this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Practice Notes

Every Issue

Cite as: (2008) 82(9) LIJ, p. 60

Federal Court

Cite as: (2008) 82(9) LIJ, p. 60

Federal Court Amendment Rules 2008 (No 1)

The Federal Court Amendment Rules 2008 (No 1) (Amendment Rules) were registered on the Federal Register of Legislative Instruments on 1 August 2008.

A copy of the Amendment Rules is available at http://www.comlaw.gov.au.

The Amendment Rules make the following amendments to the Federal Court Rules:

1. amend O.21 sub-r(2) to allow applications for an order under sub-r1(1) by a person against whom the vexatious proceedings had been instituted or conducted and
a person who has sufficient interest
and remove the reference to the Solicitor-General;

2. insert a new sub-rule O.23 sub-r11(6) to set out the cost consequences of the situation where an offer is made by the respondent and not accepted by the applicant and the judgment on the claim is in favour of the respondent or is more favourable than the terms of the offer;

3. insert a new rule O.41 r7A to provide for electronically affixing a facsimile of the signature of the registrar to documents in proceedings;

4. insert a new O.71A to provide that proceedings under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 are to be conducted in accordance with the Federal Court (Corporations) Rules 2000;

5. amend O.1 r5AC and forms 173 and 174 which will deal with the electronic filing of court documents.

The amendments mentioned in items 1 to 4 above commenced on the day after registration. The amendments mentioned in item 5 commenced on 1 September 2008.

Philip Kellow
Deputy Registrar

County Court

Cite as: (2008) 82(9) LIJ, p. 60

Sex Offences List

Practice Note PNCR 2-2008

This practice note supersedes PNCR 1-2005, PNCR 1-2007 and PNCR 1-2008.

Introduction

1. A Sexual Offences List commenced on 1 October 2005.

2. “Sexual offence” means any offence involving a sexual act or an attempt to commit a sexual act or an act alleged to be committed for the purpose of committing a sexual act.

3. The Chief Judge will appoint, from time to time, a judge or judges to be Sexual Offences Listing Judges.

4. This practice note deals with procedures for directions hearings of all sexual offences trials throughout Victoria, including procedures for circuit sexual offences matters starting from 16 April 2007.

5. This practice note also deals with procedures for hearing all sexual offences cases involving children1 or cognitively impaired2 complainants where the proceeding commenced on or after 1 December 2006,3 or where the accused was committed or directly presented for trial on or after 1 July 2008.4

Previous practice notes

6. The requirements of this practice note are additional to the requirements of any other relevant practice note and in particular replace Practice Notes 1 of 2005, 1 of 2007 and 1 of 2008. It varies previous practice notes dealing with circuit cases.5

Circuit cases

7. For directions hearings, the accused person may, together with his or her legal representative, appear via video link from a circuit court location. This may be arranged by liaising with the Circuit registry and Melbourne Criminal Listings.

8. Cases involving certain sex offences must be listed for trial within three months of committal, but if the trial is unable to proceed for any reason and is adjourned to subsequent sittings, extensions of time may be (and are) granted by the Court, usually in 3 month intervals.6 The exception is for cases which involve child or cognitively impaired witnesses for which the special hearing and trial must be held within three months of committal.7

9. Circuit cases will be managed in the same way as Melbourne cases in accordance with this practice note.

First directions hearing – in cases involving child or cognitively impaired complainants where proceeding commenced before 1 December 2006

See paragraphs 24-27 of this practice note.

First directions hearing – in cases involving child or cognitively impaired complainants where proceeding commenced on or after 1 December 2006 but the accused was committed or directly presented for trial before 1 July 2008

10. Where, before 1 July 2008, a person is committed for trial or plea for a sexual offence or for a number of sexual offences, where there is a complainant aged under 18 or a cognitively impaired complainant, the case will be listed at 9am on the closest Monday or Wednesday to the committal for a first directions hearing before a Sexual Offences Listing Judge.

11. Where, before 1 July 2008, a person is directly presented for trial for a sexual offence, or on a presentment including a sexual offence, where there is a complainant aged under 18 or a cognitively impaired complainant, the case will likewise be listed for a first directions hearing before a Sexual Offences Listing Judge at 9am on the closest Monday or Wednesday to the filing of the presentment, or another date as arranged with Criminal Listings.

