Criminal Procedure Amendment Act 2012 - Victorian ...FILE/12-048a.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01 SectionPage Criminal Procedure Amendment Act 2012

Criminal Procedure Amendment Act 2012 No. 48 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 23 Principal Act 3

PART 2—CRIMINAL PROCEDURE ACT 2009 4

Division 1—Appeal by offender against sentence 4

4 Definitions 45 Section 280 substituted 4

280 Determination of application for leave to appeal under section 278 4

6 Section 284A substituted 5284A Determination of application for leave to appeal under

section 283 57 Powers which may be exercised by a single Judge of Appeal 68 Sentence in absence of offender 79 Consequential amendments 8

Division 2—Miscellaneous amendments 8

10 How a criminal proceeding is commenced 811 Preliminary brief to be served if charge-sheet filed 812 Summary case conference 813 Powers of court at directions hearing 814 Comment on departure or failure 915 When finding of guilt occurs 916 Late notice of appeal deemed to be application for leave to

appeal 1017 Note to section 271 substituted 1118 New section 302A inserted 11

302A Reservation of question of law on appeal to County Court 11

19 Adjournment if question of law reserved 1220 Consequential amendments 12

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21 Application of Division 5 of Part 8.2 1222 Admissibility of recorded evidence-in-chief 1323 New section 368A inserted 14

368A Court may order production of recording made under this Division in certain circumstances 14

24 Section 370 amended 1425 Time limits for special hearing 1626 New section 371A inserted 16

371A Timing arrangements for special hearing during trial 1627 Conduct of special hearing 1728 Consequential amendments 1729 New section 375A inserted 17

375A Jury warning as to special hearing held during trial 1730 Persons who may witness statements in preliminary brief, full

brief or hand-up brief 1831 Statute law revision 19

Division 3—Transitional provisions for amendments by Divisions 1 and 2 19

32 New section 442 inserted 19442 Transitional provisions—Criminal Procedure

Amendment Act 2012 19

PART 3—CHILDREN, YOUTH AND FAMILIES ACT 2005 21

33 Late notice of appeal deemed to be application for leave to appeal 21

34 Heading to Division 6 of Part 5.4 of Chapter 5 amended 2235 New Division 6A inserted into Part 5.4 of Chapter 5 22

Division 6A—Case stated for Court of Appeal 22

430VA Reservation of question of law 22430VB Adjournment if question of law reserved 23430VC Refusal to reserve question of law 23430VD Case to be stated if question of law reserved 24430VE General powers of Court of Appeal on case stated 24430VF Judgment to be entered on record 24

36 New section 430WA inserted 25430WA Powers and procedure 25

37 New section 622 inserted 25622 Transitional provision—Criminal Procedure

Amendment Act 2012 25

PART 4—AMENDMENT OF OTHER ACTS 26

Division 1—Magistrates' Court Act 1989 26

38 Authority conferred by search warrant 2639 Warrants 2640 New clause 49 inserted into Schedule 8 26

49 Transitional provision—Criminal Procedure Amendment Act 2012 26

Division 2—Drugs, Poisons and Controlled Substances Act 1981 27

41 Warrant to search premises 2742 New section 143 inserted 27

143 Transitional provision—Criminal Procedure Amendment Act 2012 27

Division 3—Sentencing Act 1991 28

43 Sentence discount for guilty plea 2844 Aggregate sentence of imprisonment 2845 Aggregate fines 2946 New section 145 inserted 29

145 Transitional provisions—Criminal Procedure Amendment Act 2012 29

Division 4—Crimes Act 1958 30

47 Retention of copy of recording 30

PART 5—REPEAL OF AMENDING ACT 31

48 Repeal of amending Act 31═══════════════

ENDNOTES 32

Criminal Procedure Amendment Act 2012†

No. 48 of 2012

[Assented to 4 September 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Criminal Procedure Act 2009—

(i) to further provide for leave to appeal against sentence;

(ii) to expand the use of recorded evidence-in-chief;

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(iii) to allow special hearings to be held during criminal trials;

(iv) to clarify the circumstances in which a judge may comment on a departure from the disclosed evidence or a failure of an accused to adduce particular evidence in the course of a trial;

