crimes (criminal trials) act 1993

Crimes (Criminal Trials) Act 1993 No. 60 of 1993

TABLE OF PROVISIONS

Section

PART 1—PRELIMINARY

1. Purpose 2. Commencement 3. Definitions

PART 2—PRE-TRIAL PROCEDURES

4. Statement of defence after early filing of presentment

PART 3—DIRECTIONS HEARINGS

5. Court may determine certain matters 6. Judge constituting court 7. Directions hearing forms part of trial 8. Prosecution case statement 9. Requirements relating to witness statements

10. Exhibits 11. Defence response 12. Attendance at preliminary hearing

PART 4—TRIAL

13. Defence reply to prosecutor's opening 14. Judge's address to the jury 15. Evidence at trial 16. Jury documents 17. Retrial

PART 5—GENERAL

18. Power to extend time 19. Costs 20. Related trials 21. Service of documents by prosecutor 22. Relationship with other legislation

PART 6—RESTRICTIONS ON REPORTS OF PROCEEDINGS

23. Amendment of Judicial Proceedings Reports Act 1958

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PART 7—AMENDMENT OF CERTAIN ACTS 24. New Part II, Division 4 inserted in Evidence Act 1958

Division 4—Manner of Giving Evidence 42A. Form of evidence 42B. Manner of giving voluminous or complex evidence

25. New section 149AB inserted in Evidence Act 1958 149AB. Agreed facts

26. Amendment of Sentencing Act 1991 27. Insertion of new section 360A in Crimes Act 1958

360A. Adjournment or stay of trial 28. Question of law reserved before jury empanelled

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Victoria

No. 60 of 1993

Crimes (Criminal Trials) Act 1993

[Assented to 8 June 1993]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to facilitate the efficient conduct of criminal trials.

2. Commencement

(1) Part 1 comes into operation on the day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

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(3) If a provision referred to in sub-section (2) does not come into operation on or before 1 September 1993, it comes into operation on that date.

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;

"defence response" means a statement referred to in section 11;

"prosecution case statement" means a statement referred to in section 8;

"prosecutor" means the Director of Public Prosecutions for Victoria or the Director of Public Prosecutions for the Commonwealth.

PART 2—PRE-TRIAL PROCEDURES

4. Statement of defence after early filing of presentment

If—

(a) a person is committed for trial or is given a notice of trial or of intention to prefer a presentment; and

(b) at least 28 days before the date on which the trial is due to commence a presentment is filed and a copy served on the accused—

the accused must, within 21 days after the filing and service of the presentment, file in court and serve on the prosecutor a notice disclosing—

(c) elements of the offence charged that are admitted; and

(d) elements of the offence charged that are not admitted.

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PART 3—DIRECTIONS HEARINGS

5. Court may determine certain matters

(1) If a presentment has been filed, the court from time to time on the application of a party or on its own motion may do any one or more of the following— (a) determine any question of law or procedure that

arises, or that is anticipated to arise, in the trial; (b) determine any question of fact that may be

determined lawfully by a judge alone without a jury;

(c) give any direction for the conduct of the proceeding which it thinks conducive to its prompt and economical determination including directions relating to—

(i) the form or manner of giving evidence; (ii) the determination of questions of law,

including questions about the admissibility of evidence;

(iii) the amendment of documents filed in the proceeding;

(iv) the making of admissions;

(v) the preparation, service and filing of explanatory material;

(d) set a time for the service on the accused and the filing in court of a prosecution case statement;

(e) order the prosecutor to include in the prosecution case statement any material that the court considers desirable;

(/) set a time for the service on the prosecution and the filing in court of a defence response;

(g) order the prosecutor to give further or better particulars of any matter in the prosecution case statement;

(h) allow the prosecutor to serve on the accused and file in court a copy of any further evidence that he or she wishes to introduce at the trial;

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(i) allow the prosecutor to amend the prosecution case statement and order the prosecutor to serve on the accused, and file in court, a copy of the amended statement;

