;
(h)
"Senior Judge" means the Senior Judge or Acting Senior Judge of the Youth
Court of South Australia;
(i)
"Youth Court Act" means the Youth Court Act 1993;
(j)
"Young Offenders Act" means the Young Offenders Act 1993;
(k)
Reference to an Act shall mean that Act as amended from time to time.
3.00 SEAL
3.01
The Youth Court of South Australia shall have a seal inscribed on it "The Seal of the
Youth Court of South Australia" and the name of the registry to which the seal relates.
3.02
The Seal of a Registry shall be in the custody of the Registrar of each Registry.
3.03
The Seal of a Registry of the Court shall be fixed on such process or orders issuing from
that Registry as the Senior Judge shall direct.
4.00
PRACTICE DIRECTIONS/CASE MANAGEMENT PRINCIPLES
4.01
The Senior Judge may issue, vary or revoke Practice Directions and the practice and
procedure of the Court, subject to these Rules, must be in conformity with the Practice
Directions.
4.02
The Registrar of the Principal Registry must maintain a register of all Practice
Directions.
4.03
The practice, procedure and processes of the Court shall have as their goal the
elimination of any unnecessary lapse of time from the date of initiation of proceedings to
their final determination.
4.04
Case Management principles shall be incorporated in Practice Directions with the object
of:
a)
b)
c)
d)
e)
promoting the just determination of litigation;
limiting the cost of proceedings for the litigant where possible;
facilitating the timely disposal of business;
disposing efficiently of the business before the Court;
maximising the efficient use of available judicial and administrative resources.
4.05
The Court may at any time of its own motion on notice to the parties review the progress
of proceedings and make such orders or give such directions to lead to their efficient and
timely disposal and make such orders concerning default committed by any party as it
may consider just and expedient.
4.06
A Court or a Registrar exercising jurisdiction under these rules shall have regard to the
need to provide a prompt and inexpensive resolution of the matters in issue between the
parties.
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5.00
COMPLIANCE
5.01
The Court shall have power at any time to dispense with compliance with all or any part
of these Rules and on such conditions or terms as the Court directs (including a Rule
relating to or governing powers that the Court may exercise of its own motion).
5.02
Where the Court is satisfied in the circumstances of the particular case that:
(a)
the provisions of these Rules or the practice directions do not make adequate
provision for a matter of practice or procedure, or;
(b)
a difficulty arises or doubt exists as to a matter of practice or procedure,
it may give such directions with respect to the practice and procedure to be followed in
the case as it considers necessary.
5.03
It is sufficient compliance with the Rules as to the form of any document if the document
is substantially in accordance with the appropriate form.
6.00 DOCUMENTS
6.01
The Registrar shall cause the date of filing to be marked on every document filed.
6.02
A document to be filed must not be lodged by facsimile transmission without the leave
of the Registrar.
6.03
An address for service, contact person, and telephone number (and, if applicable, the
facsimile transmission number) of any party filing or serving any document must appear
on the document unless the Court or a Registrar directs otherwise.
7.00
FORMS
7.01
Forms under the following sections of the Youth Court Act shall comply with the
corresponding forms set out hereunder as numbered and appearing in the Schedule.
Section 18
Section 18(3)(b)
Section 20(2)
Section 21(a)
Section 21(b)
Section 27
Summons to Witness.
Application for a warrant re witness.
Authority to enter and inspect.
Summons requiring Custodian to produce
person.
Warrant authorising Sheriff to take person
from Custodian to Court.
Warrant of commitment for contempt.
Form No. 11Y
Form No. 12Y
Form No. 27Y
Form No. 13Y
Form No. 14Y
Form No. 24Y
7.02
Forms not provided for herein may be prepared at the direction of the Court or by the
Registrar on behalf of the Court.
7.03
The party instituting a proceeding or process shall prepare the requisite form and shall
provide such number of copies thereof as the Registrar directs.
7.04
The party required to serve a form shall do so by serving a sealed copy of the form in the
manner directed by the Acts, Rules, or by the Court.
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8.00
LEGAL REPRESENTATION
8.01
The legal representative of a party to proceedings must inform the Court of that status
and of any change therein as soon as practicable.
9.00
SUMMONS TO WITNESS
9.01
At the time of service of a summons to witness, the person serving the summons shall, if
directed by the Court or Registrar, tender to the person served sufficient money for
return travel by the person served between the person's place of residence or
employment (whichever is appropriate) and the Court.
9.02
Any summons to witnesses shall not without leave of the Court or Registrar be served
less than seven days before the date on which the evidence is required to be given or the
evidentiary material produced.