(v) to rationalise, and add to, the list of persons and classes of persons authorised to witness statements for use in full briefs, preliminary briefs and hand-up briefs;

(b) to amend the Children, Youth and Families Act 2005 in relation to appeals from the County Court or the Trial Division of the Supreme Court to the Court of Appeal if a question of law is reserved;

(c) to amend the Magistrates' Court Act 1989 and the Drugs, Poisons and Controlled Substances Act 1981 to remove the requirement that articles or things seized under a search warrant be brought before the court to be dealt with according to law;

(d) to amend the Sentencing Act 1991—

(i) in relation to the imposition of aggregate sentences by a court;

(ii) in relation to the recording of the reduction of sentences for guilty pleas;

(e) to make a minor amendment to the Crimes Act 1958.

2 Commencement

(1) This Act, except section 10, comes into operation on the day after the day on which it receives the Royal Assent.

Section Page

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s. 2

(2) Subject to subsection (3), section 10 comes into operation on a day to be proclaimed.

(3) If section 10 does not come into operation before 1 November 2012, it comes into operation on that day.

3 Principal Acts. 3

See:Act No.7/2009.Reprint No. 2as at18 March 2012and amendingAct Nos 65/2010, 20/2012 and 26/2012.LawToday:www.legislation.vic.gov.au

In this Act, the Criminal Procedure Act 2009 is called the Principal Act.

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PART 2—CRIMINAL PROCEDURE ACT 2009

Division 1—Appeal by offender against sentence

4 Definitions

In section 3 of the Principal Act insert the following definition—

"total effective sentence means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion;".

5 Section 280 substituted

For section 280 of the Principal Act substitute—

"280 Determination of application for leave to appeal under section 278

(1) The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—

(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or

(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.Note

Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).

s. 4Part 5—Repeal of Amending Act

Criminal Procedure Amendment Act 2012No. 48 of 2012

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(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.

(3) On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—

(a) amend the sentence first imposed by substituting a less severe sentence; and

(b) make any other order that the Court of Appeal considers ought to be made.

Note

If an application for leave to appeal is heard and refused by a single Judge of Appeal under section 315(1), section 315(2) entitles the applicant to have the application determined by the Court of Appeal.".

6 Section 284A substituted

For section 284A of the Principal Act substitute—

"284A Determination of application for leave to appeal under section 283

(1) The Court of Appeal may refuse an application for leave to appeal under section 283 in relation to any ground of appeal if—

(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the County Court; or

(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence imposed by the County Court.



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Note

Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).

(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.

(3) On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—

(a) amend the sentence imposed by the County Court by substituting a less severe sentence; and

(b) make any other order that the Court of Appeal considers ought to be made.

Note

If an application for leave to appeal is heard and refused by a single Judge of Appeal under section 315(1), section 315(2) entitles the applicant to have the application determined by the Court of Appeal.".

7 Powers which may be exercised by a single Judge of Appeal

(1) In the heading to section 315 of the Principal Act, after "by" insert "Court of Appeal constituted by".

(2) In section 315(1) of the Principal Act, for "The following powers of the Court of Appeal under this Part may be exercised by a single Judge of Appeal in the same manner as they may be exercised by the Court of Appeal" substitute "The Court of Appeal constituted by a single Judge of Appeal may exercise the following powers".



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(3) In section 315(2) of the Principal Act—

(a) for "a Judge of Appeal" substitute "the Court of Appeal constituted by a single Judge of Appeal";

(b) after "Court of Appeal" insert "constituted by 2 or more Judges of Appeal".

(4) After section 315(2) of the Principal Act insert—

"(3) An order under section 280(3) or 284A(3) made by the Court of Appeal constituted by a single Judge of Appeal is stayed on the filing of an application to have the application for leave to appeal determined by the Court of Appeal constituted by 2 or more Judges of Appeal.

(4) An order stayed under subsection (3)—

(a) takes effect on the refusal of the application for leave to appeal by the Court of Appeal constituted by 2 or more Judges of Appeal;

(b) is of no effect if the application for leave to appeal is granted by the Court of Appeal constituted by 2 or more Judges of Appeal.".