(j) allow the accused to withdraw any admission made before service of the amended prosecution case statement that is affected by the amendment;

(k) order the accused to prepare and serve on the prosecutor and file in court a notice stating any objection that the accused has to the admission of any evidence and the ground of objection;

(/) allow the accused to amend the defence response and order the accused to serve on the prosecutor, and file in court, a copy of the amended defence response;

(m) order the prosecutor to prepare and serve on the accused and file in court a notice of—

(i) those documents the truth of the contents of which, in the prosecutor's opinion, ought to be admitted;

(ii) those documents which, in the prosecutor's opinion, ought to be admitted as evidence without further proof;

(iii) any other matters which, in the prosecutor's opinion, ought to be agreed—

and order the accused to prepare and serve on the prosecutor and file in court a notice in reply giving reasons for any refusal to comply with any opinion of the prosecutor as stated in his or her notice;

(n) order the accused to give further or better reasons for any refusal referred to in paragraph (m).

(2) Arraignment of the accused in accordance with the Crimes Act 1958 must take place at the beginning of the first hearing under this section.

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6. Judge constituting court

(1) The judge constituting the court when the trial of the person committed or presented for trial takes place before a jury must be the judge who constituted the court when it dealt with any matter under section 5.

(2) Sub-section (1) does not apply if it is impracticable or contrary to the interests of justice for the court to be constituted by the same judge as mentioned in that sub-section.

7. Directions hearing forms part of trial

Despite the fact that the court may be constituted by different judges for the purpose of different proceedings, if a matter is dealt with in accordance with section 5 before the trial of the person committed or presented for trial has begun, the proceeding in which the matter was so dealt with is to be taken as being part of the trial.

8. Prosecution case statement

(1) The prosecutor must, within the time set at a hearing under section 5, prepare and serve on the accused and file in court a prosecution case statement.

(2) A prosecution case statement cannot be filed before presentment is made.

(3) A prosecution case statement must— (a) be accompanied by a copy of the presentment; (b) contain—

(i) a concise account of the facts and inferences sought to be drawn from those facts; and

(ii) any other material the court considers desirable—

on which the prosecution case is based;

(c) be accompanied by copies of the statements of the witnesses whom the prosecutor intends to call at the trial;

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(d) be accompanied by a list of exhibits, and copies of any documentary exhibits (or a description of them and of where they may be inspected and copied if, in the prosecutor's opinion, providing copies would be onerous owing to their size), that the prosecutor intends to have produced at the trial;

(e) contain a statement of any proposition of law on which the prosecutor proposes to rely other than any general proposition of law relevant to all cases;

(/) be accompanied by copies of the statements of any expert witnesses whom the prosecution intends to call at the trial;

(g) be accompanied by any other document directed to be included by the court at a hearing under section 5.

(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.

9. Requirements relating to witness statements

(1) A witness statement included with the prosecution case statement must—

(a) be in the form of an affidavit; or (b) be signed by the witness and contain an

acknowledgment signed in the presence of— (i) a member of the police force of Victoria or of

any other State or of the Northern Territory of Australia; or

(ii) a member of the Australian Federal Police—

that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.

(2) The statement must include the age of the witness if he or she is under the age of 18.

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(3) If the witness cannot read—

(a) the statement must be read to the witness before he or she signs it; and

(b) the acknowledgment must state that the statement was read to the witness before he or she signed it.

(4) A failure to comply with this section does not make ineffective the service or filing of the prosecution case statement if the court is satisfied that the accused is not substantially prejudiced by the failure.

(5) A person who acknowledges a statement which he or she knows to be false is liable to the penalties of perjury.

(6) If a witness refuses to make or sign a witness statement, the prosecutor (if he or she wants to call the witness) must include with the prosecution case statement a statement of the evidence that the prosecutor believes the witness will give.