12. The accused person must attend the first directions hearing, unless excused by a Sexual Offences Listing Judge.

13. At the first directions hearing,

13.1 if it is a trial, arrangements will be made for the special hearing for the evidence of the complainant(s) to be pre-recorded.8 The Listing Judge will set the time, date (within 21 days of committal) and location for the special hearing after consulting
the relevant registry and the parties. The parties will comply with paragraphs 18.1, 18.2 and 18.3 of this practice note.

13.2 the Listing Judge will:

(A) set a further directions hearing date in the week before the special hearing to confirm the legal issues and deal with any subpoenas

(B) set the date, time and location for the special hearing, including legal argument to be conducted before the Judge presiding over the special hearing, and confirm the time after the legal argument at which the complainant will be required for the recording
to begin.

13.3 if it is a plea, and the presentment has been filed, the accused will be arraigned and the plea date will be confirmed or, if the presentment has not been filed, another arraignment date will be set. If the accused announces an intention to plead not guilty, then the Listing Judge will immediately arrange for a special hearing and the matter will be given a trial date.

14. The matter will be further managed in accordance with this practice note.

First directions hearing – in cases involving child or cognitively impaired complainants where proceeding commenced on or after 1 December 2006 but the accused was committed or directly presented for trial on or after 1 July 2008

15. Where, after 1 July 2008, a person is committed for trial or plea9 for a sexual offence or for a number of sexual offences, where there is a complainant aged under 18 or a cognitively impaired complainant, the case will be listed at 9am on the Monday or Wednesday closest to 14 days after the committal, for a first directions hearing before a Sexual Offences Listing Judge, usually sitting in Melbourne.

16. Where, after 1 July 2008, a person is directly presented for trial for a sexual offence, or on a presentment including a sexual offence, where there is a complainant aged under 18 or a cognitively impaired complainant, the case will likewise be listed for a first directions hearing before a Sexual Offences Listing Judge at 9am on the Monday or Wednesday closest to 14 days after the filing of the presentment, or another date as arranged with Criminal Listings.

17. The accused person must attend the first directions hearing, unless excused by a Sexual Offences Listing Judge.

18. At the first directions hearing

18.1 if it is a trial, the Prosecution must

(A) file a signed presentment10 and the prosecution opening, including in that document whether uncharged acts, propensity evidence11 or previous representation evidence12 is to be relied on, stating the purpose for which the evidence is to be led

(B) inform the Listing Judge how many complainants are children and/or cognitively impaired and what their relationship is, if any, to the accused

(C) inform the Listing Judge of the level of cognitive development or ability of the child or cognitively impaired witness, if known, and provide to the Court written material supporting a finding of cognitive impairment and any expert report on which it seeks to rely

(D) inform the Listing Judge whether evidence is sought to be given in the form of recording pursuant to s37B Evidence Act 1958, and the length of such recording, or by the witness viva voce

(E) inform the Listing Judge whether there will be an application on behalf of the complainant pursuant to s41E(2) Evidence Act 1958 to give evidence in the courtroom rather than the mandatory procedure for use of the remote witness facility

(F) if the complainant is a child, inform the Listing Judge whether she or he has been referred to the Child Witness Service, or has some other form of support

(G) if the complainant is a cognitively impaired adult, inform the Listing Judge whether she or he has been referred to the Witness Assistance Service, Victims Support Agency, or has some other form of support

(H) inform the Listing Judge of the name and identity of the support person for the complainant at the special hearing, if known

(I) inform the Listing Judge whether there are any other arrangements required to be made for the giving of evidence by the complainant,13 or whether the witness is likely to be affected by any difficulties14

(J) inform the Listing Judge of any legal issues of which the prosecution is aware that need to be determined before the complainant gives evidence at the special hearing

(K) inform the Listing Judge whether competency is in issue and provide the court with written material on this issue and any expert report on which it seeks to rely

(L) confirm that the Prosecutor will see the complainant in conference in advance of the date fixed for the special hearing.