8 Sentence in absence of offender

At the end of section 322 of the Principal Act insert—

"(2) For the purposes of this section, the making of an order under section 280(3) or 284A(3) is an imposition of a sentence.".



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9 Consequential amendments

(1) In section 327I(2) of the Principal Act, for "a single Judge of Appeal in the same manner as it may be exercised by the Court of Appeal" substitute "the Court of Appeal constituted by a single Judge of Appeal".

(2) In section 327I(3) of the Principal Act—

(a) for "a Judge of Appeal" substitute "the Court of Appeal constituted by a single Judge of Appeal";

(b) after "Court of Appeal" insert "constituted by 2 or more Judges of Appeal".

Division 2—Miscellaneous amendments

10 How a criminal proceeding is commenced

At the foot of section 5 of the Principal Act insert—"Note

A proceeding may also be commenced under section 83AL of the Sentencing Act 1991.".

11 Preliminary brief to be served if charge-sheet filed

In section 24(a) of the Principal Act, for "7 days" substitute "21 days".

12 Summary case conference

In section 54(2) of the Principal Act for "7 days" substitute "21 days".

13 Powers of court at directions hearing

For section 181(2)(d) of the Principal Act substitute—

"(d) in the case of a trial for a sexual offence in which the complainant was a child or a



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person with a cognitive impairment when the criminal proceeding was commenced—

(i) require the prosecutor to advise as to the availability of the complainant, and the accused to advise as to his or her own availability for the special hearing to be held under Division 6 of Part 8.2; and

(ii) give a direction under section 370(1A) that the special hearing is to be held before the trial or during the trial; and

(iii) if the special hearing is to be held during the trial, specify the date on which the special hearing is to commence;".

14 Comment on departure or failure

(1) In section 237 of the Principal Act—

(a) in subsection (1), for "subsections (2) and (3)" substitute "subsection (2)";

(b) for subsection (2)(b) substitute—

"(b) the proposed comment is permitted by another Act or a rule of law; andNote

See section 20 of the Evidence Act 2008.

(c) the proposed comment is not unfairly prejudicial to the party about whom the comment is made.".

(2) Section 237(3) of the Principal Act is repealed.

15 When finding of guilt occurs

In section 253B of the Principal Act omit "trial".



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16 Late notice of appeal deemed to be application for leave to appeal

After section 263(2) of the Principal Act insert—

"(3) If the County Court does not grant leave to appeal under subsection (2), the County Court must strike out the appeal.

(4) If—

(a) the County Court strikes out an appeal under subsection (3); and

(b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court—

the registrar of the County Court may issue, in accordance with the Magistrates' Court Act 1989, a warrant to imprison the appellant and may recall and cancel that warrant.

(5) If an appeal is struck out under subsection (3)—

(a) the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

(b) the registrar of the County Court must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

(c) the making of an order striking out an appeal discharges the undertaking of



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the appellant to proceed with the appeal.".

17 Note to section 271 substituted

For the Note at the foot of section 271 of the Principal Act substitute—"Notes

1 Section 283 gives a further right of appeal from the County Court to the Court of Appeal in certain circumstances.

2 Section 302A provides for the reservation of a question of law for determination by the Court of Appeal during the hearing of an appeal by the County Court.".

18 New section 302A inserted

After section 302 of the Principal Act insert—

"302A Reservation of question of law on appeal to County Court

If on the hearing of an appeal under Part 6.1 to the County Court from the Magistrates' Court a question of law arises, the County Court may reserve the question for determination by the Court of Appeal if the County Court is satisfied that it is in the interests of justice to do so, having regard to—

(a) the extent of any disruption or delay to the hearing that may arise if the question of law is reserved; and

(b) whether the determination of the question of law may—

(i) render the hearing unnecessary; or

(ii) substantially reduce the time required for the hearing; or



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(iii) resolve a novel question of law that is necessary for the proper conduct of the hearing.".

19 Adjournment if question of law reserved

At the end of section 303 of the Principal Act insert—

"(2) If a court reserves a question of law under section 302A, the court must adjourn the hearing, if reasonably practicable, until the question of law has been determined.".


(1) In section 304(1) of the Principal Act, after "section 302" insert "or 302A".

