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PARLIAMENT OF VICTORIA
Magistrates' Court (Amendment) Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--COMMITTAL PROCEEDINGS 3
4. New Schedule 5 substituted 3
5. New sections 56A and 56B inserted 21
56A. Compulsory examination procedure 21
56B. Nothing in Act affects certain powers of DPP 22
6. New section 142 inserted 23
142. Rules of court--committal proceedings 23
7. Transitional provisions 25
8. Consequential amendments 26
PART 3--APPEALS 27
9. Powers of County Court on appeal 27
10. Removal of restriction on County Court powers on certain
appeals 28
11. New section 88AA inserted 28
88AA. Costs powers of County Court on appeal 28
12. New section 89A inserted 29
89A. Re-hearing where County Court hears appeal in
appellant's absence 29
13. Appellant to be informed that sentence may be increased 30
14. Abandonment of appeal 31
15. Appeal against aggregate sentence 31
16. Transitional provisions 32
17. Appeals under Children and Young Persons Act 1989 32
18. Time held in custody pending appeal 33
19. New section 120 inserted in Sentencing Act 1991 34
120. Transitional provisions--Magistrates' Court
(Amendment) Act 1998 34
20. New section 591 inserted in Crimes Act 1958 34
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Clause Page
591. Transitional provisions--Magistrates' Court
(Amendment) Act 1998 34
PART 4--MISCELLANEOUS 35
21. New section 13B inserted in Principal Act 35
13B. Development and training of magistrates and registrars 35
22. Rules with respect to service outside Australia 35
23. Requirements for appointment as registrar 35
24. Power of Magistrates' Court to restrain publication, etc. 36
25. Circumstances in which Supreme Court may be closed 37
26. New section 139A inserted in Supreme Court Act 1986 37
139A. Transitional provision 37
27. Injunctive power of County Court in criminal proceedings 38
28. New sections 80 and 80AA substituted in County Court Act
1958 38
80. Power to close proceedings to the public 38
80AA. Circumstances in which order may be made under
section 80 39
29. New section 89 inserted in County Court Act 1958 40
89. Transitional provisions 40
30. Penalties on breaching sentencing orders 40
31. Minor amendments 40
NOTES 43
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PARLIAMENT OF VICTORIA
A BILL
to amend the Magistrates' Court Act 1989, the Supreme Court Act
1986, the County Court Act 1958, the Crimes Act 1958, the
Children and Young Persons Act 1989 and the Sentencing Act
1991 and for other purposes.
Magistrates' Court (Amendment) Act
1998
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to reform committal proceedings in the
5 Magistrates' Court;
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(b) to change the system of appeals from the
Magistrates' Court in criminal proceedings;
(c) to broaden the civil rule-making powers
under the Magistrates' Court Act 1989;
5 (d) to make the Chief Magistrate responsible for
the professional development and training of
magistrates and registrars;
(e) to empower the Magistrates' Court to
prohibit publication of material relevant to a
10 pending proceeding;
(f) to enlarge the power of the County Court to
grant injunctive relief in criminal
proceedings and the power of the Supreme
Court and County Court to close the court in
15 both civil and criminal proceedings;
(g) to amend the penalties for certain offences
under the Sentencing Act 1991 constituted
by the breach of a sentencing order.
2. Commencement
20 (1) This Part and Part 4 come into operation on the
day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act come into
operation on 1 July 1999.
3. Principal Act
No. 51/1989.
25 In this Act, the Magistrates' Court Act 1989 is
Reprint No. 5
called the Principal Act.
as at 1 July
1998. Further
amended by
Nos 84/1997
and 15/1998.
_______________
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PART 2--COMMITTAL PROCEEDINGS
4. New Schedule 5 substituted
For Schedule 5 to the Principal Act substitute--
'SCHEDULE 5
5 Section 56
PROVISIONS APPLICABLE TO COMMITTAL
PROCEEDINGS
PART 1--PRELIMINARY
1. Definitions and provision about service
10 (1) In this Schedule--
"committal mention date" means the date on which a
committal mention hearing is held under clause 4;
"prescribed" means prescribed by the Rules;
"registrar" means the registrar at the venue of the Court at
15 which a committal proceeding is to be held.
(2) If a legal practitioner has filed an appearance on behalf of a
defendant or has given notice in writing to the registrar that
he or she is representing a defendant or is willing to accept
service of documents on behalf of a defendant, a document
20 required by this Schedule to be served personally on the
defendant must be taken to have been duly served on the
defendant if it is served personally on that legal practitioner.
2. Power of Court to control committal proceedings
Without limiting its powers under section 136 or prejudicing
25 the need for the defendant to be dealt with fairly, the Court
may at any stage of a committal proceeding give any
direction for the conduct of the proceeding which it
considers to be consistent with the interests of justice and
conducive to--
30 (a) defining the issues in the proceeding; or
(b) the prompt and efficient disposal of the proceeding.
PART 2--MENTION HEARINGS
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3. Special mention hearing
(1) The purposes of a special mention hearing are to--
(a) ensure that the Court can adequately control and
oversee the progress of the committal proceeding;
5 (b) provide an opportunity for the Court to set timetables
for the expeditious and efficient progress of the
committal proceeding;
(c) enable the expeditious committal of a defendant for
trial if the defendant indicates an intention to plead
10 guilty to the offence;
(d) provide an opportunity for a matter to be dealt with
without the necessity to hold a committal proceeding.
(2) A date for a special mention hearing may be fixed in
accordance with the Rules.
15 (3) More than one special mention hearing may be held in the
course of a committal proceeding.
(4) Unless excused by the Court--
(a) the informant or his or her representative; and
(b) the defendant and the legal practitioners representing
20 the defendant--
must attend a special mention hearing.
(5) A special mention hearing may be cancelled in accordance
with the Rules.
4. Committal mention hearing
25 (1) At a committal mention hearing the Court may--
(a) immediately determine the committal proceeding;
(b) determine any application for a summary hearing
under section 53(1) or offer a summary hearing under
that section;
30 (c) hear and determine an application for leave to cross-
examine a witness notice of which was given under
clause 12(1);
(d) hear and determine any objection to disclosure of
material;
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(e) subject to sub-clause (7), adjourn the hearing of the
committal proceeding to enable the defendant to
obtain legal representation or for any other reason;
(f) fix another committal mention date.
5 (2) A committal mention hearing must be held in accordance
with the Rules within--
(a) the period of 3 months after the commencement of the
proceeding for the offence if the offence is--
(i) an offence against section 38, 39 (if the
10 complainant was under the age of 16 at the time
of the alleged offence), 44, 45, 46, 47, 47A, 51,
52 or 57 of the Crimes Act 1958; or
(ii) an offence of attempting to commit an offence
referred to in sub-paragraph (i); or
15 (iii) an offence of committing an assault with intent
to commit an offence referred to in sub-
paragraph (i); or
(b) in the case of any other offence, the period of
6 months after the commencement of the proceeding
20 for the offence--
or any other period fixed by the Court under sub-clause (3).