10. Exhibits

(1) The accused must be given a reasonable opportunity to inspect the exhibits referred to in the prosecution case statement.

(2) A failure to comply with this section does not make ineffective the service or filing of the prosecution case statement if the court is satisfied that the accused is not substantially prejudiced by the failure.

11. Defence response

(1) The accused must, within the time set at a hearing under section 5, prepare and serve on the prosecution and file in court a defence response.

(2) A defence response must—

(a) indicate the facts and inferences contained in the prosecution case statement with which issue is taken;

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(b) be accompanied by copies of the statements of any expert witnesses whom the defence intends to call at the trial;

(c) reply to any proposition of law stated in the prosecution case statement;

(d) contain a statement of any proposition of law on which the defence proposes to rely other than any general proposition of law relevant to all cases.

(3) The accused is not required to disclose in the defence response—

(a) the identity of any defence witness other than an expert witness; or

(b) whether the accused will give evidence; or

(c) a notice of alibi under section 399A of the Crimes Act 1958.

12. Attendance at preliminary hearing

Except with leave of the court, the accused is required to be present at a hearing under section 5.

PART 4—TRIAL

13. Defence reply to prosecutor's opening

(1) In a proceeding for an offence in relation to which a hearing under section 5 has been conducted, counsel for the accused has the right to reply to the opening speech of the prosecutor.

(2) The purpose of the reply is—

(a) to indicate briefly the facts, and inferences sought to be drawn from those facts, with which issue is not taken;

(b) to outline the issues in the trial.

(3) If counsel for the accused chooses to exercise this right of reply, he or she must do so immediately after the prosecutor's opening speech.

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(4) The presiding judge may limit the length of the prosecutor's opening speech or the reply of counsel for the accused.

14. Judge's address to the jury

Immediately after the reply of counsel for the accused or the prosecutor's opening speech, if counsel for the accused chooses not to exercise the right of reply, the presiding judge must address the jury on—

(a) the issues in the trial; and

(b) the relevance to the conduct of the trial of any admissions made, directions given or rnatters determined in any hearing under section 5 or notice under section 4.

15. Evidence at trial

(1) The accused or, with the leave of the court, the prosecutor may introduce evidence at the trial before the jury which was not disclosed prior to that trial in accordance with this Act and which represents a departure from the case disclosed by that party prior to that trial.

(2) The presiding judge or, with the leave of the court, a party may make any comment on that departure that the judge or that party (as the case requires) thinks appropriate.

(3) The court may only grant leave to a party to comment on a departure if satisfied that—

(a) the proposed comment is relevant; and

(b) the proposed comment is not likely to produce a miscarriage of justice.

(4) The court 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 prosecutor having regard to the defence response served.

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(5) Nothing in this section limits any other power of the court to allow the prosecutor to call evidence after he or she has closed his or her case.

16. Jury documents

For the purpose of helping the jury to understand the issues, the court may order that copies of any of the following shall be given to the jury in any form that the presiding judge considers appropriate—

(a) the prosecution case statement and, with the consent of the accused, the defence response;

(b) any document admitted as evidence;

(c) any statement of facts;

(d) the opening and closing speeches of counsel;

(e) the presiding judge's address to the jury under section 14;

(/) any schedules, chronologies, charts, diagrams, summaries or other explanatory material;

(g) transcripts of evidence;

(h) the presiding judge's summing up;

(J) any other document that the presiding judge thinks fit.

17. Retrial

If a retrial is held, the court may treat any order made, direction given or other thing done at a hearing under section 5 in the earlier trial as if it had been made, given or done at a hearing under section 5 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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PART 5—GENERAL

18. Power to extend time

(1) On application the court may extend any time fixed by or under this Act or by any order extending 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 the application is made before the time expires.