(2) In sections 305(1) and 306(2) of the Principal Act, after "section 302" insert ", 302A".

(3) In section 308(4) of the Principal Act, after "trial" (where twice occurring) insert "or hearing".

21 Application of Division 5 of Part 8.2

In section 366(1) of the Principal Act—

(a) in paragraph (b), for "person." substitute "person; or";

(b) after paragraph (b) insert—

"(c) an offence against section 68, 69 or 70AC of the Crimes Act 1958; or

(d) any offences against section 23 or 24 of the Summary Offences Act 1966 if those offences are related offences to an offence specified in paragraph (a), (b) or (c), despite whether any such related offences are withdrawn or dismissed before an offence against section 23



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or 24 of the Summary Offences Act 1966 is heard and determined.".

22 Admissibility of recorded evidence-in-chief

(1) In section 368(3) of the Principal Act, after "recording" insert "and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible".


"(4) Subject to this section, a recording referred to in section 367 is admissible in evidence as if its contents were the direct testimony of the witness—

(a) in the proceeding; and

(b) unless the relevant court otherwise orders, in—

(i) any new trial of, or appeal from, the proceeding; or

(ii) another proceeding in the same court for the charge for an offence specified in section 366(1) or a charge for a related offence; or

(iii) a civil proceeding arising from the same facts as those on which the charge for an offence specified in section 366(1) is founded.

(5) The court, by order, may abridge any time fixed—

(a) by or under subsection (1)(a); or

(b) by any order abridging time made under this subsection—



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if the court considers that it is in the interests of justice to do so.".



"368A Court may order production of recording made under this Division in certain circumstances

(1) A court may order that a recording referred to in section 367 be produced for use in a proceeding (other than a proceeding referred to in section 368) before that court if the court is satisfied that it is in the best interests of the witness to do so.

(2) If a court makes an order under subsection (1), it must also specify—

(a) the persons who may view or listen to the recording; and

(b) when and where the recording is required to be produced; and

(c) if necessary, any requirements as to the destruction of the recording.

(3) In making an order under subsection (1), the court must have regard to the need to protect the privacy of the witness.

(4) In this section, court includes a tribunal if the complainant is the applicant in a proceeding before the tribunal.".

24 Section 370 amended

(1) In the heading to section 370 of the Principal Act, for "pre-recording" substitute "recording".



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(2) In section 370(1)(b) of the Principal Act, before "presented" insert "in the case of a special hearing before the trial,".


"(1A) The court must direct that a special hearing under this Division is to be held—

(a) before the trial; or

(b) during the trial.Note

Section 337 enables the court to vary its direction on the application of a party or on its own motion.

(1B) In making a direction under subsection (1A), the court must have regard to—

(a) if the complainant is a child, the age and maturity of the child; and

(b) if the complainant is cognitively impaired, the severity of that impairment; and

(c) any preference expressed by the complainant to give their evidence before the trial or during the trial; and

(d) whether conducting the special hearing during the trial is likely—

(i) to intimidate the complainant when giving his or her evidence; or

(ii) to have an adverse effect on the complainant; and

(e) the need to complete the evidence of the complainant expeditiously; and



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(f) the likelihood that the evidence given by the witness will include inadmissible evidence that may result in the discharge of the jury; and

(g) any other matter that the court considers relevant.".

25 Time limits for special hearing

For section 371(2) of the Principal Act substitute—

"(2) The court may extend the time for holding a special hearing if the court considers that it is in the interests of justice to do so, having regard to—

(a) if the complainant is a child, the age and maturity of the child; and

(b) if the complainant is cognitively impaired, the severity of that impairment; and

(c) the period of time since the complaint was first made; and

(d) the period of time since the offence was allegedly committed; and

(e) any other matter that the court considers relevant.".



"371A Timing arrangements for special hearing during trial

If the court directs that a special hearing be held during the trial, the court must—

(a) as far as possible, commence the special hearing on the date specified under section 181(2)(d)(iii); and



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(b) ensure that the complainant's evidence is disrupted to the least extent possible.Example

An application to discharge the jury may be heard and determined after the special hearing is completed.

Note

Section 212 sets out time limits for commencing trials for sexual offences.".

