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PARLIAMENT OF VICTORIA
Criminal Procedure Amendment (Double Jeopardy
and Other Matters) Bill 2011
TABLE OF PROVISIONS
Clause Page
1 Purposes 1
2 Commencement 2
3 Definitions 3
4 Contents of preliminary brief 3
5 Contents of full brief 3
6 Mention hearing 4
53A Documents to be provided by police at first mention
hearing 4
7 Chapter 3--Criminal record 5
8 Chapter 3--Proof of previous convictions by criminal record 6
9 Admissibility of evidence in absence of accused where full
brief served 6
10 Admissibility of evidence in absence of accused where
preliminary brief served 6
11 Proof of criminal record in absence of accused 7
12 Informant must serve hand-up brief 7
13 Note inserted 7
14 Plea of previous acquittal 7
15 Chapter 5--Criminal record 7
16 Chapter 5--Proof of previous convictions by criminal record 8
17 New Chapter 7A inserted 9
CHAPTER 7A--LIMITATIONS ON RULES RELATING
TO DOUBLE JEOPARDY 9
327A Application of Chapter 9
327B Definitions 9
327C Meaning of fresh and compelling evidence 10
327D Meaning of tainted acquittal 11
327E Circumstances in which police may reinvestigate
offence after acquittal 11
327F DPP may file indictment 14
327G Bail following filing of direct indictment 15
327H DPP may apply to Court of Appeal 15
327I Extension of time for filing or serving notice of
application 16
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Clause Page
327J DPP may apply only once in relation to particular
acquittal 17
327K DPP must discontinue prosecution if fails to make
application 17
327L Determination of application where acquittal tainted 18
327M Determination of application where fresh and
compelling evidence 18
327N Determination of application where administration of
justice offence 21
327O Orders on determination of application 21
327P DPP must elect which offence to prosecute 23
327Q Amendment of indictment 23
327R Prohibition on making certain references in new trial 23
327S Appeal and review rights unaffected 24
18 New section 441 inserted 24
441 Transitional provisions--Criminal Procedure
Amendment (Double Jeopardy and Other Matters)
Act 2011 24
19 Schedule 1 amended 25
14 Additional information to be included on indictment
charging offence to which Chapter 7A applies 25
20 Amendment of Public Prosecutions Act 1994 25
21 Amendment of Appeal Costs Act 1998 26
17A Application for indemnity certificate if DPP applies
for continuation of prosecution of person previously
acquitted 26
22 Statute law revision amendments 27
23 Repeal of amending Act 28
ENDNOTES 29
571091B.I-8/11/2011 ii BILL LA INTRODUCTION 8/11/2011
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Criminal Procedure Amendment
(Double Jeopardy and Other Matters)
Bill 2011
A Bill for an Act to amend the Criminal Procedure Act 2009, the
Public Prosecutions Act 1994 and the Appeal Costs Act 1998 and
for other purposes.
The Parliament of Victoria enacts:
1 Purposes
The purposes of this Act are--
(a) to amend the Criminal Procedure Act
2009--
5 (i) to provide exceptions to the rule against
double jeopardy that would permit a
person to be tried or re-tried in certain
circumstances despite a previous
acquittal; and
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s. 2
(ii) to amend the pre-hearing disclosure
requirements before a summary
hearing; and
(iii) to amend the contents of a criminal
5 record to include offences specified in
infringement notices that have taken
effect as convictions; and
(b) to amend the Public Prosecutions Act 1994
in relation to the functions of the Director of
10 Public Prosecutions; and
(c) to amend the Appeal Costs Act 1998 to
provide for indemnity certificates where the
Director of Public Prosecutions applies to
continue a prosecution after a previous
15 acquittal; and
(d) to make minor amendments of a statute law
revision nature.
2 Commencement
(1) Section 1, section 22(1), (2), (3) and (4) and this
20 section come into operation on the day on which
this Act receives the Royal Assent.
(2) Section 22(5) is taken to have come into operation
on 12 October 2010.
(3) Section 22(6) is taken to have come into operation
25 on 27 April 2010.
(4) Section 22(7) is taken to have come into operation
on 21 June 2011.