18.2 if it is a trial, the accused, or the legal representative of the accused, must inform the Listing Judge whether:

(A) the matter is likely to proceed
as a trial and what the likely issues are15

(B) the accused has legal representation for the special hearing16 and the trial

(C) the accused is in a position to fund his or her own defence

(D) the accused has made or intends to make an application for legal aid for the special hearing and/or the trial

(E) there are documents which may need to be produced at the special hearing and whether such documents will need to be the subject of a subpoena, including whether leave is required before the subpoena can be issued17
(see paragraph 18.4(A) below)

(F) there are any legal issues which need to be determined before the special hearing begins, and the estimate of time required. In particular,

(i) whether competency and/or cognitive impairment is in issue, and if so, whether expert evidence is to be relied on by the defence

(ii) whether any application is proposed to be made for the separate trial of any accused or any count

(iii) whether application will be made pursuant to s37A Evidence Act 1958 to have leave to cross-examine the complainant as to her or his sexual activities

(iv) whether application will be made to exclude any and which evidence sought to be relied on by the Prosecution, including whether application will be made to exclude:

– any evidence of complaint

– any evidence of uncharged acts

– any evidence sought to be relied on by the Prosecution to demonstrate propensity pursuant to s398A Crimes Act 1958

– all or part of any recording sought to be introduced as evidence-in-chief of the complainant by the prosecution pursuant to s37B Evidence Act 1958

(G) any notice of alibi has been given or will be given.

18.3 if it is a trial, both parties

(A) must inform the Listing Judge of the time required for determination of the pre-trial issues, the recording of the evidence at the special hearing, and the duration of the trial after empanelment

(B) will be advised to make arrangements in advance of the special hearing to ensure that the complainant will have access to proposed exhibits or other material at the remote location. Defence documents can be placed in a sealed envelope or folder to be provided to the tipstaff who will be with the witness in the remote witness facility, only to be shown to the witness at defence counsel’s request and with the Judge’s leave. Copies should ordinarily be available in court to be given to the prosecution counsel and presiding Judge if they are shown to the witness and adopted by her or him.

18.4 the Listing Judge will

(A) fix a further directions hearing as required to deal with any subpoenas, including those involving confidential communications18

(B) set a timetable for pre-trial management and determination of pre-trial issues, including filing of defence response, and set the second directions hearing before the trial Judge19

(C) allocate the trial Judge

(D) fix the date, time and location for pre-trial argument before the trial Judge

(E) fix the date,20 time and location for the special hearing21

(F) fix the date,22 time and location for the empanelment of the jury.

18.5 if it is a plea, and the presentment has been filed,23 the accused will be arraigned and the plea date will be confirmed or, if the presentment has not been filed, another arraignment date will be set. If the accused announces an intention to plead not guilty, then the Listing Judge will immediately deal with the matter in accordance with paragraphs 18.1 to 18.4, and the matter will be allocated to a trial Judge for special hearing and trial.

Pre-trial argument where accused committed on or after 1 July 2008

19. Where, after 1 July 2008, a person is committed for trial or directly presented for a sexual offence or for a number of sexual offences, and where there is a complainant aged under 18 or a cognitively impaired complainant, a date will be set for all pre-trial issues to be argued and determined by the trial Judge in the days immediately before the special hearing. The estimate given by the parties at the first directions hearing will determine the time allocated before the fixed date for the special hearing.

Special hearing where accused committed on or after 1 July 2008

20. At the special hearing, the trial Judge will determine any application pursuant to s400 Crimes Act and the competency of the witness.24 The evidence of the child or cognitively impaired complainant will then be taken and recorded on a separate recording, to be played before the jury at the subsequent trial or trials.25 All present in court will conduct the case as if a jury were present. Rulings on objections can be taken and dealt with in the usual way, including where it would be necessary to do so in the absence of the jury by pausing the recording of the evidence and resuming the recording after the objection has been heard.

21. After the special hearing, it is expected that the jury will be empanelled immediately or on the next sitting day,26 all pre-trial matters having been dealt with before the special hearing.

Empanelment following special hearing

22. A date will have been fixed by the Listing Judge for the empanelment of the jury. This will usually follow the special hearing immediately or on the next sitting day.

23. The trial Judge may determine if it is in the interests of justice to extend the period in which the trial is to be held outside the three month time limit.27

First directions hearing – in all other cases

24. When a person is committed for trial for a sexual offence or for a number of offences including a sexual offence, where either there is not a complainant aged under 18 or a cognitively impaired complainant, or the proceeding in respect of a child or a cognitively impaired complainant commenced before 1 December 2006, the case will be listed within 28 days of committal at 9am for a first directions hearing before a Sexual Offences Listing Judge.