10.00 WITNESS FEES AND EXPENSES
10.01 A person who attends in obedience to a summons or request to give evidence or produce
evidentiary material is entitled to be paid fees and travelling allowances according to the
scale of fees and allowances payable to witnesses in the Supreme Court of South
Australia, or in special circumstances fees and allowances as the Court or a Registrar
directs (less any amount previously paid to the person in accordance with Rule 9 hereof).
10.02 Unless the Court or a Registrar otherwise orders fees and travelling expenses payable
under these Rules are payable by the party at whose request the summons was issued or
the witness called.
11.00 AUTHORITY TO ENTER AND INSPECT
11.01 An authority pursuant to Section 20(2) (entry and inspection of property) shall be issued
at the direction of a Judge or Magistrate.
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12.00 APPEALS
12.01 A Notice of Appeal pursuant to Section 22(2)(a) of the Youth Court Act (appeal from
interlocutory judgment of Magistrate or justices) shall comply with Form No. 36Y.
12.02 A Notice of Appeal pursuant to Section 22(2)(b)(c) or (d) (appeal to single Judge or the
Full Court of the Supreme Court of South Australia) shall comply with Form No. 37Y.
12.03 An appeal pursuant to Section 22(2)(a) shall be instituted by filing in the Youth Court
Principal Registry and serving on all parties a Notice of Appeal.
12.04 An appeal pursuant to Section 22(2)(a) shall be instituted within 14 days from the giving
of the interlocutory judgment complained of, or such extended time as the Youth Court
may fix.
12.05 The Senior Judge may give such directions as may be deemed fit for the conduct of any
appeal pursuant to Section 22(2)(a).
13.00 INTERPRETERS
13.01 If a party or witness of the party needs the services of an interpreter, the party, upon
receiving the date fixed for the trial, must forthwith notify the Registrar of that need and
of the language and dialect to be interpreted.
13.02 If the party fails to so notify the Registrar, costs occasioned by the non-attendance of the
appropriate interpreter may be ordered against the party in default.
14.00 COURT RECORDS
14.01 The records of the Court shall be in the custody and under the control of the Registrar.
14.02 Any party to a proceeding or solicitor or counsel for any party may search or inspect any
record in the said proceeding or take or request a copy thereof (on payment of the
appropriate copying fee) except to the extent that the same would be contrary to any Act,
Rule or order of the Court.
14.03 Subject to the provisions of the Acts and these Rules, a person other than a party and
party's solicitor or counsel shall not be entitled to search or inspect any records or to take
or request any copy thereof without first having obtained the leave of a Judge.
14.04 A Judge or Magistrate may give such directions as shall be necessary to produce any
record of the Court to any other Court or tribunal.
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SECTION B
FAMILY CONFERENCES UNDER THE YOUNG OFFENDERS ACT
15.00 NOTIFICATION
15.01 A notification to a Youth Justice Co-ordinator by a Police Officer requesting that a
Family Conference be convened shall comply with Form No. 61.
15.02 As soon as practicable after receipt of the notification, the Youth Justice Co-ordinator
shall fix a date, time and place for the Family Conference and issue such notices and
invitations to the relevant persons as required by the Act.
15.03 The following forms shall comply with the corresponding forms set out hereunder and as
numbered and appearing in the Schedule:
a)
b)
c)
d)
e)
Notice to the Youth.
Form No.62.
Invitations to the Guardians of the Youth. Form No.63a.
Invitation to the Victim.
Form No.63b.
Invitations to other persons.
Form No.63c.
Notice to Police.
Form No.64.
15.04 Notices or invitations to Family Conferences are sufficiently served if:
a)
b)
served personally on the youth or otherwise in accordance with the directions of
the Youth Justice Co-ordinator, and;
for other persons if posted by pre-paid ordinary post to the last known residential
or business address of that person.
16.00 CONDUCT OF FAMILY CONFERENCES
16.01 At the Family Conference, the Youth Justice Co-ordinator shall:
a)
b)
c)
d)
e)
f)
g)
ensure that the Representative of the Commissioner of Police provides full
particulars and details of the allegations and the offences to which such
allegations relate and, if relevant, previous offending behaviour;
encourage the youth to participate fully in the Conference and be heard on all
relevant issues;
ensure that the Conference does not proceed in relation to any offence which is
not admitted by the youth;
encourage the victim or the victim's representative to participate in the
Conference and be heard on all relevant issues;
encourage the guardians of the youth, relatives and other persons who have
accepted an invitation to attend the Conference to participate and be heard on all
relevant issues;
subject to sub-rule (g) hereof ensure that the youth participates personally in the
Conference and that representations are not made to the Conference by a legal
practitioner or other person purporting to act on behalf of the youth;
without adjourning the Conference, allow the youth and any legal practitioner
advising the youth, the guardians, youth worker, or other participant (if present
or available by telephone) an opportunity to confer in order that the youth may
be advised.