(5) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
30 (6) If a provision of this Act referred to in subsection
(5) does not come into operation before 1 July
2012, it comes into operation on that day.
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3 Definitions
(1) In section 3 of the Criminal Procedure Act 2009, See:
Act No.
in the definition of criminal record, in 7/2009.
paragraph (a), after "previous convictions" insert Reprint No. 1
as at
5 "and infringement convictions". 1 January
2010
(2) In section 3 of the Criminal Procedure Act 2009, and
amending
in the definition of direct indictment-- Act Nos
7/2009,
(a) at the end of paragraph (b)(ii) insert "or"; 13/2009 (as
amended by
(b) after paragraph (b)(ii) insert-- No. 68/2009),
6/2010 (as
10 "(iii) resulted in an acquittal within the amended by
No. 45/2010),
meaning of Chapter 7A and the 30/2010,
prosecution of the offence charged in 34/2010,
63/2010,
the indictment may only proceed if the 65/2010,
Court of Appeal gives authorisation 70/2010 and
15 under section 327O;". 29/2011.
LawToday:
www.
(3) In section 3 of the Criminal Procedure Act 2009 legislation.
insert the following definition-- vic.gov.au
"infringement conviction means an infringement
notice that has taken effect as a conviction of
20 the offence specified in the notice;".
4 Contents of preliminary brief
In section 37(1)(e) of the Criminal Procedure
Act 2009, after "previous convictions" insert
"or infringement convictions".
25 5 Contents of full brief
In section 41(1)(c) of the Criminal Procedure
Act 2009, after "previous convictions" insert
"or infringement convictions".
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6 Mention hearing
After section 53 of the Criminal Procedure Act
2009 insert--
"53A Documents to be provided by police at
5 first mention hearing
(1) This section applies if the informant is a
member of the police force.
(2) At the first mention hearing, the informant
must have the following documents available
10 for provision to the accused or the legal
practitioner representing the accused--
(a) a copy of the preliminary brief (if
prepared);
(b) a copy of the full brief (if prepared);
15 (c) if neither a preliminary brief nor a full
brief has been prepared--
(i) a copy of the charge-sheet in
respect of the alleged offence; and
(ii) a statement of the alleged facts on
20 which the charge is based; and
(iii) either--
(A) a copy of the criminal record
of the accused that is
available at the time of the
25 first mention hearing; or
(B) a statement that the accused
has no previous convictions
or infringement convictions
known at that time.
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(3) This section does not apply to a proceeding
for--
(a) an offence under the Road Safety Act
1986 or regulations or rules under that
5 Act that is detected by a road safety
camera, a speed detector or a process
prescribed for the purposes of that Act;
or
(b) an offence under the Melbourne City
10 Link Act 1995 that is detected by a
tolling device or a process prescribed
for the purposes of Part 4 of that Act; or
(c) an offence under the EastLink Project
Act 2004 that is detected by a tolling
15 device or a process prescribed for the
purposes of Part 9 of that Act.".
7 Chapter 3--Criminal record
(1) At the foot of section 77(1) of the Criminal
Procedure Act 2009 insert--
20 "Note
Previous conviction is defined by section 3 to refer only to a
conviction or finding of guilt made by a court and does not
include an infringement conviction.".
(2) After section 77(2) of the Criminal Procedure
25 Act 2009 insert--
"(2A) A criminal record must contain, in relation to
each infringement conviction--
(a) the date on which the infringement
notice took effect as a conviction; and
30 (b) the offence specified in the notice; and
(c) the amount specified in the notice as
the penalty for the infringement; and
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(d) any other penalty that results from the
operation of the notice.
Example
A period of cancellation, disqualification or
5 suspension of a licence or permit.".
8 Chapter 3--Proof of previous convictions by
criminal record
(1) In the heading to section 78 of the Criminal
Procedure Act 2009, after "previous
10 convictions" insert "and infringement
convictions".
(2) In section 78(2) of the Criminal Procedure Act
2009, after "previous convictions" insert "and
infringement convictions".
15 (3) In section 78(3) of the Criminal Procedure Act
2009, after "previous conviction" insert "or
infringement conviction".