27 Conduct of special hearing

After section 372(1)(b) of the Principal Act insert—

"(ba) in the case of a special hearing held during the trial, the jury is to be present in the courtroom;".


In sections 373(1) and 374(1) of the Principal Act, for "referred to in section 370(1)" substitute "of a special hearing".



"375A Jury warning as to special hearing held during trial

If a special hearing is held during a trial, the trial judge must warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the arrangements put in place under section 372 for the special hearing.".



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30 Persons who may witness statements in preliminary brief, full brief or hand-up brief

(1) Items 20, 24 and 28 of Schedule 3 to the Principal Act are repealed.

(2) In item 30 of Schedule 3 to the Principal Act omit "other".

(3) After item 30 of Schedule 3 to the Principal Act insert—

"31 A person before whom an affidavit may be sworn and taken under section 123C(1)(gb) of the Evidence (Miscellaneous Provisions) Act 1958.

32 An inspector of municipal administration appointed under section 223A of the Local Government Act 1989.

33 An authorised officer appointed by a municipal council under section 224 of the Local Government Act 1989.

34 An officer at Australian Public Service level 5 or higher who is a member of the Investigations and Intelligence Branch of the Department of Climate Change and Energy Efficiency of the Commonwealth.

35 A person authorised under section 252 of the Accident Compensation Act 1985 to file charge-sheets on behalf of the Victorian WorkCover Authority.

36 An officer of the Roads Corporation authorised under section 77(2)(d) of the Road Safety Act 1986 to prosecute any



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offence against that Act or the regulations made under that Act.

37 An officer of the Roads Corporation authorised under section 112 of the Road Safety Act 1986.

38 A person authorised by or under section 229 of the Transport (Compliance and Miscellaneous) Act 1983 to bring a proceeding for an offence against that Act or the regulations made under that Act.".

31 Statute law revision

In section 393(3) of the Principal Act, for "Incorporations" substitute "Incorporation".

Division 3—Transitional provisions for amendments by Divisions 1 and 2

32 New section 442 inserted


"442 Transitional provisions—Criminal Procedure Amendment Act 2012

(1) This Act as amended by Division 1 of Part 2 of the Criminal Procedure Amendment Act 2012 applies to an application for leave to appeal against sentence that is determined on or after the day on which Division 1 of Part 2 of that Act comes into operation, irrespective of when the application was commenced.

(2) Division 5 of Part 8.2 as amended by sections 22 and 23 of the Criminal Procedure Amendment Act 2012 applies irrespective of whether the recording is made



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before, on or after the commencement of those sections.

(3) Division 6 of Part 8.2 as amended by sections 24, 25, 26, 27, 28 and 29 of the Criminal Procedure Amendment Act 2012 applies to a proceeding in which a special hearing is held on or after the commencement of those sections.".

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PART 3—CHILDREN, YOUTH AND FAMILIES ACT 2005

33 Late notice of appeal deemed to be application for leave to appeal

s. 33See:Act No.96/2005.Reprint No. 3as at1 January 2011and amendingAct Nos51/2006 (as amended by Act No. 51/2009), 53/2010, 27/2011, 29/2011, 54/2011, 80/2011, 20/2012, 23/2012 and 26/2012.LawToday:www.legislation.vic.gov.au

After section 430(2) of the Children, Youth and Families Act 2005 insert—

"(3) If the appellate court does not grant leave to appeal under subsection (2), the appellate court must strike out the appeal.

(4) If—

(a) the appellate court strikes out an appeal under subsection (3); and

(b) the appellant had been sentenced to a period of detention in a youth residential centre or a youth justice centre by the Children's Court—

the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) may issue, in accordance with the Magistrates' Court Act 1989, a warrant to detain the person in a youth residential centre or a youth justice centre (as the case requires) and may recall and cancel that warrant.

Part 5—Repeal of Amending Act


21

(5) If an appeal is struck out under subsection (3)—

(a) the sentence of the Children's Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

(b) the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

(c) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.".

34 Heading to Division 6 of Part 5.4 of Chapter 5 amended

In the heading to Division 6 of Part 5.4 of the Children, Youth and Families Act 2005 omit "and referral of point of law to Court of Appeal".