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16.02 The Youth Justice Co-ordinator will:
a)
b)
c)
encourage and facilitate discussion and mediation;
provide details of available options to the Conference;
prepare details of the outcome and undertakings agreed.
17.00 RESULTS OF FAMILY CONFERENCE
17.01 If the Family Conference fails to reach a decision, the Youth Justice Co-ordinator shall
refer the matter forthwith to the Youth Court by notifying the Registrar.
17.02 As soon as practicable thereafter, the Registrar shall notify the youth, the guardians of
the youth, the representative of the Police Commissioner, and the victim of the date and
place of the Court hearing of the matter in accordance with Form Nos. 65, 66, and 67.
17.03 If a formal caution is administered at the Conference, the Youth Justice Co-Ordinator
shall file with the Registrar a form which complies with Form No. 70.
17.04 Family Conference undertakings entered into by the youth shall comply with Form No.
68 and be filed by the Youth Justice Co-ordinator with the Registrar.
17.05 Any person undertaking at a Family Conference to supervise any undertaking by the
youth shall, upon compliance by the youth, complete a record of compliance in
accordance with Form No. 69 and forthwith lodge the same with the Registrar.
17.06 Upon the Youth Justice Co-ordinator being satisfied that a youth has:
a)
b)
failed to attend at the time appointed for a Family Conference, or;
not complied with a requirement of the Family Conference or undertaking agreed
at the Family Conference,
the Youth Justice Co-ordinator shall give notice to the Commissioner of Police of such
failure or non-compliance in accordance with Form No. 71.
17.07 Upon conclusion of the Family Conference, the Youth Justice Co-ordinator shall provide
to the youth, the police representative, the guardians of the youth, and the victim and any
person who agrees to supervise an undertaking a copy of the undertaking which has been
or is to be filed with the Registrar.
17.08 The Youth Justice Co-ordinator shall explain to any youth who gives an undertaking and
to any person who agrees to supervise any undertaking:
1)
2)
3)
the provisions of the undertaking, and;
the conditions relating thereto;
together with the consequences of non-compliance.
18.00 RECORDS
18.01 Records of Family Conferences shall be kept under the custody and control of the
Registrar.
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18.02 Records of Family Conferences shall be kept confidential and not disclosed to any
person without the consent of the Youth Justice Co-Ordinator and all persons present at
the conference or the consent of a Judge of the Youth Court.
SECTION C
CRIMINAL JURISDICTION
19.00 MAGISTRATES COURT RULES TO APPLY
19.01 The provisions of the following rules of the Magistrates Courts Rules 1992 as they
applied on the 1st day of January, 1994, shall apply to proceedings in the Criminal
Jurisdiction of the Youth Court under the Young Offenders Act with such modification
as necessary or as hereinafter set out, namely; Rules 7, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 21 (except 21.01, 21.02, 21.03) 23, 24, 25, 26, 27, 33, 34, 35, 43 and 44.
20.00 MAGISTRATE COURTS FORMS ADAPTED
20.01 Forms referred to hereafter shall comply with the corresponding Forms as numbered and
appearing in the Schedule.
Description
Youth Court
Form No.
Complaint ................................................................................................................................ 1Y
Complaint and Summons ........................................................................................................ 2Y
Complaint and Summons with Endorsements and Form for Pleading
Guilty in Writing ..................................................................................................................... 3Y
Information .............................................................................................................................. 4Y
Information and Summons ...................................................................................................... 5Y
Summons .............................................................................................................................. 5AY
Warrant of Apprehension ........................................................................................................ 6Y
Warrant of Remand ................................................................................................................. 7Y
Election Form (new form) ....................................................................................................... 8Y
Committal for Trial/Sentence ................................................................................................ 10Y
Notice to Defendant as to a Penalty ...................................................................................... 15Y
Notice to Defendant as to Penalty Sought............................................................................. 16Y
Notice of Previous Convictions and Prior Offending (new form) ........................................ 17Y
Notice of Pecuniary Penalty .................................................................................................. 18Y
Application for Rehearing (set aside).................................................................................... 19Y
Alibi Evidence ....................................................................................................................... 21Y
Proof of Service by Certificate .............................................................................................. 22Y
Complaint for a Summary Protection Order ......................................................................... 28Y
Summons to Defendant ......................................................................................................... 29Y
Summary Protection Order.................................................................................................... 30Y
Summary Protection Order and Summons to a Defendant................................................... 31Y
Application to Vary or Revoke Summary Protection Order................................................. 32Y
Summary Protection Order as Varied ................................................................................... 33Y
Order of Revocation of Summary Protection Order ............................................................. 34Y
Summary Protection Order and Summons to Defendant (telephone order)...................... 34AY
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Firearms Order.................................................................................................................... 34BY
Notice of Not Guilty Hearing ................................................................................................ 35Y
21.00 YOUNG OFFENDERS ACT FORMS
21.01 Forms under the following sections of the Young Offenders Act shall comply with the
corresponding forms set out hereunder as numbered and appearing in the Schedule.