(4) In section 78(4) of the Criminal Procedure Act
2009, after "previous conviction" (where twice
20 occurring) insert "or infringement conviction".
(5) In section 78(5) of the Criminal Procedure Act
2009, after "previous conviction" insert "or
infringement conviction".
9 Admissibility of evidence in absence of accused
25 where full brief served
In section 83(3) of the Criminal Procedure Act
2009, after "previous convictions" insert
"or infringement convictions".
10 Admissibility of evidence in absence of accused
30 where preliminary brief served
In section 84(5) of the Criminal Procedure Act
2009, after "previous convictions" insert "or
infringement convictions".
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11 Proof of criminal record in absence of accused
(1) In section 86(1)(b) of the Criminal Procedure
Act 2009, after "previous convictions" insert
"or infringement convictions".
5 (2) In section 86(2)(c) of the Criminal Procedure
Act 2009, after "previous convictions" insert
"and infringement convictions".
12 Informant must serve hand-up brief
In section 107(3) of the Criminal Procedure Act
10 2009, after "previous convictions" insert
"or infringement convictions".
13 Note inserted
At the foot of section 165 of the Criminal
Procedure Act 2009 insert--
15 "Note
Section 327Q provides a limitation on amendments in the
case of direct indictments under Chapter 7A.".
14 Plea of previous acquittal
In section 220(3) of the Criminal Procedure Act
20 2009, for "The rules" substitute "Subject to
Chapter 7A, the rules".
15 Chapter 5--Criminal record
(1) At the foot of section 244(1) of the Criminal
Procedure Act 2009 insert--
25 "Note
Previous conviction is defined by section 3 to refer only to a
conviction or finding of guilt made by a court and does not
include an infringement conviction.".
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(2) After section 244(2) of the Criminal Procedure
Act 2009 insert--
"(2A) A criminal record must contain, in relation to
an infringement conviction--
5 (a) the date on which the infringement
notice took effect as a conviction; and
(b) the offence specified in the notice; and
(c) the amount specified in the notice as
the penalty for the infringement; and
10 (d) any other penalty that results from the
operation of the notice.
Example
A period of cancellation, disqualification or
suspension of a licence or permit.".
15 16 Chapter 5--Proof of previous convictions by
criminal record
(1) In the heading to section 245 of the Criminal
Procedure Act 2009, after "previous
convictions" insert "and infringement
20 convictions".
(2) In section 245(1) of the Criminal Procedure Act
2009, after "previous convictions" insert "or
infringement convictions".
(3) In section 245(3) of the Criminal Procedure Act
25 2009, after "previous convictions" insert "and
infringement convictions".
(4) In section 245(4) of the Criminal Procedure Act
2009, after "previous convictions" insert "or
infringement convictions".
30 (5) In section 245(5) of the Criminal Procedure Act
2009, after "previous conviction" insert "or
infringement conviction".
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(6) In section 245(6) of the Criminal Procedure Act
2009, after "previous conviction" (where twice
occurring) insert "or infringement conviction".
17 New Chapter 7A inserted
5 After Chapter 7 of the Criminal Procedure Act
2009 insert--
"CHAPTER 7A--LIMITATIONS ON
RULES RELATING TO DOUBLE
JEOPARDY
10 327A Application of Chapter
(1) This Chapter extends to an acquittal in a
place outside Victoria if the law of that place
permits the acquitted person to be retried.
(2) Subject to subsection (3), this Chapter does
15 not apply if a person is acquitted of the
offence charged but is convicted of a lesser
offence arising out of the same set of
circumstances that gave rise to the charge.
(3) This Chapter applies in the circumstances set
20 out in subsection (2) if the acquittal was
tainted.
327B Definitions
In this Chapter--
acquittal includes--
25 (a) a verdict of not guilty (other than
a verdict of not guilty because of
mental impairment); and
(b) an entry of not guilty made on the
record on the direction of the trial
30 judge; and
(c) a judgment of acquittal entered by
the Court of Appeal on an appeal;
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administration of justice offence means--
(a) perjury or subornation of perjury;
or
(b) perverting, or attempting to
5 pervert, the course of justice or
conspiracy to pervert the course of
justice; or
(c) bribery of a public official, being
a judge of the County Court or the
10 Supreme Court; or
(d) a substantially similar offence
against the law of a place outside
Victoria corresponding to an
offence referred to in paragraph
15 (a), (b) or (c).