35 New Division 6A inserted into Part 5.4 of Chapter 5

After section 430V of the Children, Youth and Families Act 2005 insert—

"Division 6A—Case stated for Court of Appeal

430VA Reservation of question of law

If on the hearing of an appeal to the County Court or the Trial Division of the Supreme Court from the Children's Court a question of law arises, the County Court or the Trial Division of the Supreme Court (as the case



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may be) may reserve the question for determination by the Court of Appeal if the County Court or the Trial Division of the Supreme Court is satisfied that it is in the interests of justice to do so, having regard to—

(a) the extent of any disruption or delay to the hearing that may arise if the question of law is reserved; and

(b) whether the determination of the question of law may—

(i) render the hearing unnecessary; or

(ii) substantially reduce the time required for the hearing; or

(iii) resolve a novel question of law that is necessary for the proper conduct of the hearing.

430VB Adjournment if question of law reserved

If a court reserves a question of law under section 430VA, the court must adjourn the hearing, if reasonably practicable, until the question of law has been determined.

430VC Refusal to reserve question of law

(1) If the County Court or the Trial Division of the Supreme Court refuses an application under section 430VA to reserve a question of law, the applicant may apply to the Court of Appeal for an order calling on—

(a) the court that dismissed the application; and

(b) the respondent—



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to show cause why the question of law should not be reserved for determination by the Court of Appeal.

(2) On an application under subsection (1), the Court of Appeal may order that the question of law be reserved for its determination or refuse the application with or without costs.

(3) If the Court of Appeal orders that the question of law be reserved, the court to which the order is directed must reserve the question for determination by the Court of Appeal.

430VD Case to be stated if question of law reserved

(1) If a court reserves a question of law under section 430VA or 430VC, it must state a case, setting out the question and the circumstances in which the question has arisen.

(2) The court must sign the case stated and transmit it within a reasonable time to the Court of Appeal.

(3) The Court of Appeal may return a case stated transmitted to it under subsection (2) for amendment and the court that stated the case must amend it as required.

430VE General powers of Court of Appeal on case stated

(1) The Court of Appeal may hear and finally determine a question of law set out in a case stated.

(2) The applicant is not required to attend the hearing under subsection (1).

430VF Judgment to be entered on record



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The Registrar of Criminal Appeals of the Supreme Court must transmit the judgment and order (if any) of the Court of Appeal to the court that reserved the question of law and that court must enter the judgment and order (if any) on the court record.".

36 New section 430WA inserted

After section 430W of the Children, Youth and Families Act 2005 insert—

"430WA Powers and procedure

Division 7 of Part 6.3 of the Criminal Procedure Act 2009 applies as if a reference to that Part were a reference to this Division.".


At the end of Part 8.6 of the Children, Youth and Families Act 2005 insert—

"622 Transitional provision—Criminal Procedure Amendment Act 2012

Division 6A of Part 5.4 applies to a question of law that arises in a proceeding on or after the commencement of section 35 of the Criminal Procedure Amendment Act 2012, irrespective of when the proceeding commenced.".

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PART 4—AMENDMENT OF OTHER ACTS

Division 1—Magistrates' Court Act 1989

38 Authority conferred by search warrants. 38

See:Act No.51/1989.Reprint No. 16as at1 January 2012 and amending Acts Nos 51/2006, 52/2008, 12/2010, 65/2011, 23/2012 and 26/2012.LawToday:www.legislation.vic.gov.au

In section 78(5) of the Magistrates' Court Act 1989 omit "that is bulky or cumbersome".

39 Warrants

(1) In section 57(7A) of the Magistrates' Court Act 1989, after "sections" insert "263(4),".

(2) In section 57(7B) of the Magistrates' Court Act 1989, after "sections" insert "430(4),".

40 New clause 49 inserted into Schedule 8

After clause 48 of Schedule 8 to the Magistrates' Court Act 1989 insert—



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Section 78(5) as amended by section 38 of the Criminal Procedure Amendment Act 2012 applies to a search warrant issued on or after the commencement of section 38 of that Act.".