(3) The Court may fix a longer or shorter period for the holding
of a committal mention hearing but cannot do so after the
period referred to in sub-clause (2)(a) or (b) (as the case
25 requires), or any other period previously fixed under this
sub-clause, has expired unless the Court is satisfied that,
having regard to all the circumstances of the case including
the seriousness of the offence and the overall interests of
justice, another period should be fixed because of the
30 existence of exceptional circumstances or another good and
sufficient reason.
(4) Sub-clause (2) does not apply--
(a) if the defendant has failed to appear in accordance
with the conditions of his or her bail; or
35 (b) if a warrant to arrest the defendant has been issued
and at the end of the period referred to in sub-clause
(2)(a) or (b) (as the case requires) from the
commencement of the proceeding for the offence the
defendant has not been arrested; or
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(c) if the defendant requests that a committal mention
hearing be held after the period referred to in sub-
clause (2)(a) or (b) (as the case requires) and the
Court is satisfied that in the interests of justice the
5 request should be granted.
(5) If a committal mention hearing has not been held before the
period referred to in sub-clause (2)(a) or (b) (as the case
requires), or any other period fixed under sub-clause (3), has
expired, the Court may, on the application of the defendant,
10 order the defendant to be discharged.
(6) Unless excused by the Court--
(a) the informant or his or her representative; and
(b) the defendant and the legal practitioners representing
the defendant--
15 must attend a committal mention hearing.
(7) The Court must, in considering whether to adjourn the
hearing of a committal proceeding to enable the defendant
to obtain legal representation, have regard to whether the
defendant has made reasonable attempts to obtain legal
20 representation.
PART 3--SERVICE OF PROSECUTION BRIEFS
5. Plea brief may be served by informant
(1) With the consent in writing of the defendant, or a legal
practitioner representing the defendant, given at any time
25 before service of a hand-up brief under this Part, the
informant may serve personally on the defendant a plea
brief containing--
(a) a copy of the charge-sheet relating to the offence; and
(b) a statement of the material facts relevant to the
30 charge; and
(c) a copy of any statement relevant to the charge signed
by the defendant, or a record of interview of the
defendant, that is in the possession of the informant;
and
35 (d) a copy, or a transcript, of any tape-recording within
the meaning of Subdivision (30A) of Division 1 of
Part III of the Crimes Act 1958; and
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(e) a copy or statement of any other evidentiary material
that is in the possession of the informant relating to a
confession or admission relevant to the charge made
by the defendant.
5 (2) The informant must include in a plea brief a copy of any
statement, that is in his or her possession and the contents of
which would be admissible in evidence, made by an alleged
victim of an offence to which the committal proceeding
relates about the circumstances of the offence.
10 (3) The informant may include in a plea brief any other
statement relevant to the charge that the informant wants to
include in the circumstances.
(4) Clause 8 applies to a statement under sub-clause (2) or (3) in
the same way that it applies to a statement that the informant
15 intends to tender at the committal proceeding.
(5) Service of a plea brief may be proved in any manner in
which service of a summons to answer to a charge may be
proved under section 35.
(6) The informant must file a copy of the plea brief with the
20 registrar, and forward another copy to the Director of Public
Prosecutions, as soon as practicable after service of the brief
on the defendant.
6. Service of hand-up brief by informant
(1) Subject to sub-clause (2), the informant must serve on the
25 defendant a hand-up brief which must contain--
(a) a notice in the prescribed form--
(i) specifying the committal mention date; and
(ii) explaining the nature of a committal proceeding
and the purpose of the various stages; and
30 (iii) explaining the importance of the defendant
obtaining legal representation, describing the
effect of clause 4(7) and providing details of
how to contact Victoria Legal Aid; and
(b) a copy of the charge-sheet relating to the offence; and
35 (c) a list of the persons who have made statements that
the informant intends to tender at the committal
proceeding together with copies of those statements;
and
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(d) if a person has been examined under section 56A and
the informant intends to tender a record of that
examination at the committal proceeding, a transcript
of the recording of the examination; and
5 (e) a copy of any document that the informant intends to
produce as evidence; and
(f) a list of any things proposed to be tendered as
exhibits; and
(g) a photograph of any proposed exhibit that cannot be
10 described in detail in the list; and
(h) if the committal proceeding relates (wholly or partly)
to a charge for--
(i) a sexual offence; or
(ii) an offence which involves an assault on, or
15 injury or a threat of injury to, a person--
a transcript of any audio or video recording of a kind
referred to in section 37B(2) of the Evidence Act
1958 that the informant intends to tender at the
committal proceeding; and
20 (i) if the committal proceeding relates (wholly or partly)
to a charge for a sexual offence, a copy of every
statement made by the complainant to any member of
the police force that relates to the offence with which
the defendant is charged and contains an
25 acknowledgment of its truthfulness; and
(j) a description of any forensic procedure, examination
or test that has not yet been completed and on which
the informant intends to rely as tending to establish
the guilt of the defendant; and
30 (k) a list of any other admissible statements or other
documents relevant to the charge that are available to
the informant but on which the informant does not
intend to rely; and
(l) any other list of material required by the Rules to be
35 included in a hand-up brief.
(2) The informant is not required to serve a hand-up brief if he
or she has served a plea brief under clause 5 and the
defendant pleads guilty to the charge.
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(3) Nothing in this clause takes away from any duty otherwise
imposed on the prosecution to disclose to the defence
material relevant to a charge.
7. Time for service of hand-up brief
5 (1) The hand-up brief must be served personally on the
defendant at least 28 days before the committal mention
date unless--
(a) the Court fixes another period at a special mention
hearing; or
10 (b) the defendant consents in writing to a lesser period.
(2) Service of a hand-up brief may be proved in any manner in
which service of a summons to answer to a charge may be
proved under section 35.
(3) The informant must file a copy of the hand-up brief with the
15 registrar, and forward another copy to the Director of Public
Prosecutions, as soon as practicable after service of the brief
on the defendant.
(4) If a document a copy of which would have been required to
be included, or material which would have been required to
20 be listed, in a hand-up brief had it been in the informant's
possession, or had the informant been aware of it, at the
time of service of the hand-up brief, comes into the
informant's possession or to his or her notice at any time
thereafter, a copy of the document or the list (as the case
25 requires) must be served on the defendant, and a copy filed
with the registrar and another copy forwarded to the
Director of Public Prosecutions, as soon as practicable after
the document or material comes into the informant's
possession or to his or her notice.
30 8. Rules with respect to statements
(1) A statement that the informant intends to tender at the
committal proceeding must be--
(a) in the form of an affidavit; or
(b) signed by the person making the statement and
35 contain an acknowledgment signed by that person 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
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(ii) a member of the Australian Federal Police; or
(iii) an Administrative Service Officer, Class 5 or
higher, in the Australian Customs Service--
that the statement is true and correct and is made in the
5 belief that a person making a false statement in the
circumstances is liable to the penalties of perjury.