327C Meaning of fresh and compelling evidence
(1) For the purposes of this Chapter, evidence
relating to an offence of which a person is
acquitted is--
20 (a) fresh if--
(i) it was not adduced at the trial of
the offence; and
(ii) it could not, even with the
exercise of reasonable diligence,
25 have been adduced at the trial; and
(b) compelling if--
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the
30 context of the issues in dispute at
the trial of the offence.
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(2) Evidence that would be admissible on a new
trial under this Chapter is not precluded from
being fresh or compelling only because it
would not have been admissible in the earlier
5 trial of the offence that resulted in the
acquittal.
327D Meaning of tainted acquittal
For the purposes of this Chapter, if at the
trial of an offence a person is acquitted of the
10 offence, the acquittal will be tainted if--
(a) the person or another person has been
convicted (whether or not in Victoria)
of an administration of justice offence
in connection with the trial resulting in
15 the acquittal; and
(b) it is more likely than not that, had it not
been for the commission of the
administration of justice offence, the
person would have been convicted of
20 the firstmentioned offence at the trial.
327E Circumstances in which police may
reinvestigate offence after acquittal
(1) In this section--
an offence of which a person has previously
25 been acquitted includes--
(a) any other offence charged against
the person in the same indictment
as the charge for the offence of
which the person was acquitted;
30 and
(b) any other offence of which the
person could have been convicted
at the trial of the offence of which
the person was acquitted;
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reinvestigation, in relation to an offence of
which a person has previously been
acquitted, means--
(a) the questioning and search of the
5 person; or
(b) the conduct of a forensic
procedure on the person and the
taking of the person's fingerprints
in accordance with the Crimes
10 Act 1958; or
(c) the search of property or premises
owned or occupied by the person
and the seizure of any thing found
in or on the property or premises,
15 including any vehicle; or
(d) the use of surveillance devices in
accordance with the Surveillance
Devices Act 1999; or
(e) the doing of anything authorised
20 by a warrant issued under Part 2-5
of the Telecommunications
(Interception and Access) Act
1979 of the Commonwealth;
senior member means a member of the
25 police force of or above the rank of
superintendent.
(2) Subject to subsections (5), (6) and (7), a
member of the police force must not
conduct, or authorise the conduct of, a
30 reinvestigation of an offence of which a
person has previously been acquitted unless
the DPP has given written authorisation.
(3) Only the Chief Commissioner of Police, a
Deputy Commissioner or an Assistant
35 Commissioner may apply to the DPP for an
authorisation under subsection (2).
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(4) The DPP must not authorise a reinvestigation
referred to in subsection (2) unless--
(a) the DPP is satisfied that--
(i) there is, or as a result of the
5 reinvestigation there is likely to
be, sufficient new evidence of the
commission of the offence by a
person to warrant the conduct of
the reinvestigation; and
10 (ii) it is in the public interest for the
reinvestigation to proceed; and
(b) in the DPP's opinion, the previous
acquittal would not be a bar to the trial
of the person for an offence that may be
15 charged as a result of the
reinvestigation.
(5) A member of the police force may apply to a
senior member for written authorisation to
conduct, or authorise the conduct of, a
20 reinvestigation referred to in subsection (2) if
the applicant reasonably believes that--
(a) urgent action is required to prevent the
reinvestigation being substantially and
irrevocably prejudiced; and
25 (b) it is not reasonably practicable in the
circumstances to obtain the DPP's
authorisation before taking the action.
(6) On an application under subsection (5), a
senior member may give written
30 authorisation for a reinvestigation referred to
in subsection (2) if the senior member
reasonably believes that--
(a) urgent action is required to prevent the
reinvestigation being substantially and
35 irrevocably prejudiced; and
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(b) it is not reasonably practicable in the
circumstances to obtain the DPP's
authorisation before taking the action.
