Victorian Numbered Acts

CRIMINAL PROCEDURE ACT 2009 (NO. 7 OF 2009) - SECT 376

After Part 5.1 of the Children, Youth and Families Act 2005 insert —

" PART 5.1A—COMMENCEMENT OF PROCEEDINGS

        344A     Time limits for filing a charge

    (1)     A proceeding against a child for a summary offence must be commenced within 6 months after the date on which the offence is alleged to have been committed except where—

        (a)     the Court extends the time for commencement of the proceeding under section 344C; or

        (b)     the child, after receiving legal advice, gives written consent, and a member of the police force of or above the rank of sergeant consents, to the proceeding being commenced after the expiry of that period.

    (2)     A proceeding against a child for an indictable offence may be commenced at any time, except where otherwise provided by or under this or any other Act.

    (3)     If a proceeding for a summary offence is commenced against a child after the child has given consent under subsection (1)(b) in respect of the proceeding, the Court, on the first appearance of the child before the Court, must be satisfied that the child obtained legal advice before giving consent under subsection (1)(b).

    (4)     If the Court is not satisfied that the child obtained legal advice before giving consent under subsection (1)(b), it must—

        (a)     adjourn the hearing to enable the child to obtain that legal advice; and

        (b)     advise the child and, if present, a parent or guardian of the child that, after obtaining legal advice, the child may withdraw his or her consent to the commencement of the proceeding.

    (5)     After obtaining legal advice in the circumstances referred to in subsection (4)—

        (a)     a child; or

        (b)     if the child is under the age of 15 years and is not legally represented, a parent or guardian of the child—

may withdraw the consent given under subsection (1)(b).
s. 376

    (6)     If the child withdraws consent under subsection (5), the Court must strike out the charge.

    (7)     If the child is under the age of 15 years, the Court may adjourn any hearing referred to in this section, or a resumed hearing, to enable a parent or guardian of the child to attend.

        344B     Application for extension of time for commencement of proceeding

    (1)     An informant may apply to the Court for an extension of the period within which a proceeding against a child for a summary offence may be commenced.

    (2)     An application under subsection (1) may be made within 12 months after the date on which the summary offence is alleged to have been committed.

    (3)     Only one application may be made under this section.

    (4)     At least 14 days before the hearing of the application, the applicant must file in the Court and serve, in accordance with section 594, on the child—

        (a)     notice of the application signed by the applicant; and

        (b)     notice of the charge signed by the applicant.
s. 376

    (5)     An application must be supported by—

        (a)     oral sworn evidence; or

        (b)     affidavit; or

        (c)     a statement signed by the applicant and containing an acknowledgment signed by the applicant in the presence of an authorised person that the statement is true and correct and is made in the belief that a person making a false statement is liable to the penalties of perjury; or

        (d)     any other means that the Court considers appropriate.

        344C     Extension of time

    (1)     On the hearing of an application under section 344B, the Court may extend the period for commencing the proceeding to a date within 12 months after the date on which the summary offence is alleged to have been committed.

    (2)     In determining the application, the Court must have regard to—

        (a)     the age of the child; and

        (b)     the seriousness of the alleged offence and the circumstances in which it is alleged to have occurred; and

        (c)     whether the delay in commencing the proceeding was caused by factors beyond the control of the applicant; and

        (d)     the length of the delay; and

        (e)     any other matter that the Court considers relevant.
s. 376

    (3)     The child is entitled to appear at the hearing of the application and address the Court but if the child does not appear, the Court may proceed to hear and determine the application in his or her absence.

    (4)     If the Court extends the period for commencing the proceeding, the informant must file the charge-sheet without delay.

    (5)     On the filing of the charge-sheet—

        (a)     if the child is present before the Court and ready to proceed, the Court may hear and determine the charge; or

        (b)     if the child is not present before the Court, the informant must serve, in accordance with section 594, on the child notice of the Court's determination.

        344D     Rehearing

    (1)     If an application under section 344B is heard and determined in the absence of the child, the child may apply to the Court for an order that the determination be set aside and that the application be reheard.

    (2)     On an application for a rehearing, the Court may set aside the order made under section 344C(1) if it considers it appropriate to do so and rehear the application.

    (3)     A notice of intention to apply for a rehearing must—

        (a)     state the reason why the child did not appear at the hearing; and

        (b)     be filed with the registrar at the venue of the Court at which the order was made.

    (4)     The applicant must serve, in accordance with section 593, on the respondent a copy of the notice and may serve it on the day on which the charge is listed for hearing.".