Youth Offenders Act
Section
Section 26
Section 27
Section 32
Section 34
Description
Undertaking and Notice to Youth
Undertaking from guardian
Request for social background
and personal circumstances report
Order that guardian(s) attend Court
Youth Court Form
Form No. 40
Form No. 41
Form No. 42
Form No. 39
22.00 ELECTION TO BE TREATED AS AN ADULT
22.01 The form of election pursuant to Section 17(3)(b) of the Young Offenders Act shall
comply with Form No. 8Y.
22.02 The youth charged shall be provided with a form of election:
a)
b)
where the youth is served with a summons at the time of service of the summons,
and;
in any other case when the youth first appears before the Court.
22.03 An election is made by filing a duly completed form of election in the Court.
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SECTION D
CHILD PROTECTION JURISDICTION
23.00 APPLICATION FOR INVESTIGATION AND ASSESSMENT ORDERS
23.01 An Application for an Investigation and/or Assessment Order shall be in accordance
with Form No. 101 and shall set out precisely the grounds upon which the application is
made and the order or orders sought.
23.02 An Application for Extension, Variation or Discharge of an Investigation and/or
Assessment Order shall be in accordance with Form No. 104 and shall state precisely the
grounds upon which the application is made and the order or orders sought.
24.00 APPLICATION FOR CARE AND PROTECTION ORDER(S)
24.01 An Application for Care and Protection Order(s) shall be in accordance with the Form
No. 106 and shall state precisely the grounds upon which the application is made and the
order or orders sought.
24.02 An Application for Variation or Revocation of a Care and Protection Order shall be in
accordance with Form No. 109 and shall state precisely the grounds upon which the
application is made and the order or orders sought.
25.00 ACCOMPANYING DOCUMENTS
25.01 Unless otherwise directed by the Court, all applications shall be accompanied by:
(a)
an affidavit sworn or affirmed by a person authorised by the Minister, Chief
Executive Officer or the applicant (as the case may be) providing brief
particulars of the evidence upon which the grounds are based and verifying the
application;
(b)
any report or document referred to in the application or affidavit or upon which
the applicant seeks to rely.
25.02 The applicant shall serve sealed copies of the application and all accompanying
documents upon the other parties.
25.03 Any party opposing an application may file in the Registry and serve on all other parties
one or more affidavits setting out the grounds upon which that party opposes the
application and orders sought, and providing brief particulars of the evidence upon
which such opposition is based, provided that a party shall not be required to file an
affidavit in order to oppose any orders sought.
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26.00 AFFIDAVITS
26.01 The first page of an affidavit shall have a heading which sets out the particulars of the
Court, file number, parties, and date of filing in the same sequence as the application to
which it relates.
26.02 The body of an affidavit shall be divided into paragraphs numbered consecutively, each
paragraph being as far as possible confined to a distinct portion of the subject matter.
26.03 A document to be used in conjunction with an affidavit shall be annexed to the affidavit.
26.04 The Court may at any stage of the proceedings order to be struck out any matter in an
affidavit which:
(a)
(b)
is unnecessary, irrelevant, prolix, scandalous or argumentative, or;
sets out opinions other than the opinions of persons properly qualified to give
them.
26.05 Where in an affidavit an allegation is made based upon information and belief, the
deponent shall identify the source and ground of the information upon which the belief is
based provided that nothing in this Rule shall require the disclosure of information
which would otherwise be in breach of the Children's Protection Act.
26.06 Where a deponent relies upon the opinion of an expert, that expert shall be identified, the
date of the opinion so relied upon disclosed, and any report containing the opinion of
expert annexed to the affidavit.
27.00 EVIDENCE
27.01 At the hearing of any application other than the trial of an Application for Care and
Protection Orders, evidence shall be given by way of affidavit unless the Court otherwise
directs.
27.02 At the trial of an Application for Care and Protection Orders, the evidence shall be given
orally provided that upon the consent of all parties evidence may be given by way of
affidavit or report.
27.03 In any proceedings before the Court pursuant to the Children's Protection Act, the Court
may of its own motion call any person before it as a witness to give evidence or produce
evidentiary material.
27.04 Where a person is called under the preceding Rule, the Court may give such directions as
to the examination and cross-examination of that person as it thinks fit.
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28.00 EXPERT EVIDENCE
28.01 "Expert" means a person who has such knowledge or experience of or in connection
with a question arising in proceedings that his or her opinion on the question would be
admissible in a Court as evidence.