25. Where a person is directly presented for trial for a sexual offence, or on a presentment including a sexual offence, where either there is not a complainant aged under 18 or a cognitively impaired complainant, or the proceeding in respect of a child or a cognitively impaired complainant commenced before 1 December 2006, the case will likewise be listed for a first directions hearing before a Sexual Offences Listing Judge at 9am within 28 days of the filing of the presentment.

26. The accused person must attend the first directions hearing, unless excused by a Sexual Offences Listing Judge.

27. At the first directions hearing

27.1 the prosecution must

(A) provide a draft presentment or file a signed presentment

(B) inform the Listing Judge of the nature of the relationship, if any, between the complainant and the accused

(C) if the proceeding is in respect of a child or a cognitively impaired complainant and commenced before 1 December 2006, comply with paragraph 18 of this practice note so far as is relevant28

(D) if the proceeding is not in respect of a child or a cognitively impaired complainant, inform the Listing Judge whether for the giving of evidence of the complainant

(i) application will be made pursuant to s37C of the Evidence Act 1958 for an alternative arrangement for the giving of her or his evidence, if the proceeding commenced before 1 December 2006

OR

(ii) if the proceeding commenced on or after 1 December 2006, there will be an application on behalf of the complainant pursuant to s37CAA(6) Evidence Act 1958 to give evidence in the courtroom rather than the mandatory procedure for use of the remote witness facility and

(E) inform the Listing Judge whether any other witness will apply to use the remote witness facility.29

27.2 the accused, or the legal representative of the accused, must inform the Listing Judge whether

(A) the matter is likely to proceed as a trial

(B) the accused has legal representation for the trial30

(C) the accused is in a position to fund his or her own defence

(D) the accused has made or intends to make an application for legal aid for the trial

(E) there are documents which may need to be produced at trial and whether such documents will need to be the subject of a subpoena, including whether leave is required before the subpoena can be issued31 (see paragraphs 28-36 below) and

(F) what the likely issues in the trial will be.32

27.3 the Listing Judge will

(A) confirm the trial date if the matter is likely to proceed as a trial, after receiving from the parties an estimate of the duration of the trial, and the number and availability of witnesses or

(B) fix a plea date if the matter has resolved to a plea of guilty

(C) have the discretion to allocate the case early to a trial Judge if the case will benefit from more intensive case management before the trial date.33

27.4 the Listing Judge will fix a final directions hearing usually 28 days before the trial date and make orders for the filing of the prosecution opening and defence response before that date.

27.5 if, for any reason, the Listing Judge is of the opinion that a further directions hearing should be held prior to the final directions hearing, the Listing Judge will fix a date for a further directions hearing.

Subpoenas (including those relating to confidential communications)

28. Any party (prosecution or defence) intending to issue a subpoena in a proceeding that relates wholly or partly to a sexual offence, where the proceeding commenced on or after 1 December 2006, or, if it commenced before that date but the hearing had not commenced or no evidence had been led, and where the intended subpoena will include, or potentially include, material which constitutes a confidential communication as defined in s32B(1) Evidence Act, must ensure that Division 2A of the Evidence Act is complied with. In addition, parties must comply with this practice note.

29. A party seeking to compel production of protected evidence or produce protected evidence as defined in s32B(1) Evidence Act must give notice in accordance with s32C Evidence Act. The notice must also be provided to the Listing Judge of the Sexual Offences List, through the associate.

30. The notice must contain a description of the material sought to be compelled to be produced or to be produced and a brief statement as to the matters relied on to satisfy the requirements of s32D Evidence Act.

31. Where the proceeding will include a special hearing pursuant to s41G Evidence Act, the party seeking to compel production or produce must, in consultation with the associate to the Listing Judge, have the matter listed for mention as soon as the party becomes aware that an application will be made. At that mention, the parties must be in a position to address matters relevant to refining the number and nature of documents sought and to the making of a direction under s32C(6) Evidence Act where appropriate.

32. In cases not involving a special hearing, the party seeking to compel production or produce must, in consultation with the associate to the Listing Judge, have the application listed for hearing having regard to the notice requirements referred to in paragraph 29. At the hearing of the application, the parties must be in a position to address matters relevant to refining the number and nature of documents sought and to the making of a direction under s32C(6) Evidence Act where appropriate.