(2) A statement that the informant intends to tender at the
committal proceeding must not disclose the address or
telephone number (including a private, business or official
10 address or telephone number) of the person who made the
statement or of any other living individual unless--
(a) the statement does not identify the address or
telephone number as that of any particular person; or
(b) the address or telephone number is a materially
15 relevant part of the evidence; or
(c) the Court permits the disclosure on an application
made by the informant or the defendant--
and, for this purpose, the informant may delete, or render
illegible, an address or telephone number included in the
20 statement or any copy of the statement before service on the
defendant.
(3) The Court may only grant an application made under sub-
clause (2)(c) if satisfied that--
(a) disclosure is not likely to present a reasonably
25 ascertainable risk to the welfare or protection of any
person; or
(b) the interests of justice (including the defendant's right
to prepare properly for the committal proceeding or
for trial) outweigh any such risk.
30 (4) Compliance, or a failure to comply, with sub-clause (2) does
not affect the admissibility of a statement.
(5) If a person under the age of 18 years makes a statement that
the informant intends to tender at the committal proceeding,
the statement must include the person's age.
35 (6) If a person who cannot read makes a statement that the
informant intends to tender at the committal proceeding--
(a) the statement must be read to the person before he or
she signs it; and
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(b) the acknowledgment must state that the statement was
read to the person before he or she signed it.
(7) A person who acknowledges a statement that the informant
intends to tender at the committal proceeding and that the
5 person knows at the time to be false is liable to the penalties
of perjury.
9. Rules with respect to recordings
(1) A transcript of an audio or video recording, including a
recording of an examination under section 56A, must be
10 accompanied by an affidavit sworn by the person who asked
the questions, or made the recording, attesting to the
accuracy of the recording.
(2) A person who acknowledges the contents of a recording that
the informant intends to tender at the committal proceeding
15 and that the person knows at the time to be false may be
dealt with as if the contents of the recording had been
evidence given in court.
10. Inspection of exhibits
The defendant may inspect the exhibits at a time and place
20 agreed between the defendant and the informant.
PART 4--PROCEDURE WHERE PLEA BRIEF SERVED
11. Procedure where plea brief served and filed
(1) If a plea brief is served under clause 5, then on the
committal mention date or at a special mention hearing held
25 after the filing of a copy of the brief under clause 5(6), the
Court must--
(a) caution the defendant in the prescribed manner and
inform the defendant of the options set out in section
398 of the Crimes Act 1958 and of the provisions of
30 section 399A of that Act and, if relevant, of Rules (5)
to (5C) in section 37A(1) of the Evidence Act 1958;
and
(b) if the defendant pleads guilty to the charge to which
the committal proceeding relates and, in the opinion
35 of the Court, the evidence is of sufficient weight to
support a conviction for the offence with which the
defendant is charged, commit the defendant for trial.
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(2) If the defendant does not plead guilty to the charge to which
the committal proceeding relates, the Court must direct the
informant to prepare and serve a hand-up brief.
PART 5--PROCEDURE WHERE HAND-UP BRIEF SERVED
5 12. Defence notice
(1) If a hand-up brief is served under clause 6, the defendant
may, no later than 14 days before the committal mention
date, give notice in writing to the informant, the Director of
Public Prosecutions and the registrar stating that the
10 defendant--
(a) intends to seek leave to cross-examine at the
committal proceeding a specified person or persons
who made a statement a copy of which was served in
the hand-up brief or a transcript of a recording of
15 whose evidence-in-chief or examination under section
56A was served in the hand-up brief, the scope and
purpose of the proposed questioning and how it has
substantial relevance to the facts in issue;
(b) requires specified items as listed in the hand-up brief
20 in accordance with clause 6(1)(j), (k) or (l) to be
produced for inspection or a copy given to the
defendant on or before the committal mention date;
(c) is prepared, or is not prepared, to proceed, or proceed
further, with the hearing of the committal proceeding
25 while a forensic procedure, examination or test
described in the hand-up brief in accordance with
clause 6(1)(j) remains uncompleted.
(2) The defendant must include in the notice under sub-clause
(1) any other thing required by the Rules to be included.
30 (3) Subject to sub-clause (4)(a), the informant must comply
with any reasonable request under sub-clause (1)(b) for a
copy of an item but, if the informant considers that it is not
reasonable to copy the item owing to its size or nature, the
informant must allow the defendant to inspect it on or
35 before the committal mention date.
(4) Nothing in this clause--
(a) prevents the informant objecting to the production of
any item requested under sub-clause (1)(b) on any
ground on which the informant might object if
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production of the item were sought by a witness
summons; or
(b) prevents the defendant applying for the issue of a
witness summons in respect of any item listed in the
5 hand-up brief in accordance with clause 6(1)(j), (k) or
(l); or
(c) requires the informant to produce any item referred to
in paragraph (b) if its production is not requested
under sub-clause (1)(b) or a witness summons is not
10 issued in respect of it, unless the Court otherwise
orders; or
(d) prevents the Court or the informant proceeding, or
proceeding further, with the hearing of the committal
proceeding irrespective of any statement included by
15 the defendant in the notice under sub-clause (1)(c).
(5) Nothing in this clause prevents the Court, because of the
existence of exceptional circumstances, allowing the
defendant to apply for leave to cross-examine a witness after
the expiry of the period for giving a notice under sub-clause
20 (1).
13. Application for leave to cross-examine a witness
(1) This clause applies to a witness who made a statement a
copy of which was served in the hand-up brief or a
transcript of a recording of whose evidence-in-chief or
25 examination under section 56A was served in the hand-up
brief.
(2) A witness to whom this clause applies cannot be cross-
examined without leave.
(3) Sub-clause (2) also applies to any oral evidence-in-chief
30 supplementary to the statement or recording that the witness
may give with the leave of the Court.
(4) The Court must not grant leave to cross-examine a witness
to whom this clause applies unless satisfied--
(a) that the evidence sought to be adduced by the
35 proposed questioning has substantial relevance to the
facts in issue; and
(b) if the witness is under the age of 18 years, that the
interests of justice cannot be adequately served except
by granting leave.
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(5) In considering whether to grant leave in accordance with
sub-clause (4), the Court must have regard to--
(a) the need to ensure that the case for the prosecution is
adequately disclosed; and
5 (b) the need to ensure that the issues are adequately
defined; and
(c) the need to ensure that the evidence is of sufficient
weight to support a conviction for the offence with
which the defendant is charged; and
10 (d) the interests of justice.
(6) Subject to clause 14(1), a witness to whom this clause
applies is not required to attend a committal proceeding.
14. Attendance of witnesses
(1) If leave is granted to cross-examine a witness to whom
15 clause 13 applies or to call such a witness to give oral
evidence-in-chief, the witness must attend on the date to
which the hearing of the proceeding is adjourned for the
witness to give evidence and, if he or she does not do so, his
or her statement or recorded evidence or examination is
20 inadmissible in evidence.
(2) If a witness who is required to attend a committal
proceeding does not attend, the Court may--
(a) adjourn the proceeding; or
(b) cause a warrant to arrest or summons to be issued to
25 compel the attendance of the witness; or
(c) continue the committal proceeding in the absence of
the witness if satisfied that it would not be unfair to
the defendant to do so.