28.02 The Court may at any stage of proceedings pursuant to the Children's Protection Act on
application by a party or of its own motion:
(a)
(b)
appoint an expert as Court Expert to inquire into and report on any issue of fact
or opinion other than an issue involving questions of law or construction arising
in the proceedings, and;
give directions to extend or supplement, or otherwise in relation to any such
inquiry or report.
28.03 A Court Expert shall be a person agreed upon between the parties or if agreement is not
possible a person nominated by the Court.
28.04 A direction pursuant to the Rule 28.02(b) may authorise and make provision for the
conduct of an experiment or a testing procedure for the purposes of an inquiry or report.
28.05 A Court Expert shall send the report together with as many copies of the report as the
Registrar directs to the Registrar.
28.06 Where the report has been received by the Registrar the Registrar shall (unless otherwise
directed by the Court) send one copy of the report to each of the parties to the
proceedings.
28.07 The Court may receive the report in evidence and permit oral examination of the Court
Expert.
28.08 Unless the Court otherwise directs, a party who intends to call expert evidence at any
trial shall, in the case of the applicant not later than 14 days, and in the case of other
parties not later than 7 days prior to the date fixed for trial, file in the Registry and serve
on each party to the proceedings a copy of a report containing the substance of the
evidence of that expert.
28.09 A party intending to adduce the evidence of two or more experts in relation to the same
issue at a trial in proceedings pursuant to the Children's Protection Act, shall do so only
with leave of the Court.
28.10 An application for leave to call two or more experts in relation to the same issue shall be
made not less than four weeks before the date fixed for trial.
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29.00 DETAILS OF EVIDENCE FOR TRIAL
29.01 Not later than fourteen days prior to the date fixed for trial the applicant shall file in the
Registry and serve upon each of the other parties a list of all witnesses on whose
evidence the applicant seeks to rely and a synopsis of the evidence of each witness
relevant to the issues in question in the proceedings.
29.02 Not later than seven days prior to the date fixed for the trial each of the other parties shall
file in the Registry and serve upon each of the other parties a list of all witnesses upon
whose evidence that party seeks to rely and a synopsis of the evidence of each witness
relevant to the issues in question in the proceedings.
30.00 DISCOVERY AND INSPECTION
30.01 A party to proceedings under the Children's Protection Act may serve on any other party
to the proceedings a Request to make Discovery on oath of the documents and other
evidentiary material that are or have been in the possession custody or control of the
other party relating to all or any of the matters in question in the proceedings.
30.02 A request for discovery shall be in accordance with Form No. 114.
30.03 A party to proceedings on whom the request for discovery has been served shall make
discovery of documents in accordance with Form No. 115 within fourteen days after
service of that request or within such other time as the Court or requesting party allows.
30.04 A party to proceedings or that party's solicitor or counsel shall be entitled to inspect all
documents discovered (which are not privileged from production) during normal
business hours at the address nominated for inspection on giving 3 working day's notice
or at such other time as may be ordered by the Court or agreed between the parties.
30.05 Unless the Court otherwise orders, a party who inspects a document may make a copy of
or take an extract from the document at that party's cost.
30.06 In proceedings under the Children's Protection Act, a party to the proceedings may apply
to the Court for an order directing a person who is not a party to produce for inspection a
document or evidentiary material in the possession, custody or control of that person
relating to any matter in question in the proceedings being a document or evidentiary
material which that person could be required to produce at the hearing.
30.07 An application under this Rule shall be served on each of the other parties to the
proceedings and on the person against whom the order is sought.
30.08 An order made requiring a party to produce a document or other evidentiary material
may require the party who obtains the order to tender reasonable expenses to the person
who is the subject of the order.
31.00 CONFERENCES
31.01 A conference of parties pursuant to Section 42 of the Children's Protection Act may be
adjourned from time to time.
31.02 Unless the Court otherwise directs, each party attending the conference shall produce at
the conference all discoverable documents and evidentiary material in that party's
15
possession, custody or control, or which with reasonable diligence that party could
obtain.
31.03 The judicial officer conducting the Conference may do all or any of the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
attempt to resolve the whole or any part of the proceedings by agreement;
explore all possibilities of a settlement;
express opinions about the merits of any aspect of the case or likely outcome of
the case as thought fit;
make any necessary orders in relation to procedural and pre-trial matters;
fix a date for trial, and;
give any appropriate directions to facilitate the trial of the matter;
settle minutes of order.
31.04 The Conference shall be conducted in one or more sessions but shall consist of a
conciliation Conference which attempts to resolve the matter by agreement and a
directions hearing and trial listing hearing to prepare the matter for trial.
32.00 PROCEDURAL ORDERS
32.01 Where a party fails to comply with any procedure in accordance with these Rules,
another party may apply to the Court for an order to direct compliance including an
order for costs against the party in default.