33. Where leave is granted to compel production or produce, and upon issue of the subpoena, a party seeking to inspect the documents on the return of the subpoena must have the matter listed for that application to be made.

34. Where a party seeks leave to adduce protected evidence, that party must give notice in accordance with s32C(2) of the Evidence Act. The notice must also be provided to the Listing Judge, or to the trial Judge where allocated, through the associate.

35. The party seeking to adduce protected evidence must have the matter listed for that application to be made, or give notice that it is to be made at trial, having regard to the notice requirements referred to in paragraph 34.

36. Where there is a need to subpoena documents which do not relate to confidential communications,

36.1 the subpoena should be made returnable at an arranged date with the associate to the Listing Judge, as soon as possible after the committal

36.2 on the return date, the parties should be sufficiently familiar with the evidence and with the subject of the documents to be produced, to inform the court as to the legitimate forensic purpose for production, and whether the subpoena gives rise to privacy or privilege issues or issues under the confidential communications provisions of the Evidence Act (where the provisions as they existed before 1 December 2006 apply) and

36.3 if the party being compelled to produce the documents raises an objection, or if for any other reason the matter cannot be dealt with in a mention, the matter will be listed for argument at 10.30am on a date suitable to the parties and the Listing Judge.

Filing of presentment

37. Unless otherwise provided, not less than 28 days before the final directions hearing, the prosecutor must cause presentment to be made at and filed in the Court and at the same time, must file a summary of the prosecution opening and notice of pre-trial admissions.34 These documents must be served on each accused, or, where the accused is represented, provided to the accused’s solicitor or counsel.

Defence response

38. Unless otherwise provided, not less than 14 days before the final directions hearing, the accused must serve on the prosecution and file with the Court the defence response to the summary of the prosecution opening, and notice of pre-trial admissions.

39. Any questions of law, notice of a s37A application or expert witness statement to be relied on must be served and filed not less than 14 days before trial.35

Before the final directions hearing

40. Before the final directions hearing, it is expected that the following will have been done:

40.1 subpoenas will have been issued (leave having been obtained where necessary), returned to the Court and dealt with by the Listing Judge

40.2 presentment will have been made, and a copy served and filed together with a summary of the prosecution opening and notice of pre-trial admissions

40.3 a defence response to the summary of the prosecution opening and notice of pre-trial admissions will have been served and filed

40.4 any applications required in the circumstances of the case, including those referred to in paragraph 41 below, will have been prepared or made or notice will have been given.

Final directions hearing

41. Unless otherwise provided, the final directions hearing will be set down about 28 days before trial. At the final directions hearing, the prosecution and, where the accused is legally represented, the accused’s legal representative, must be sufficiently familiar with the evidence to inform the Listing Judge of the following:

41.1 the anticipated duration of the trial

41.2 whether any application is proposed to be made for the separate trial of any accused or any count

41.3 whether any subpoena to produce documents remains outstanding or any further subpoena is proposed to be served (despite paragraphs 28-36 herein) and whether any such subpoena requires leave to be issued, or is likely to give rise to privilege or privacy issues or issues under the confidential communications provisions of the Evidence Act 1958 (where the provisions as they existed before 1 December 2006 apply) and if so, whether leave is sought to adduce such evidence (under the previous or current provisions)36

41.4 whether application will be made pursuant to s37A Evidence Act 1958 to have leave to cross-examine the complainant as to his or her sexual activities37

41.5 whether notice of alibi has been given or is sought to be given after the expiry of the period referred to in s399A Crimes Act 1958

41.6 whether application will be made pursuant to either s37C or s37CAA Evidence Act 1958 (whichever applies) for the making of alternative arrangements for the giving of evidence, if not already made and dealt with

41.7 whether application will be made pursuant to s400 Crimes Act 1958 for a proposed witness to be exempt from giving evidence on behalf of the prosecution

41.8 whether application will be made to exclude any and which evidence sought to be relied on by the prosecution, including whether application will be made38 to exclude:

(A) any evidence of complaint

(B) any evidence of uncharged acts

(C) any evidence sought to be relied on by the prosecution to demonstrate propensity pursuant to s398A Crimes Act 1958

(D) the whole or part of any recording sought to be introduced by the prosecution pursuant to s37B Evidence Act 1958

(E) the whole or part of any tape-recorded interview with police

41.9 whether there is any circumstance which is likely to delay the empanelment of the jury or interrupt the flow of the trial39

41.10 whether any expert witness statement is to be filed and served and

41.11 the likely issues in the trial.