(3) A witness who is required to attend a committal proceeding
30 must attend on any date to which the hearing of the
proceeding is adjourned unless excused from attendance by
the Court.
15. Giving of evidence by witnesses
(1) If the Court grants leave for the cross-examination of a
35 witness to whom clause 13 applies, the witness must confine
his or her evidence-in-chief to identifying himself or herself
and attesting to the truthfulness of the statement or of the
contents of the recording.
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(2) With the leave of the Court, the prosecution may call--
(a) a witness to whom clause 13 applies--
(i) to give the whole of his or her evidence-in-
chief orally; or
5 (ii) to give oral evidence-in-chief supplementary to
the statement or recording; or
(b) any other witness to give oral evidence-in-chief.
(3) In considering whether to grant leave under sub-clause (2),
the Court must have regard to the interests of justice and
10 must not, except where exceptional circumstances exist,
grant leave for a witness to whom clause 13 applies to give
the whole of his or her evidence-in-chief orally.
(4) Subject to clause 13(2) and (3), a witness who gives
evidence-in-chief may be cross-examined and re-examined.
15 (5) Evidence given at a committal proceeding must be recorded
in accordance with Part VI of the Evidence Act 1958.
16. Cross-examination of witnesses
Without limiting any other power that it has to forbid or
disallow questions, the Court may disallow any question
20 asked of a witness in the course of cross-examination in a
committal proceeding which appears to the Court--
(a) to have no substantial relevance to facts in issue; or
(b) to be beyond the scope of the questioning for which
leave to cross-examine was granted; or
25 (c) to be repetitive of an earlier question; or
(d) to be oppressive in the form, or manner, in which it is
asked.
17. Special rules applicable to sexual offences
(1) This clause applies to a committal proceeding relating to a
30 charge for a sexual offence, whether or not the committal
proceeding relates to any other charge against the same or
any other person and whether or not it is alleged that there
are aggravating circumstances.
(2) The informant must be represented by a legal practitioner.
35 (3) While the complainant is giving evidence or a recording of
the evidence of the complainant or of his or her examination
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under section 56A is being played, only the following may
be present--
(a) the informant;
(b) the defendant;
5 (c) a person whom the complainant wishes to have
present for the purpose of providing emotional
support to him or her and who is reasonably available
and approved by the court to be present;
(d) the legal practitioners and their clerks acting for the
10 prosecution and the defence;
(e) the court officials whose presence is required;
(f) authorized officers within the meaning of the Court
Security Act 1980 whose presence is required for
court security purposes;
15 (g) any person recording the evidence in accordance with
Part VI of the Evidence Act 1958;
(h) other persons who have been authorised by the Court
to be present.
(4) The Court must give reasons for authorising a person to be
20 present under sub-clause (3)(h).
18. Admissibility of non-oral evidence
(1) On proof of their service on the defendant in accordance
with Part 3 the following are, subject to sub-clauses (2) and
(3), admissible as if their contents were a record of evidence
25 given orally--
(a) any statement the truthfulness of which has been
attested to;
(b) subject to clause 14(1), any other statement a copy of
which has been served in the hand-up brief;
30 (c) any exhibit or document referred to in a statement
which is admissible;
(d) any recording the truthfulness of the contents of
which has been attested to;
(e) any other recording a transcript of which has been
35 served in the hand-up brief.
(2) The Court may rule as inadmissible the whole or any part
of--
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(a) a statement; or
(b) any exhibit or document referred to in a statement; or
(c) the contents of a recording.
(3) A recording, a transcript of which has been served in the
5 hand-up brief, is only admissible if it is proved that the
defendant and his or her legal practitioner were given a
reasonable opportunity to listen to and, in the case of a
video recording, view the recording.
19. Procedure if defendant makes admission of relevant fact or
10 matter
(1) If under section 149A of the Evidence Act 1958 a
defendant makes, during a committal proceeding, an
admission of any fact or matter that is relevant in the
proceeding, the Court must cause the admission to be
15 included in the record of the proceeding.
(2) An admission made by a defendant during a committal
proceeding may be used in evidence at the subsequent trial.
20. Absence of defendant
(1) If the Court--
20 (a) has commenced to conduct a committal proceeding;
and
(b) is satisfied that there are special circumstances in
respect of a defendant; and
(c) is of the opinion that the committal proceeding cannot
25 be postponed without undue prejudice or
inconvenience to the prosecution or any other
defendant or any witness--
the Court may, on application made by or on behalf of a
defendant, authorise the defendant to be absent from the
30 committal proceeding for a period fixed by the Court,
subject to any conditions, limitations or restrictions that the
Court imposes.
(2) If, during a committal proceeding, a defendant--
(a) absconds; or
35 (b) behaves in a manner necessitating the defendant's
removal from the court room and the Court orders the
defendant to be removed; or
(c) is authorised under sub-clause (1) to be absent; or
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(d) is absent for any other reason--
the Court may continue the committal proceeding in the
absence of the defendant if the Court is of the opinion that
the committal proceeding cannot be postponed without
5 undue prejudice or inconvenience to the prosecution or any
other defendant or any witness.
21. Procedure if defendant absent at close of prosecution case
If--
(a) a committal proceeding is continued in the absence of
10 a defendant; and
(b) the defendant is not present when the evidence for the
prosecution is concluded--
the Court must, unless it makes an order under clause
23(2)(a) for the defendant to be discharged--
15 (c) postpone the committal proceeding until the
defendant is present; or
(d) if any other defendant is present, postpone the
committal proceeding in respect of the charge against
the absent defendant.
20 22. Procedure on defendant's attendance after absence
If a defendant--
(a) has been absent from a committal proceeding; and
(b) was not represented by a legal practitioner during the
absence--
25 then, on the defendant's attendance, the Court--
(c) must direct that--
(i) the record of evidence be played or the
shorthand notes be read in the presence of the
defendant; or
30 (ii) the defendant be supplied with a transcript of
the evidence; and
(d) may, on the application of the defendant, recall for
further examination any witness who gave oral
evidence during the defendant's absence.
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23. Determination of committal proceeding
(1) After the evidence for the prosecution is concluded, the
Court must enquire whether the defence intends to call any
witness or make any submission.
5 (2) If the defence indicates that it does not intend to call any
witness or make any submission, the Court must--
(a) if in its opinion the evidence is not of sufficient
weight to support a conviction for any indictable
offence, order the defendant to be discharged; or
10 (b) if in its opinion the evidence is of sufficient weight to
support a conviction for the offence with which the
defendant is charged--
(i) caution the defendant in the prescribed manner;
and
15 (ii) inform the defendant of the options set out in
section 398 of the Crimes Act 1958 and of the
provisions of section 399A of that Act and, if
relevant, of Rules (5) to (5C) in section 37A(1)
of the Evidence Act 1958; and
20 (iii) commit the defendant for trial; or
(c) if in its opinion the evidence is of sufficient weight to
support a conviction for an indictable offence other
than that with which the defendant is charged, direct
the informant to prepare a charge for that offence and
25 cause the defendant to be charged with that offence
and then proceed in accordance with paragraph (b)(i)
and (ii) and commit the defendant for trial.