32.02 An application for Procedural Order(s) may be made orally at any hearing or Conference
in the matter or in accordance with Form No. 113.
32.03 Any formal application shall be listed not more than 10 days from the date of filing of
the application.
32.04 The applicant shall serve a sealed copy of the application upon the party in default and
such other parties as the applicant shall think fit or the Registrar directs.
33.00 UNDERTAKINGS
33.01 Any undertaking made to the Court by a party or other person must be recorded in
writing in accordance with Form No. 116 and signed by the person giving the
undertaking (or if the person is not available to sign it personally by the person's legal
representative unless the Court otherwise directs).
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34.00 PERSONS NOT PARTY/JOINDER
34.01 Where an applicant seeks an order to be binding on a person not a party, the applicant
shall file in the Registry and serve notice upon that person in accordance with Form No.
112 together with true copies of the application and accompanying documents.
34.02 Upon the making of any order to join a person as a party to proceedings, all other parties
shall within 7 days of the order serve upon the party so joined copies of any documents
filed by that party prior to the order for joinder.
35.00 SERVICE
35.01 An Investigation and/or Assessment Order or a Care and Protection Order shall be
served personally provided that a person who is present in Court when an Investigation
and/or Assessment or Interim Care and Protection Order is made may be served with
such an order by posting the same to the last known address of that person.
35.02 A procedural or directions application or order may be served by posting it to the last
known address of that party or to the address for service on the last document filed by
that party in the proceedings.
35.03 Where service is required by the Acts or the Rules and no specific provision is made in
the Act or the Rules for the method of service, such service is sufficient if served:
(i)
(ii)
(iii)
(iv)
personally;
by pre-paid post to the last known address of the party;
by pre-paid post or personal delivery to the address for service indicated on the
last document filed by the party in the proceedings; or,
upon the legal practitioner representing the party - if that practitioner has
instructions to accept service.
36.00 AMENDMENT
36.01 Any party may at least 14 days before the pre-hearing conference without leave and at
any other time with leave of the Court, amend any application in proceedings under the
Children's Protection Act provided that the party so amending forthwith files in the
Registry and serves upon all other parties a true copy of the document so amended,
clearly marking the amendments made.
36.02 The Court may, at any time upon such conditions as to costs or other conduct of
proceedings as it thinks fit, give to any party leave to amend an application or document
notwithstanding that the effect is to add or substitute a ground, seek a further order, or
join another person as a party.
17
Magistrates Court Rules 1992 incorporated.
Rule 19.01 incorporates Rules 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 (except 21.01, 21.02
and 21.03), 32, 24, 25, 26, 27, 33, 34, 35 43 and 44 of the Magistrates court rules 1992 as they
applied on the 1st January 1994. Those Rules are set out below.
7.00 CRIMINAL JURISDICTION
7.01
In this Section "the Act" means the Summary Procedure Act 1921 unless otherwise
provided.
11.00 CHALLENGE TO CLASSIFICATION OF OFFENCE.
11.01 A challenge pursuant to section 5(8) of the Act must be made and determined before the
matter is given a trial date.
12.00 COMPLAINT
12.01 A complaint reduced to writing shall comply with Form No. 1.
12.02 The complainant (or other duly authorised person) may make and lay a complaint by
stating the matter of complaint to a witness who must be a Registrar, Deputy Registrar or
Justice of the Peace.
12.03 The complaint when reduced to writing must be
(i)
signed by the complainant (or other duly authorised person)
(ii)
signed and dated by the witness.
12.04 A "public authority" or "public officer" (as defined in section 57a of the Act) or a legal
practitioner may make and lay a complaint in writing on signing and dating it without
appearing before a witness.
12.05 Where a complaint is made and laid by a police officer in the execution of his duty the
complaint and proceedings thereon may be entitled "Police v. ..... ".
12.06 There a complaint is made and laid by a "public authority" (as defined in section 57a of
the Act) the complaint and proceedings thereon may be entitled " (Name of public
authority) v.........".
12.07 A complaint must be filed in the Court within seven days of being made unless not
practicable.
12.08 A copy of the complaint shall be given to the defendant on or before the time of the first
Court appearance.
12.09 A complaint for contempt of Court may be made and laid by a judicial officer as
provided for in Rule 12.04.
12.10 A complaint shall comply with Rule 15.02
13.00 PLEA OF GUILTY WITHOUT APPEARANCE - SUMMARY OFFENCE.
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13.01 A complaint and summons under section 57a of the Act shall comply with Form No 3.
13.02 A written notice of intention to plead not guilty under section 57a(7a) must be served
personally or by post on the Registrar at least three clear days before the date of
appearance in the summons and at the address stated therein.