42. Counsel are to comply with s27 of the Crimes (Criminal Trials) Act 1999 in respect of confirming their availability for special hearings and trials and seek leave of the Court to relinquish a brief within seven days of the special hearing or trial commencing.

43. At the conclusion of the final directions hearing, the Listing Judge, having regard to the likely duration of pre-empanelment issues, will fix a date and time before which the jury will not be empanelled (“the time for empanelment”). It will not be necessary for a complainant to be present at court, nor to be available to attend court, prior to the time for empanelment unless the Listing Judge or the trial Judge otherwise directs.

Pre-trial applications

44. Nothing in this practice note prevents the Listing Judge in accordance with ss5(5) and 12(2) Crimes (Criminal Trials) Act 1999 from hearing and determining any application referred to in paragraph 41 or any other pre-trial application made by a party. This may be done on a date as arranged by the parties with the Listing Judge.

Judge Sexton
Judge in charge of the Sex Offences List
18 July 2008

Notes

1. A child is a person aged under 18 years: Evidence Act s3.

2. “Cognitive impairment” includes “ . . . mental illness, intellectual disability, dementia, or brain injury”: Evidence Act s3.

3. See Crimes (Sexual Offences) Act 2/2006 and Crimes (Sexual Offences) (Further Amendment) Act 76/2006.

4. See Justice Legislation Amendment (Sex Offences Procedure) Act 2008.

5. For example, Practice Note 1 of 2000, paragraph 5.

6. Crimes Act s359.

7. Cases involving child and cognitively impaired witnesses where the accused is committed or directly presented on or after 1 July 2008 must have a special hearing held for the pre-recording of the complainant’s evidence within three months of committal unless it is in the interests of justice because of the existence of exceptional circumstances to fix a longer time (s41G(4) Evidence Act as amended by s12(2) Justice Legislation Amendment (Sex Offences Procedure) Act 2008). The jury must be empanelled in such cases (and presumably the trial held) within three months of committal unless it is in the interests of justice to extend the period (s359A(2AA) and (2AAB) Crimes Act as amended by s3 Justice Legislation Amendment (Sex Offences Procedure) Act 2008).

8. Section 41G Evidence Act (before amendments which came into force 1 July 2008).

9. See paragraph 18.5.

10. A presentment in trials involving a child or cognitively impaired complainant must be filed within 14 days of committal. (s4(2)(aa) Crimes (Criminal Trials) Act 1999 as amended by s3 Justice Legislation Amendment (Sex Offences Procedure) Act 2008).

11. Evidence Act 1958 s398A.

12. Evidence Act 1958 s41D.

13. For example, dispensing with the wearing of wigs or robes; the use of an interpreter; more frequent breaks for medical or other reasons; any security concerns etc.

14. For example, whether the child has been removed from the family into the care of the Department of Human Services, or whether there are cultural or religious factors.

15. This could be whether the defence is likely to be belief in age/consent or the event did not happen, or identity. Other issues which could be raised for notice early are severance, propensity evidence, uncharged acts, admissibility of purported confessions in “pre-text conversations” or record of interview, or the holding of a voir dire on expert evidence including DNA, or Basha enquiries.

16. A self-represented accused is prohibited from personally cross-examining “protected witnesses”, which includes complainants: s37CA Evidence Act. The accused will therefore be represented at a special hearing for this purpose, if an order is made for Victoria Legal Aid to provide representation.

17. See s32C(1) Evidence Act (as amended by the Crimes (Sexual Offences) Act 2006) – a party cannot seek to compel another party to produce a document containing a confidential communication unless the court grants leave.

18. See paragraphs 28-36.

19. See sample timetable at Schedule 1 below.

20. Cases involving child and cognitively impaired witnesses where the accused is committed or directly presented on or after 1 July 2008 must have a special hearing held for the pre-recording of the complainant’s evidence within three months of committal unless it is in the interests of justice because of the existence of exceptional circumstances to fix a longer time (s41G(4) Evidence Act as amended by s12(2) Justice Legislation Amendment (Sex Offences Procedure) Act 2008).