(3) At the conclusion of the evidence of the witness or
witnesses called by the defence or any submissions made by
30 the defence, the Court must--
(a) if in its opinion the evidence is not of sufficient
weight to support a conviction for any indictable
offence, order the defendant to be discharged; or
(b) if in its opinion the evidence is of sufficient weight to
35 support a conviction for the offence with which the
defendant is charged, proceed in accordance with sub-
clause (2)(b)(i) and (ii) and commit the defendant for
trial; or
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(c) if in its opinion the evidence is of sufficient weight to
support a conviction for an indictable offence other
than that with which the defendant is charged--
(i) direct the informant to prepare a charge for that
5 offence and cause the defendant to be charged
with that offence; and
(ii) proceed in accordance with sub-clause (2)(b)(i)
and (ii) and commit the defendant for trial.
PART 6--PROCEDURE AFTER COMMITTAL
10 24. Procedure after committal
(1) On committing a defendant for trial the Court must--
(a) if the defendant was not represented by a legal
practitioner in the committal proceeding, explain to
the defendant the importance of obtaining legal
15 representation for the trial; and
(b) remand the defendant in custody, or grant bail, until
trial.
(2) After committal the registrar must forward to the Director of
Public Prosecutions--
20 (a) a copy of any plea brief filed in the Court in the
proceeding; and
(b) the depositions; and
(c) all exhibits which have remained in the custody of the
Court; and
25 (d) copies of all process filed in the Court in the
proceeding; and
(e) copies of all bail undertakings in the proceeding.
(3) A defendant committed for trial is entitled as soon as
possible after being committed--
30 (a) to receive free of charge from the Director of Public
Prosecutions--
(i) a copy of the depositions; and
(ii) subject to this Schedule and the regulations
made under section 152 of the Evidence Act
35 1958, a copy of any exhibit not previously
supplied to the defendant, if in the opinion of
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s. 4
5
Act No.
the Director of Public Prosecutions it is
reasonable to provide a copy for the preparation
of the defence; and
(b) to examine any exhibits.
5 PART 7--COSTS OF COMMITTAL PROCEEDINGS
25. Costs order
Without limiting its discretion under section 131(1), the
Court may take into account, in determining whether to
award costs against a party, any unreasonable failure on the
10 part of the party to comply with the requirements of this
Schedule, or with any order made by the Court under this
Schedule, that it is satisfied resulted in prolonging the
proceeding.
26. Court may adjourn consideration of costs where defendant
15 discharged
(1) If the Court orders the defendant to be discharged under
clause 23, it may adjourn the further determination of the
proceeding for a period of up to 60 days to enable it to
determine whether to award costs against the informant in
20 the exercise of its discretion under section 131(1).
(2) Without limiting its discretion under section 131(1), the
Court may take into account in determining whether to
award costs against the informant the fact (if it is a fact) that
the Director of Public Prosecutions has made presentment of
25 the person for an offence on a charge for which the person
was discharged.'.
5. New sections 56A and 56B inserted
After section 56 of the Principal Act insert--
"56A. Compulsory examination procedure
30 (1) The Court may, on the application of the
informant at any time before the committal
mention date without notice to the defendant,
make an order requiring a person to attend
before the Court on a date fixed by the Court
35 for the purpose of being examined by or on
behalf of the informant or producing a
document or thing or both.
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(2) The defendant--
(a) is not a party to an application under
sub-section (1); and
(b) may not cross-examine a witness
5 attending the Court under an order
made under sub-section (1); and
(c) may not address the Court on an
application under sub-section (1) or on
a proceeding held under an order made
10 on such an application.
(3) An order made under sub-section (1) must be
served on the person to whom it relates in
accordance with the Rules.
(4) Section 134(1) applies to a person ordered to
15 attend the Court under sub-section (1) as if
the person had been summoned as a witness
and had been given or tendered any conduct
money required to be given or tendered and
as if the order were a summons.
20 (5) The evidence of a witness under this section
must be--
(a) given on oath; and
(b) recorded in the same manner as
evidence at a committal proceeding.
25 (6) Nothing in this section excludes or limits the
operation of any other law as to the
competency or compellability of a witness to
give evidence.
56B. Nothing in Act affects certain powers of
30 DPP
Nothing in this Act affects the power of the
Director of Public Prosecutions--
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Act No.
(a) to make presentment of a person for an
offence if, on a committal proceeding
conducted in relation to a charge for
that offence, the Court ordered the
5 person to be discharged on the charge;
or
(b) to enter a nolle prosequi, or not to take
within the period prescribed under
section 353(2) of the Crimes Act 1958
10 any step mentioned in that section, in
relation to a charge on which a person
was committed for trial on a committal
proceeding.".
6. New section 142 inserted
15 After section 141 of the Principal Act insert--
"142. Rules of court--committal proceedings
(1) The Chief Magistrate together with 2 or
more Deputy Chief Magistrates may jointly
make rules of court for or with respect to--
20 (a) any matter relating to the practice and
procedure of the Court in committal
proceedings;
(b) without limiting paragraph (a), steps or
processes in the course of a committal
25 proceeding, the purpose or objective of
any such step or process, the
prescription of time limits in relation to
the taking of any such step or process
and the procedure applicable to that
30 step or process;
(c) forms to be used in committal
proceedings;
(d) the procedure to be followed on a
proceeding held under an order made
35 under section 56A;
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Act No.
(e) generally prescribing any other matter
or thing required or permitted by
Schedule 5 to be prescribed by rules of
court or necessary to be prescribed by
5 rules of court to give effect to that
Schedule.
(2) In exercising a power conferred by sub-
section (1) to make rules, the Chief
Magistrate and the Deputy Chief Magistrates
10 must have regard to the interests of the
community in ensuring the prompt and
efficient disposal of criminal proceedings.
(3) A power conferred by sub-section (1) to
make rules may be exercised--
15 (a) either in relation to all cases to which
the power extends, or in relation to all
those cases subject to specified
exceptions, or in relation to any
specified case or class of case; and
20 (b) so as to make, as respects the cases in
relation to which it is exercised--
(i) the same provision for all cases in
relation to which the power is
exercised, or different provisions
25 for different cases or classes of
case, or different provisions for
the same case or class of case for
different purposes; or
(ii) any such provision either
30 unconditionally or subject to any
specified condition.
(4) Rules made under sub-section (1) may be
made--
(a) so as to require a matter affected by the
35 rules to be approved by or to the
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s. 7
Act No.
satisfaction of a specified court official
or a specified class of court official;
and
(b) so as to confer a discretionary authority
5 or impose a duty on a specified person
or a specified class of person; and
(c) so as to provide in a specified case or
class of case for the exemption of
committal proceedings or a class of
10 committal proceeding from any of the
provisions of the rules, whether
unconditionally or on specified
conditions and either wholly or to such
an extent as is specified.
15 (5) A rule made under sub-section (1) must not
be inconsistent with a provision of this Act
or the regulations, whether the provision was
made before or after the making of the rule,
and a rule is (to the extent of the
20 inconsistency) of no force or effect.".