14.00 NOTICE OF PECUNIARY PENALTY
14.01 A notice under section 62b(8) of the Act shall comply with Form No 18.
15.00 NOTICE BY PROSECUTION OR COURT BEFORE IMPOSITION OF
PENALTY
15.01 A notice under section 62c(2) of the Act or whenever the Court requires that the
defendant be notified of the order or penalties the Court could make or impose shall
comply with Form No 15 or Form No 16 as the case may be.
15.02 Where a complainant or informant seeks an order of forfeiture, compensation, additional
penalty, destruction or the like, the complaint or information must so state.
15.03 Rule 15.02 shall come into operation on the 1st day of July 1993.
16.00 PROOF OF PREVIOUS CONVICTIONS
16.01 A notice under section 62d of the Act shall comply with Form No 17.
17.00 APPLICATION TO SET ASIDE
17.01 An application under section 76a of the Act shall comply with Form No 19.
17.02 A copy of the application shall be served on the other party.
17.03 Service and proof thereof shall be effected as for notices.
17.04 Upon the filing of the application the Registrar shall notify the parties of a hearing date
and time.
18.00 RESTRAINT ORDER - APPLICATION TO VARY OR REVOKE
18.01 An application under section 99(10) of the Act shall comply with Form No 32.
18.02 The application shall be filed in the Court and a copy served on the other party.
18.03 Service and proof thereof shall be effected as for notices.
18.04 Upon the application being filed the Court shall notify all parties of the hearing date and
time.
19.00 INFORMATION
19.01 An information shall be reduced to writing and comply with Form No 4.
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19.02 The informant in person may lay an information by stating the matter of information to a
witness who must be a Registrar, Deputy Registrar or Justice of the Peace.
19.03 The information when reduced to writing must be (i)
signed by the informant,
(ii)
signed and dated by the witness.
19.04 A "public authority" or "public officer" (as defined in section 57a of the Act) or a legal
practitioner may lay an information in writing on signing and dating it without appearing
before a witness.
19.05 Where an information is laid by a police officer in the execution of his duty the
information and proceedings thereon may be entitled "Police v................".
19.06 Where an information is laid by a "public authority" (as defined in section 57a of the
Act) the information and proceedings thereon may be entitled " (Name of public
authority) v.............".
19.07 An information must be filed in the Court within seven days of being laid unless not
practicable.
19.08 An information shall state as to each charge whether it is a major indictable, minor
indictable or summary offence.
19.09 A copy of the information shall be given to the defendant on or before the time of the
first Court appearance.
19.10 An information shall comply with Rule 15.02.
20.00 PRELIMINARY EXAMINATION
20.01 The prosecutor shall file and serve the documents specified in section 104(1)(a) within
such period not exceeding six weeks as the Court at the defendant's first appearance
before the Court may specify.
20.02 The defendant must by the court appearance next following two weeks after service of
the section 104(1)(a) documents give notice in writing to the Court and to the
prosecution of the witnesses in relation to whom application to examine orally will be
made and a brief outline of the reason they are required.
20.03 A statement referred to in section 104(3)(a) must be verified as follows :
"This Statement consisting of ...... pages signed by me is true to the best of my
knowledge and belief.
Dated the ...... day of ..................... 199 ....
Signed.................................
Signature witnessed by :
20
"
20.04 The documentary material required to be filed by the prosecution pursuant to sec. 104 of
the Act shall be:
(i)
in triplicate
(ii)
accompanied by a document:
(a)
(b)
containing the names of the witnesses providing each statement;
identifying exhibits and other evidentiary material.
21.00 ELECTION
21.04 Unless an election has been sooner made, the prosecution shall, upon the request of the
defence or direction of the Court, provide the defence with a summary of the evidence in
support of each charge.
21.05 A request for a summary of evidence must be made not later than three weeks after the
first appearance of the defendant before the Court.
21.06 A summary of evidence shall be provided within three weeks of the request being made
or a direction given.
21.07 An election must be made within 14 days of the delivery of the summary of evidence, or
where no summary has been requested or directed, not later than 6 weeks after the
defendant's first appearance before the Court.
21.08 Notwithstanding any other provisions of this rule, an election may not be made after a
matter has been set for trial.
21.09 When a defendant makes an election the provisions of Rule 20 apply mutatis mutandis
as if the election had been made at the first appearance of the defendant before the Court.
21.10 The Registrar shall notify the prosecutor of the filing of an election.
21.11 If an election is made it must be made with respect to all the charges in the information
unless the Court orders otherwise.
21.12 Except for sub-rule 21.11 this Rule does not apply to an election made pursuant to
section 107(3)(b)(ii) of the Act.
22.00 WRITTEN PLEA OF GUILTY WHERE INFORMATION LAID.
22.01 A written plea pursuant to section 105(1)(a) of the Act shall comply with Form No 9.
22.02 A written plea can only be made if it is a plea of guilty to all charges.
22.03 The defendant shall be provided with the form at the time the defendant is provided with
a copy of the information.