21. Waiting times for complainants are to be kept to the minimum possible. Also, for younger children, early start times may be set, for example 9am.

22. The jury must be empanelled in such cases (and presumably the trial held) within three months of committal unless it is in the interests of justice to extend the period (s359A(2AA) and (2AAB) Crimes Act as amended by s3 Justice Legislation Amendment (Sex Offences Procedure) Act 2008).

23. A presentment in trials involving a child or cognitively impaired complainant must be filed within 14 days of committal (s4(2)(aa) Crimes (Criminal Trials) Act 1999 as amended by s3 Justice Legislation Amendment (Sex Offences Procedure) Act 2008).

24. See s23 Evidence Act (as amended by Crimes (Sexual Offences) Act 2006).

25. See s41H(2) Evidence Act. The recordings will be kept in secure storage at the County Court.

26. As pre-trial rulings will have been made before, and objections dealt with during, the pre-recording, no inadmissible material will be on the recording, and as the same Judge and counsel are involved in seeing the complainant give evidence, it is expected that there will no longer be a need for reviewing or editing the recording, as was the case before 1 July 2008.

27. Sections 359A(2AA) and (2AAB) Crimes Act as amended by s3 Justice Legislation Amendment (Sex Offences Procedure) Act 2008.

28. For example, no special hearing is to be held for these matters commencing before 1 December 2006, and so the procedures in respect of the pre-recording of evidence do not apply.

29. Evidence Act s37C.

30. A self-represented accused is prohibited from personally cross-examining “protected witnesses”, which includes complainants (s37CA Evidence Act). The accused will therefore be represented for this part of the trial at least, but an order must be made for Victoria Legal Aid to provide representation. Application may also be foreshadowed for representation to be ordered under s360A Crimes Act.

31. See s32C(1) Evidence Act (as amended by the Crimes (Sexual Offences) Act 2006) – a party cannot seek to compel another party to produce a document containing a confidential communication unless the court grants leave. See PNCR 1 of 2008 as to subpoenas involving confidential communications.

32. This could be whether the defence is likely to be consent, or belief in age or the event did not happen, or identity. Other issues which could be raised for notice early are severance, propensity evidence, uncharged acts, admissibility of purported confessions in “pre-text conversations” or record of interview, or the holding of a voir dire on expert evidence including DNA, or Basha enquiries.

33. Rulings on such things as severance, propensity evidence, uncharged acts, admissibility of purported confessions in “pre-text conversations” or record of interview, or the holding of a voir dire on expert evidence including DNA and rulings arising therefrom, or Basha enquiries, may be heard pre-trial so that the parties know how the evidence will proceed and the trial can begin immediately before the jury on the trial date with minimal waiting time for the complainant.

34. Pursuant to ss4(2)(a) and 6 Crimes (Criminal Trials) Act 1999. Original documents must be filed at registry. Copies of documents are to be provided direct to the associate to the Sexual Offences List Judge via email: sexoffences.list@countycourt.vic.gov.au or dedicated facsimile line: (03) 8636 6677.

35. Pursuant to ss7 and 9 Crimes (Criminal Trials) Act 1999. Original documents must be filed at registry. Copies of documents are to be provided direct to the associate to the Sexual Offences List Judge via email: sexoffences.list@countycourt.vic.gov.au or dedicated facsimile line: (03) 8636 6677.

36. Notice of intention to adduce evidence containing confidential communications must be given 14 days before the evidence is proposed to be adduced: s32C Evidence Act 1958.

37. A written application setting out the matters in s37A(5)(aa)(ii) Evidence Act 1958 must be given to the Director of Public Prosecutions at least 14 days before the trial date. To make application less than 14 days before trial, exceptional circumstances are required.

38. Pursuant to s10 Crimes (Criminal Trials ) Act 1999, notice of questions of law must be given to the Court at least 14 days before the trial date.

39. For example, the use of interpreters, or the mental or physical health of the accused or any witness, or the age of any witness, or security issues.

* Due to space constraints these forms have not been reproduced here. The full versions of VOCAT practice directions (including the forms) can be found at http://www.vocat.vic.gov.au under “Practice Directions and Guidelines”.

Comments




Leave message



 
 Security code
 
LIV Social
Footer