19. Costs

(1) Without limiting any other power of the court to award costs, the court may at any stage in a proceeding to which section 4 or 5 applies order—

(a) a party, whether the Crown or the accused; or

(b) a party's counsel or solicitor or, in the case of an employee solicitor, his or her employer—

personally to pay costs to another party within a specified time if the court is satisfied that there has been an unreasonable failure by that party or that party's counsel or solicitor, or a servant or agent of that party's solicitor, to comply with this Act or any order made under this Act.

(2) The court must not make an order under sub-section (1) without giving the party or the legal practitioner (as the case requires) a reasonable opportunity to be heard.

20. Related trials

The 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 on any question about the admissibility of

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evidence or other question of law that, in his or her opinion, is likely to be contentious in the later trial.

21. Service of documents by prosecutor

If by or under this Act at any time after the service of a prosecution case statement the prosecutor is required or permitted to serve a document on the accused, the document must be taken to have been duly served on the accused if it is sent by registered post addressed to the solicitor for the accused at that solicitor's business address.

22. 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 the Criminal Appeals and Procedures Rules 1988; or

(c) Order 11 of the County Court Miscellaneous Rules 1989.

PART &—RESTRICTIONS ON REPORTS OF PROCEEDINGS

23. Amendment of Judicial Proceedings Reports Act 1958

(1) In section 3 (1) of the Judicial Proceedings Reports Act 1958, for paragraph (c) substitute—

"(c) except as provided in this section in relation to a hearing under section 5 of the Crimes (Criminal Trials) Act 1993, any matters other than—

(i) the identity of the court and name of the judge constituting it;

(ii) the names, ages, home addresses and occupations of the accused and witnesses;

(iii) any relevant business information;

(iv) the offence or offences, or a summary of it or them;

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(v) the names of counsel and solicitors engaged in the proceeding;

(vi) if the proceeding is adjourned, the date and place to which it is adjourned and bail arrangements on the adjournment.".

(2) After section 3 (1) of the Judicial Proceedings Reports Act 1958 insert—

"(1A) The following is relevant business information for the purposes of sub-section (1) (c) (iii):

(a) any address used by the accused for carrying on a business on the accused's own account;

(b) the name of any business which the accused was carrying on, on the accused's own account, at the time when events giving rise to the charge or charges occurred;

(c) the name and address of any firm in which the accused was a partner at that time or by which at that time the accused was engaged under a contract of service or a contract for services;

(d) the name and address of the registered or principal office of any company of which the accused was a director at that time or by which at that time the accused was engaged under a contract of service or a contract for services;

(e) any working address of the accused in his or her capacity as a person engaged by a company referred to in paragraph (d).

(1B) At a hearing under section 5 of the Crimes (Criminal Trials) Act 1993, the court may, on the application of the accused or, if there are more than one, any one of the accused, order that sub-section (l) (c) shall not apply to reports of that hearing.

(Ic) If an accused is not represented by counsel at a hearing referred to in sub-section (1B), the court must explain to the accused the restrictions imposed by sub-section

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(1) (c) and inform the accused about the court's power under sub-section (1B).

( ID) If a hearing at which an order has been made under sub-section (1B) is adjourned, the court must, on resuming the hearing, announce that the order has been made.

(1E) It is not unlawful under this section to print or publish or cause or procure to be printed or published any matter relating to a hearing referred to in sub-section (1) (c) after the conclusion of the trial of the person charged or of the last of the persons charged to be tried.".

PART 7—AMENDMENT OF CERTAIN ACTS

24. New Part II, Division 4 inserted in Evidence Act 1958

After Division 3 of Part II of the Evidence Act 1958 insert—

"Division 4—Manner of Giving Evidence

4 2 A. Form of evidence

(1) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

(2) Nothing in this section affects the operation of section 42B.

42B. Manner of giving voluminous or complex evidence

(1) If the court is satisfied that particular evidence that is to be given in a proceeding by a party is so voluminous

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or complex that it would not be possible conveniently to assess the evidence if it were given in narrative form, the court may direct the party to give the evidence in a form, specified in the direction, that would aid its assessment by the court.