21
22.04 The form shall be signed by the defendant in the presence of a solicitor who shall certify
that the defendant has had legal advice before signing the form.
22.05 If the information does not include a major indictable offence the written plea must be
accompanied by a duly completed form of election.
22.06 Upon due completion of the form pleading guilty to all charges the defendant shall return
it by delivering it or posting it to the Court at the place indicated in the form so that it
reaches the court :
(a)
if the defendant does not wish to attend the date fixed for attendance - at least
two clear days before that date.
(b)
Subject to (a) at any time before completion of the preliminary examination.
22.07 A defendant who does not appear after duly pleading guilty in writing shall be informed
of the outcome by the Registrar by service on the defendant or the defendant's
representative of a notice which shall comply with Form No 20.
22.08 Service of the notice may be by post.
22.09 A copy of the notice endorsed with the manner of service shall accompany the
documents to be forwarded to the Director of Public Prosecutions.
22.10 The Registrar shall inform the prosecutor of the receipt of a written plea of guilty.
23.00 ALIBI STATEMENT.
23.01 The written statement referred to in section 107(5) of the Act shall comply with Form
No 21.
22
24.00 PROCEDURAL PROVISIONS - C.L.C.A.
24.01 The following provisions of the Criminal Law Consolidation Act 1934 apply (with
necessary adaptations and modifications) to the trial or sentencing of a person charged
with a minor indictable offence :
Section 181, section 195(2) & 3, section 196(4), section 198(2), so much of rule
6 of Schedule 3 as relates to the naming of the owner of property, and rule 10 of
Schedule 3.
25.00 ORDER OF COMMITTAL
25.01 An order of committal for trial or sentence shall comply with Form No 10.
26.00 PRE-TRIAL PREPARATION
26.01 Prior to any matter being listed for summary trial the parties must have ascertained the
precise matters in issue both as to fact (in detail) and law so as to :
(a)
fully explore the possibility of disposing of the charge other than by way of trial;
(b)
enable the duration of the hearing to be estimated as accurately as possible,
(c)
determine what evidence if any may be proved by affidavit;
(d)
facilitate the course of the trial,
and shall inform the Court as to each of the above.
26.02 To the extent necessary to comply with this Rule the parties must confer fully and
frankly.
26.03 Prior to a matter being set down for hearing the defence must give notice to the
prosecution if evidence of alibi may be called. The notice must give details of the
proposed evidence including the name and address of the witnesses.
26.04 Insufficient compliance with this Rule must be taken into account on the question of
costs.
26.05 To ensure compliance with Rule 8 and this Rule the Court may on notice to the parties
require that they attend a pre-trial conference.
26.06 A pre-trial conference may be presided over by such person as the Court may nominate.
27.00 SUMMONS TO DEFENDANT
27.01 Unless otherwise provided a summons to a defendant shall comply with Form No.2,
Form No.3, Form No.5 or Form No.5A as the case may be.
33.00 PROCEEDINGS BROUGHT FORWARD
33.01 Notwithstanding that proceedings are listed for a future date and time the Court may of
its own motion or on the application of a party bring the proceedings forward.
23
34.00 SUBSTANTIATION ON OATH
34.01 Where it is necessary for a complaint or information to be substantiated on oath before a
warrant to arrest can issue it is not necessary that the substantiation be by the informant
or complainant.
35.00 AFFIDAVIT EVIDENCE
35.01 In any proceedings before the Court unless the Court directs otherwise any matter may
be proved by affidavit without the necessity of calling oral evidence unless the other
party objects.
35.02 The party intending to rely on the affidavit must serve the other party with a copy thereof
at least 21 days before the hearing together with a copy of this Rule.
35.03 The party upon whom the affidavit is served may object by notice in writing (giving
detailed reasons therefor) to the party intending to rely on it at least 10 days before the
hearing.
35.04 Service of the affidavit or notice may be effected by post either on the party or the party's
legal representative.
35.05 The manner of service must be endorsed on a copy of the affidavit or notice.
35.06 The Court may order costs against a party unreasonably objecting to the use of an
affidavit.
35.07 The Court may if it is not satisfied that a genuine dispute exists between the parties or
that compliance with the rules of evidence might involve unreasonable expense or delay
direct that certain evidence be given by way of affidavit.
43.00 Summary Protection Orders by Telephone.
43.01 The document referred to in section 99(4b)(c)of the Act shall comply with Form 34A.
43.02 The copy of the completed document returned or sent to the court pursuant to section
99(4b)(c)(ii) shall be accompanied by the complaint reduced to writing.
44.00 Firearms Orders.
44.01 Orders made under section 99a of the Act for service on the defendant shall comply with
Form 34B.
Youth Court Rules