Division 2—Drugs, Poisons and Controlled Substances Act 1981

41 Warrant to search premisess. 41

See:Act No.9719.Reprint No. 9as at1 July 2010and amendingAct Nos39/2010, 43/2010, 64/2010, 29/2011, 41/2011, 51/2011, 43/2011, 14/2012 and 27/2012.LawToday:www.legislation.vic.gov.au

After section 81(1AA) of the Drugs, Poisons and Controlled Substances Act 1981 insert—

"(1AB) For the purposes of subsection (1), a seized thing may be brought before the Court by giving evidence on oath to the Court as to the present whereabouts of the thing and by producing a photograph of it.".



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After section 142 of the Drugs, Poisons and Controlled Substances Act 1981 insert—


Section 81 as amended by section 41 of the Criminal Procedure Amendment Act 2012 applies to a search warrant issued on or after the commencement of section 41 of that Act.".

Division 3—Sentencing Act 1991

43 Sentence discount for guilty pleas. 43

See:Act No.49/1991.Reprint No. 13as at17 February 2012 and amending Act Nos 68/2010, 65/2011 and 26/2012.LawToday:www.legislation.vic.gov.au

For section 6AAA(4) of the Sentencing Act 1991 substitute—

"(4) If the court makes a statement under this section, it must record or cause to be recorded (whether in writing or another form) the matters stated under subsection (1), (2) or (3), as the case may be.".



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44 Aggregate sentence of imprisonment

(1) In section 9(4) of the Sentencing Act 1991, for "If the Supreme Court or the County Court hears and determines charges for summary offences under section 242 or 243 of the Criminal Procedure Act 2009 and imposes an aggregate sentence of imprisonment in respect of 2 or more of those offences" substitute "If a court imposes an aggregate sentence of imprisonment in respect of 2 or more offences".

(2) After section 9(4) of the Sentencing Act 1991 insert—

"(4A) For the avoidance of doubt, an aggregate sentence of imprisonment may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge.Note

A representative charge is a charge in an indictment for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates.".

45 Aggregate fines

(1) In section 51(2) of the Sentencing Act 1991, for "If the Supreme Court or the County Court hears and determines charges for summary offences under section 242 or 243 of the Criminal Procedure Act 2009 and proposes to impose an aggregate fine in respect of 2 or more of those



29

offences" substitute "If a court imposes an aggregate fine in respect of 2 or more offences".

(2) After section 51(2) of the Sentencing Act 1991 insert—

"(2A) For the avoidance of doubt, an aggregate fine may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge.Note

A representative charge is a charge in an indictment for an offence that is representative of a number of offences of the same type alleged to have been committed by the accused. A rolled-up charge is a charge in an indictment that alleges that the accused has committed more than one offence of the same type between specified dates.".


After section 144 of the Sentencing Act 1991 insert—

"145 Transitional provisions—Criminal Procedure Amendment Act 2012

(1) Section 9 as amended by section 44 of the Criminal Procedure Amendment Act 2012 applies to the sentencing of a person for offences on or after the commencement of section 44 of that Act, irrespective of when the offences were committed or the findings of guilt were made.

(2) Section 51 as amended by section 45 of the Criminal Procedure Amendment Act 2012 applies to the sentencing of a person for offences on or after the commencement of section 45 of that Act, irrespective of when the offences were committed or the findings of guilt were made.".



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Division 4—Crimes Act 1958

47 Retention of copy of recordings. 47

See:Act No.6231.Reprint No. 23as at1 April 2012 and amending Act Nos 16/2004, 49/2010, 65/2010 and 27/2011.LawToday:www.legislation.vic.gov.au

In section 464JC(2A) of the Crimes Act 1958, for "authorised person" (where twice occurring) substitute "investigating official".

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PART 5—REPEAL OF AMENDING ACT

48 Repeal of amending Act

This Act is repealed on 1 November 2013.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


33

† Minister's second reading speech—

Legislative Assembly: 21 June 2012

Legislative Council: 16 August 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Criminal Procedure Act 2009, the Children, Youth and Families Act 2005, the Magistrates' Court Act 1989, the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991, the Crimes Act 1958 and for other purposes."

Documents

Criminal Procedure Amendment Act 2012 - Victorian ...FILE/12-048a.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01 SectionPage Criminal Procedure Amendment Act 2012