(2) The direction may also require the party to provide to the other parties copies of the evidence in the form in which the court has directed that it be given.

(3) A direction that includes such a requirement must specify a time within which the copies must be so provided.".

25. New section 149AB inserted in Evidence Act 1958

After section 149A of the Evidence Act 1958 insert—

'149AB. Agreed facts

(1) In this section, "agreed fact" means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding—

(a) evidence is not required to prove the existence of an agreed fact; and

(b) evidence may not be adduced to contradict or qualify an agreed fact—

unless the court gives leave.

(3) Sub-section (2) does not apply unless the agreed fact—

(a) is stated in an agreement in writing signed by the parties or by legal practitioners representing the parties and adduced in evidence in the proceeding; or

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(b) with the leave of the court, is stated by a party before the court with the agreement of all the other parties.'.

26. Amendment of Sentencing Act 1991

After section 5 (2B) of the Sentencing Act 1991 insert—

"(2c) In sentencing an offender a court may have regard to the conduct of the offender on the trial as an indication of lack of remorse on his or her part.

(2D) In having regard to the conduct of the offender under sub-section (2c), the court may consider (among other things)—

(a) the offender's refusal to admit under section 4 of the Crimes (Criminal Trials) Act 1993 an element of the offence charged and his or her subsequent failure seriously to contest the prosecution's proof of that element;

(b) the offender's refusal to comply with any opinion of the prosecutor as stated in the prosecutor's notice served under section 5 (1) (/n) of the Crimes (Criminal Trials) Act 1993 and his or her subsequent failure seriously to contest the prosecution's proof of the matters to which that opinion related;

(c) the stage in the proceedings at which the offender refused to admit or comply as mentioned in paragraph (a) or (b).

(2E) An offender who pleads guilty to an offence after the determination by the Full Court of a question of law reserved under section 446 (2) of the Crimes Act 1958 is to be taken to have pleaded guilty immediately after arraignment.".

27. Insertion of new section 360A in Crimes Act 1958

In Subdivision (5) of Division 1 of Part III of the Crimes Act 1958, after section 360 insert—

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"360A. Adjournment or stay of trial

(1) Subject to sub-section (2) and despite any rule of law to the contrary, if—

(a) a person is committed for trial; or

(b) a presentment has been filed—

the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.

(2) If a court is satisfied at any time before or during the trial that—

(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and

(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial—

the court may order the Legal Aid Commission of Victoria to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided.

(3) Despite anything in the Legal Aid Commission Act 1978, the Legal Aid Commission of Victoria must provide legal representation in accordance with an order under sub-section (2).".

28. Question of law reserved before jury empanelled

(1) In section 446 of the Crimes Act 1958, before " I f insert "(1)".

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(2) At the end of section 446 of the Crimes Act 1958 insert— "(2) If on the trial of an accused person in the Supreme

Court or the County Court, a question of difficulty in point of law arises before a jury is empanelled, the court may, on application by the accused, determine that the question of law is such that its determination could render the conduct of the trial unnecessary and reserve the question of law for the consideration and determination of the Full Court.

(3) If a court reserves a question of law under sub-section (2), the court must adjourn the trial until the question of law has been considered and determined by the Full Court and may commit the accused to prison or admit him or her to bail to appear before the court at the time and place that the court directs.".

(3) In section 447 (1) of the Crimes Act 1958, after "thereupon" (where secondly occurring) insert", in the case of a question of law reserved under section 446 (2), to remit the question and the determination of the Full Court back to the court which reserved the question or, in any other case,".

NOTES

1. Minister's second reading speech—

Legislative Assembly: 29 April 1993

Legislative Council: 19 May 1993

2. The long title for the Bill for this Act was "A Bill to provide for the efficient conduct of criminal trials, to amend the Crimes Act 1958, the Evidence Act 1958, the Judicial Proceedings Reports Act 1958 and the Sentencing Act 1991 and for other purposes.".

3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.)

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