7. Transitional provisions
At the end of Schedule 8 to the Principal Act
insert--
"20. (1) Schedule 5, as substituted by section 4 of the
25 Magistrates' Court (Amendment) Act 1998 applies
only with respect to the hearing of charges filed after
the commencement of that section.
(2) Schedule 5, as in force immediately before the
commencement of section 4 of the Magistrates'
30 Court (Amendment) Act 1998, continues to apply,
despite its repeal, with respect to the hearing of
charges filed before that commencement.
(3) Any amendment of this Act made by a provision of
Part 2 of the Magistrates' Court (Amendment) Act
25
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Magistrates' Court (Amendment) Act 1998
s. 8
Act No.
1998 does not alter the nature of a committal
proceeding from that existing immediately before the
commencement of that provision.".
8. Consequential amendments
5 (1) In section 3(1) of the Principal Act, for the
definition of "committal mention date"
substitute--
' "committal mention date" has the meaning
given in clause 1(1) of Schedule 5;'.
10 (2) In section 56(3) of the Principal Act, for "clause
1(1) of Schedule 5" substitute "clause 6 of
Schedule 5 or the plea brief referred to in clause 5
of that Schedule".
(3) In section 56(8) of the Principal Act, for "with
15 respect to which no notice under clause 3(2) of
that Schedule had been given" substitute "at
which no witness was required to attend".
(4) In Schedule 8 to the Principal Act, clauses 14, 15
and 18 are repealed.
20 (5) In section 413 of the Crimes Act 1958, for
"clause 1" substitute "clause 6(1)".
(6) In section 42K(1)(c) of the Evidence Act 1958,
for "status hearing" substitute "special mention
hearing".
25 _______________
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s. 9
Act No.
PART 3--APPEALS
9. Powers of County Court on appeal
(1) In section 86 of the Principal Act, after sub-
section (1) insert--
5 "(1AA) Despite any rule of law or practice to the
contrary, the County Court is not required,
on the hearing of an appeal under section 83,
to warn the appellant before making a
sentencing order of the possibility of a
10 sentencing order being made, or of its
intention to make a sentencing order, that is
more severe than that made by the
Magistrates' Court.".
(2) In section 86(3) of the Principal Act, paragraph
15 (a) is repealed.
(3) In section 86 of the Principal Act, after sub-
section (3) insert--
"(3A) If an appellant fails to appear at the time
listed for the hearing of the appeal, the
20 County Court may--
(a) proceed to hear and determine the
appeal in the appellant's absence
without prejudice, if the appellant has
been released on bail under clause 4 of
25 Schedule 6, to any right of action
arising out of the breach of the bail
undertaking; or
(b) strike out the appeal; or
(c) adjourn the proceeding on any terms
30 that it thinks fit.
(3B) If the County Court proceeds under sub-
section (3A)(a) to hear and determine an
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s. 10
Act No.
appeal in the appellant's absence, it may do
so on the basis of--
(a) any statement, or exhibit or document
referred to in a statement, a copy of
5 which was served on the appellant in a
brief of evidence in accordance with
section 37; or
(b) evidence on oath given by or on behalf
of the respondent.
10 (3C) The County Court may rule as inadmissible
the whole or any part of a statement or of
any exhibit or document referred to in a
statement.".
(4) In section 86(4) of the Principal Act, after "(3)"
15 insert "or (3A)(b)".
10. Removal of restriction on County Court powers on
certain appeals
Section 87 of the Principal Act is repealed.
11. New section 88AA inserted
20 After section 88 of the Principal Act insert--
"88AA. Costs powers of County Court on appeal
(1) If an appeal under section 83 is struck out or
dismissed, the County Court may order the
appellant to pay all or a specified portion of
25 the respondent's costs of the appeal if
satisfied that the appeal was brought
vexatiously or frivolously or in abuse of
process.
(2) Nothing in sub-section (1) limits any
30 discretion as to costs of an appeal conferred
on the County Court by any other provision
of this Act or the County Court Act 1958.".
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s. 12
Act No.
12. New section 89A inserted
After section 89 of the Principal Act insert--
"89A. Re-hearing where County Court hears
appeal in appellant's absence
5 (1) If the County Court hears and determines an
appeal under section 86(3A)(a) in the
appellant's absence, the appellant may,
within 30 days after being notified in writing
of the determination of the appeal, apply to
10 the County Court for an order that any order
made under section 86(1) be set aside and
that the appeal be re-heard.
(2) An appellant may apply under sub-section
(1) after the end of the period of 30 days
15 referred to in that sub-section with the leave
of the County Court granted on an
application by the appellant under this sub-
section.
(3) The County Court may only grant leave on
20 an application under sub-section (2) if--
(a) it is of the opinion that the failure to
apply under sub-section (1) within the
period referred to in that sub-section
was due to exceptional circumstances;
25 and
(b) it is satisfied that the respondent's case
would not be materially prejudiced
because of the delay.
(4) An application under sub-section (1) must--
30 (a) state why the appellant did not appear
at the hearing of the appeal; and
(b) be filed with the registrar of the County
Court and a copy of it served on the
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s. 13
Act No.
respondent in the same way as a notice
of appeal.
(5) If the County Court grants an application
under sub-section (1)--
5 (a) it must set aside any order made under
section 86(1) and order the
reinstatement of--
(i) the order of the Magistrates'
Court; and
10 (ii) the appeal--
subject to the payment of any costs that
it thinks fit; and
(b) it may require the appellant to give a
further undertaking to prosecute the
15 appeal; and
(c) clause 3 of Schedule 6 applies to the
sentencing order appealed against as if
the granting of the application were the
filing of the notice of appeal.
20 (6) The County Court may only grant an
application under sub-section (1) if satisfied
that the failure to appear was not due to fault
or neglect on the part of the appellant.".
13. Appellant to be informed that sentence may be
25 increased
In clause 1 of Schedule 6 to the Principal Act,
after sub-clause (4) insert--
"(4A) A notice of appeal under section 83 must include a
statement in the form approved by the Chief Judge of
30 the County Court signed by the appellant to the effect
that the appellant is aware that on the appeal the
County Court may make a sentencing order more
severe than that sought to be appealed against.
(4B) Before accepting receipt of a notice of appeal under
35 section 83 a registrar of the Magistrates' Court must--
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Act No.
(a) give to the person seeking to file the notice of
appeal a notice in the form approved by the
Chief Judge of the County Court to the effect
that on the appeal the County Court may make a
5 sentencing order more severe than that sought to
be appealed against; and
(b) if the person seeking to file the notice of appeal
is not the proposed appellant, be satisfied that
the proposed appellant has signed the statement
10 required to be included in the notice of appeal
by sub-clause (4A).".
14. Abandonment of appeal
(1) In clause 6(1) and (2) of Schedule 6 to the
Principal Act, after "appellant may" insert
15 ", subject to sub-clause (2A),".