(7) A member of the police force may conduct,
5 or authorise the conduct of, a reinvestigation
referred to in subsection (2) without the
written authorisation of the DPP or a senior
member if the member reasonably believes
that--
10 (a) urgent action is required to prevent the
reinvestigation being substantially and
irrevocably prejudiced; and
(b) it is not reasonably practicable in the
circumstances to obtain the
15 authorisation of the DPP or a senior
member before taking the action.
(8) The DPP must be informed as soon as
practicable of--
(a) an authorisation given under subsection
20 (6) and the action, if any, taken under
the authorisation; or
(b) any action taken under subsection (7)--
and the reinvestigation must not proceed
further without the DPP's written
25 authorisation.
(9) The DPP may, by instrument, delegate any
function or power of the DPP under this
section (other than this power of delegation)
to the Chief Crown Prosecutor or a Senior
30 Crown Prosecutor appointed under the
Public Prosecutions Act 1994.
327F DPP may file indictment
(1) The DPP may file a direct indictment (in
accordance with Chapter 5) charging an
35 offence the prosecution of which may only
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proceed if the Court of Appeal gives
authorisation under section 327O.
(2) Any circumstances referred to in section
327M(2)--
5 (a) need not be specified in a charge for an
offence referred to in that subsection;
and
(b) are not elements of the offence.
327G Bail following filing of direct indictment
10 If an accused is in custody following the
filing of a direct indictment under this
Chapter, it is to be presumed that the accused
is to be released on bail, regardless of the
offence charged, pending determination of
15 the DPP's application under section 327H or
discontinuance of the prosecution under
section 327K.
Note
Sections 331(2) and 411(4) provide further for bail.
20 327H DPP may apply to Court of Appeal
(1) The DPP may apply to the Court of Appeal
for an order--
(a) setting aside the previous acquittal of
the accused or removing the previous
25 acquittal as a bar to the accused being
tried on the direct indictment (as the
case requires); and
(b) authorising the continuation of the
prosecution of the charge in the
30 indictment.
(2) An application must specify whether it is
based on--
(a) a tainted acquittal; or
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(b) fresh and compelling evidence; or
(c) an administration of justice offence.
(3) An application based on fresh and
compelling evidence cannot be made in
5 relation to an acquittal resulting from a new
trial authorised under this Chapter.
(4) An application under subsection (1) is
commenced by filing a notice of application
in accordance with the rules of court within
10 28 days after the day on which a direct
indictment is filed under section 327F.
(5) A notice of application under subsection (4)
must be signed by the DPP personally.
(6) A copy of the notice of application must be
15 served personally on the accused in
accordance with section 391 within 7 days
after the day on which the notice of
application is filed.
(7) The DPP must provide a copy of the notice
20 of application to the legal practitioner who
last represented the accused in the criminal
proceeding which resulted in the previous
acquittal, if that legal practitioner can
reasonably be identified.
25 (8) An accused is entitled to appear at the
hearing of an application under this section
and may be represented by a legal
practitioner.
327I Extension of time for filing or serving
30 notice of application
(1) The Court of Appeal or, in accordance with
the rules of court, the Registrar of Criminal
Appeals of the Supreme Court at any time
may extend the time within which--
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(a) a notice of application under section
327H may be filed; or
(b) a notice referred to in paragraph (a)
may be served--
5 if the court or Registrar considers that it is in
the interests of justice to do so.
(2) The power of the Court of Appeal to extend
time under this section may be exercised by
a single Judge of Appeal in the same manner
10 as it may be exercised by the Court of
Appeal.
(3) If a Judge of Appeal or the Registrar of
Criminal Appeals of the Supreme Court
refuses an application to extend time under
15 subsection (1), the DPP is entitled to have
the Court of Appeal determine the
application.
327J DPP may apply only once in relation to
particular acquittal
20 The DPP may make an application to the
Court of Appeal under section 327H only
once in relation to a particular acquittal.
327K DPP must discontinue prosecution if fails
to make application
25 If the DPP fails to make an application under
section 327H within 28 days after filing a
direct indictment under section 327F, or any
extension of that period granted under
section 327I, the DPP must discontinue the
30 prosecution (in accordance with Part 5.4)
within 14 days after the expiry of the 28 days
or the extension (as the case requires).