(2) In clause 6 of Schedule 6 to the Principal Act,
after sub-clause (2) insert--
"(2A) After the end of the period referred to in clause 1(1),
an appellant may only abandon an appeal against a
20 sentencing order with the leave of the County Court
granted on an application by the appellant under this
sub-clause.
(2B) An application may be made under sub-clause (2A) at
any time before or after the County Court commences
25 to hear the appeal and, if the County Court grants
such an application after commencing to hear the
appeal, it must order the reinstatement of the order of
the Magistrates' Court.
(2C) The County Court may only grant leave on an
30 application under sub-clause (2A) if it is satisfied that
it is in the interests of justice to do so because of the
existence of exceptional circumstances.".
15. Appeal against aggregate sentence
In Schedule 6 to the Principal Act, at the end of
35 clause 9 insert--
"(2) On sentencing an appellant where the sentencing
order appealed against is of a kind referred to in sub-
clause (1), the County Court may rely on any agreed
statement of facts (however derived) relevant to any
31
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s. 16
Act No.
charge contained in the original charge sheet or
charge sheets.".
16. Transitional provisions
At the end of Schedule 8 to the Principal Act
5 insert--
"21. (1) The amendments of this Act made by sections 9, 13
and 14 of the Magistrates' Court (Amendment) Act
1998 apply only with respect to appeals to the County
Court where notice of appeal is given on or after
10 1 July 1999.
(2) The repeal of section 87 effected by section 10 of the
Magistrates' Court (Amendment) Act 1998 does
not affect an appeal to the County Court where the
notice of appeal was given before 1 July 1999.
15 (3) Section 88AA, as inserted by section 11 of the
Magistrates' Court (Amendment) Act 1998, applies
only with respect to appeals to the County Court
where notice of appeal is given on or after 1 July
1999.".
20 17. Appeals under Children and Young Persons Act 1989
No. 56/1989. (1) In section 197(5) of the Children and Young
Reprint No. 5
Persons Act 1989--
as at 1 July
1998. Further
(a) for "87" substitute "89A";
amended by
Nos 69/1992
(b) after "Schedule 6" insert "(except clauses
(as amended
25 by No. 1(4A) and (4B), 6(2A) to (2C) and 9(2))";
19/1994).
(c) after paragraph (b) insert--
"(ba) section 86 had not been amended by
section 9 of the Magistrates' Court
(Amendment) Act 1998; and".
30 (2) In Schedule 3 to the Children and Young
Persons Act 1989, after clause 23 insert--
"24. Section 88AA of the Magistrates' Court Act 1989,
as applying to an appeal under section 197 of this Act
by force of Part 3 of the Magistrates' Court
35 (Amendment) Act 1998, applies only with respect to
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s. 18
Act No.
appeals where the notice of appeal is given on or after
1 July 1999.".
18. Time held in custody pending appeal
No. 49/1991.
(1) In section 18(1) of the Sentencing Act 1991, after
Reprint No. 4
5 "those proceedings" insert "(including a period as at 1 July
pending the determination of an appeal)". 1998.
(2) In section 18 of the Sentencing Act 1991, after
sub-section (1) insert--
"(1A) The Court of Appeal, on dismissing an
10 appeal under Part VI of the Crimes Act
1958, may direct that the whole or any part
of the period of time during which the
appellant was held in custody between
giving notice of the appeal or of the
15 application for leave to appeal and the
determination of the appeal is not to be
reckoned as a period of imprisonment or
detention already served under the sentence.
(1B) The Court of Appeal cannot direct under
20 sub-section (1A) that more than 3 months of
a period of custody is not to be reckoned as a
period of imprisonment or detention already
served under the sentence.".
(3) In section 18(2) of the Sentencing Act 1991, after
25 paragraph (c) insert--
"(ca) to a period of custody that is the subject of a
direction given by the Court of Appeal under
sub-section (1A); or".
No. 6231.
(4) In section 579(3) of the Crimes Act 1958--
Reprint No. 14
30 (a) omit "and subject to any directions which as at 1 July
1998.
the Court of Appeal may give to the contrary
on any appeal, the time during which the
appellant if in custody is specially treated as
an appellant under this section";
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s. 19
Act No.
(b) omit the expression beginning "And in the
case of an appeal" and ending at the end of
the sub-section.
19. New section 120 inserted in Sentencing Act 1991
5 After section 119 of the Sentencing Act 1991
insert--
"120. Transitional provisions--Magistrates'
Court (Amendment) Act 1998
The amendments of this Act made by section
10 18 of the Magistrates' Court (Amendment)
Act 1998 apply only in relation to appeals to
the Court of Appeal for which the notice of
appeal or notice of application for leave to
appeal is given on or after 1 July 1999.".
15 20. New section 591 inserted in Crimes Act 1958
After section 590 of the Crimes Act 1958
insert--
"591. Transitional provisions--Magistrates'
Court (Amendment) Act 1998
20 The amendments of this Act made by section
18(4) of the Magistrates' Court
(Amendment) Act 1998 apply only in
relation to appeals to the Court of Appeal for
which the notice of appeal or notice of
25 application for leave to appeal is given on or
after 1 July 1999.".
_______________
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Magistrates' Court (Amendment) Act 1998
s. 21
Act No.
PART 4--MISCELLANEOUS
21. New section 13B inserted in Principal Act
After section 13A of the Principal Act insert--
"13B. Development and training of magistrates
5 and registrars
The Chief Magistrate is responsible for
directing the professional development and
training of magistrates, the principal
registrar, registrars and deputy registrars.".
10 22. Rules with respect to service outside Australia
In section 16(1) of the Principal Act, after
paragraph (e) insert--
"(ea) the service of documents in civil
proceedings, including service outside
15 Australia;".
23. Requirements for appointment as registrar
In section 17 of the Principal Act, after sub-
section (1) insert--
"(1A) The Chief Magistrate may, by notice given
20 to the Secretary, specify qualifications
(including training, skill and experience)
required to be held, or examinations in
specified subjects required to be passed, by
any person seeking to be employed under
25 Part 3 of the Public Sector Management
and Employment Act 1998 as a registrar or
deputy registrar.
(1B) The Secretary, in exercising a power to
employ a person under Part 3 of the Public
30 Sector Management and Employment Act
1998 as a registrar or deputy registrar, shall
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s. 24
Act No.
have regard to any notice given by the Chief
Magistrate under sub-section (1A).".
24. Power of Magistrates' Court to restrain publication,
etc.
5 (1) In section 126(2) of the Principal Act, at the end
of paragraph (c) insert--
"; or
(d) make an order prohibiting the publication of
any specified material, or any material of a
10 specified kind, relevant to a proceeding that
is pending in the Court.".
(2) In section 126 of the Principal Act, at the end of
the section insert--
"(5) The Court must specify a period (not
15 exceeding 7 days) for which an order made
under sub-section (2)(d) is to remain in force
and the order shall remain in force for that
period unless it is sooner set aside by the
Court.
20 (6) The Court may set aside or vary an order
made under sub-section (2)(d) on an
application made by any person, whether or
not a party to the proceeding pending in the
Court, but cannot extend the period of the
25 order to more than 7 days or make another
order under sub-section (2)(d) that would
have the effect of an order in the same terms
being in force for more than 7 days.
(7) Nothing in sub-section (6) prevents the
30 Supreme Court or the County Court, in the
exercise of any jurisdiction, power or
authority to do so conferred on it, making an
order to the same or a similar effect as an
order under sub-section (2)(d), including an
35 order that has effect from immediately an
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Magistrates' Court (Amendment) Act 1998
s. 25
Act No.
order under sub-section (2)(d) ceases to be in
force.".
(3) In Schedule 8 to the Principal Act, after clause 18
insert--
5 "19. The amendments of section 126 of this Act made by
section 24(1) and (2) of the Magistrates' Court
(Amendment) Act 1998 apply to proceedings,
whether commenced before or after the
commencement of that section of that Act.".
10 25. Circumstances in which Supreme Court may be
closed
No. 110/1986.
In section 19 of the Supreme Court Act 1986, at
Reprint No. 3
the end of paragraph (e) insert-- as at 1 August
1998.
"; or
15 (f) cause undue distress or embarrassment to a
witness under examination in a proceeding
of any kind relating to a charge for an
offence where the conduct constituting the
offence consists wholly or partly of taking
20 part, or attempting to take part, in an act of
sexual penetration as defined in section 35 of
the Crimes Act 1958.".
26. New section 139A inserted in Supreme Court Act
1986
25 In the Supreme Court Act 1986, after section
139 insert--
"139A. Transitional provision
The amendment of section 19 of this Act
made by section 25 of the Magistrates'
30 Court (Amendment) 1998 applies to
proceedings, whether commenced before or
after the commencement of that section of
that Act.".
37
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Magistrates' Court (Amendment) Act 1998
s. 27
Act No.
27. Injunctive power of County Court in criminal
proceedings
No. 6230. In section 36A of the County Court Act 1958,
Reprint No. 9
after sub-section (2) insert--
as at 1 August
1998.
5 "(3) The court has the same jurisdiction, and may
exercise the same powers and authority, to
grant an injunction in a criminal proceeding
restraining a person from publishing any
material or doing any other thing to ensure
10 the fair and proper conduct of the proceeding
as the Supreme Court has and may exercise
in respect of a criminal proceeding in the
Supreme Court.
(4) The power of the court referred to in sub-
15 section (3) is exercisable by making an
order, whether interlocutory or final, either
unconditionally or on such terms and
conditions as the court thinks just.
(5) Nothing in sub-section (3) limits sub-section
20 (2) or section 54 or 80.".
28. New sections 80 and 80AA substituted in County
Court Act 1958
(1) For section 80 of the County Court Act 1958
substitute--
25 "80. Power to close proceedings to the public
(1) The court may in the circumstances
mentioned in section 80AA--
(a) order that the whole or any part of a
proceeding be heard in closed court; or
30 (b) order that only persons or classes of
persons specified by it may be present
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Magistrates' Court (Amendment) Act 1998
s. 28
Act No.
during the whole or any part of a
proceeding; or
(c) make an order prohibiting the
publication of a report of the whole or
5 any part of a proceeding or of any
information derived from a proceeding.
(2) This section applies to any proceeding,
whether civil or criminal.
(3) If an order has been made under this section
10 the court must cause a copy of it to be posted
on a door of the court house or in another
conspicuous place where notices are usually
posted at the court house.
(4) A person must not contravene an order made
15 and posted under this section.
Penalty: 1000 penalty units or
imprisonment for 3 months.
80AA. Circumstances in which order may be made
under section 80
20 The court may make an order under section
80 if in its opinion it is necessary to do so in
order not to--
(a) endanger the national or international
security of Australia; or
25 (b) prejudice the administration of justice;
or
(c) endanger the physical safety of any
person; or
(d) offend public decency or morality; or
30 (e) cause undue distress or embarrassment
to the complainant in a proceeding that
relates to a charge for an offence under
Subdivision (8A), (8B), (8C), (8D) or
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Magistrates' Court (Amendment) Act 1998
s. 29
Act No.
(8E) of Division 1 of Part I of the
Crimes Act 1958 or under any
corresponding previous enactment or
for an attempt to commit any such
5 offence or an assault with intent to
commit any such offence; or
(f) cause undue distress or embarrassment
to a witness under examination in a
proceeding that relates to a charge for
10 an offence where the conduct
constituting the offence consists wholly
or partly of taking part, or attempting to
take part, in an act of sexual penetration
as defined in section 35 of the Crimes
15 Act 1958.".
(2) Section 81 of the County Court Act 1958 is
repealed.
29. New section 89 inserted in County Court Act 1958
In the County Court Act 1958, after section 88
20 insert--
"89. Transitional provisions
The amendments of this Act made by
sections 27 and 28 of the Magistrates'
Court (Amendment) 1998 apply to
25 proceedings, whether commenced before or
after the commencement of those sections.".
30. Penalties on breaching sentencing orders
In sections 18W(5), 26(3A), 31(5), 47(3A) and
79(4) of the Sentencing Act 1991, for "level 12
30 fine" substitute "level 10 fine".
31. Minor amendments
(1) In section 140 of the Principal Act, sub-sections
(4) and (5) are repealed.
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Magistrates' Court (Amendment) Act 1998
s. 31
Act No.
(2) In clause 2 of Schedule 7 to the Principal Act, in
the definition of "statutory rule" for "1962"
substitute "1994".
(3) In section 280 of the Children and Young
5 Persons Act 1989, sub-sections (3) and (4) are
repealed.
(4) In the Sentencing Act 1991--
(a) in section 68, sub-sections (2) and (3) are
repealed;
10 (b) in section 116(1), paragraph (a) is repealed;
(c) in section 116, sub-sections (3) and (4) are
repealed.
(5) In the Crimes Act 1958--
(a) in section 345 omit the expression beginning
15 "and any such regulation" and ending at the
end of the section;
(b) in section 353, for sub-section (4)
substitute--
"(4) A regulation made under sub-section
20 (2) or (3) is subject to disallowance by
a House of the Parliament.";
(c) in section 464ZJ, sub-sections (3) and (4) are
repealed;
(d) in section 464ZJ, for sub-section (5)
25 substitute--
"(5) If a regulation made under sub-section
(1) is disallowed by the Parliament or a
House of the Parliament, no regulation
which is the same in substance as the
30 disallowed regulation may be made
within 6 months after the date of the
disallowance, unless--
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Magistrates' Court (Amendment) Act 1998
s. 31
Act No.
(a) if the regulation was disallowed
by one House of the Parliament,
that House approves the making
of a regulation the same in
5 substance as the disallowed
regulation; or
(b) if the regulation was disallowed
by both Houses of the Parliament,
each House approves the making
10 of a regulation the same in
substance as the disallowed
regulation.".
(6) In section 78 of the County Court Act 1958, sub-
sections (6) and (7) are repealed.
15
42
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Magistrates' Court (Amendment) Act 1998
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
43
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Magistrates' Court (Amendment) Act 1998
Act No.
44
532121B.I1-27/10/98
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