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327L Determination of application where
acquittal tainted
On an application under section 327H, the
Court of Appeal may make any order
5 referred to in section 327O in relation to a
person who has been acquitted of an offence
if the court is satisfied that--
(a) at the time the offence is alleged to
have been committed, the offence was
10 punishable by level 4 imprisonment
(15 years maximum) or more (however
the penalty is described); and
(b) the acquittal was tainted; and
(c) it is likely that a new trial for that
15 offence would be fair, having regard
to--
(i) the length of time since the
offence is alleged to have been
committed; and
20 (ii) whether there has been a failure
on the part of the police or the
prosecution to act with reasonable
diligence or expedition with
respect to the making of the
25 application; and
(iii) any other matter that the court
considers relevant.
327M Determination of application where fresh
and compelling evidence
30 (1) On an application under section 327H, the
Court of Appeal may make any order
referred to in section 327O in relation to a
person who has been acquitted of an offence
if the court is satisfied that--
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(a) the offence is referred to in subsection
(2); and
(b) any circumstances referred to in
subsection (2) in respect of the offence
5 were present in the commission of the
offence; and
(c) there is fresh and compelling evidence
against the person in relation to the
offence; and
10 (d) it is likely that a new trial for that
offence would be fair, having regard
to--
(i) the length of time since the
offence is alleged to have been
15 committed; and
(ii) whether there has been a failure
on the part of the police or the
prosecution to act with reasonable
diligence or expedition with
20 respect to the making of the
application; and
(iii) any other matter that the court
considers relevant.
(2) Subsection (1) applies to the following
25 offences--
(a) murder;
(b) murder contrary to section 3A of the
Crimes Act 1958 (unintentional killing
in the course or furtherance of a crime
30 of violence);
(c) conspiracy to commit murder (section
321 of the Crimes Act 1958);
(d) incitement to commit murder (section
321G of the Crimes Act 1958);
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(e) attempting to commit murder (section
321M of the Crimes Act 1958);
(f) manslaughter;
(g) arson causing death (section 197A of
5 the Crimes Act 1958);
(h) trafficking in a drug or drugs of
dependence--large commercial
quantity (section 71 of the Drugs,
Poisons and Controlled Substances
10 Act 1981);
(i) cultivation of narcotic plants--large
commercial quantity (section 72 of the
Drugs, Poisons and Controlled
Substances Act 1981);
15 (j) rape (section 38 of the Crimes Act
1958), compelling sexual penetration
(section 38A of the Crimes Act 1958)
or armed robbery (section 75A of the
Crimes Act 1958) if the offence is
20 committed in circumstances where--
(i) torture (being the deliberate and
systematic infliction over a period
of time of severe pain on the
victim) was involved in the
25 commission of the offence; or
(ii) the offender caused really serious
injury to the victim; or
(iii) the offender threatened to cause
death or really serious injury to
30 the victim;
(k) a substantially similar offence against a
previous enactment or the law of a
place outside Victoria corresponding to
an offence referred to in this
35 subsection.
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s. 17
327N Determination of application where
administration of justice offence
On an application under section 327H, the
Court of Appeal may make any order
5 referred to in section 327O in relation to a
person who has been acquitted of an offence
if the court is satisfied that--
(a) at the time the offence is alleged to
have been committed, the offence was
10 an indictable offence; and
(b) there is fresh evidence against the
acquitted person of the commission of
an administration of justice offence in
relation to the previous acquittal; and
15 (c) it is likely that a trial for the
administration of justice offence would
be fair, having regard to--
(i) the length of time since the
administration of justice offence is
20 alleged to have been committed;
and
(ii) whether there has been a failure
on the part of the police or the
prosecution to act with reasonable
25 diligence or expedition with
respect to the making of the
application; and
(iii) any other matter that the court
considers relevant.
30 327O Orders on determination of application
(1) On an application under section 327H, if the
Court of Appeal is satisfied of the matters in
section 327L or 327M, the court may order
that--
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s. 17
(a) the previous acquittal of the accused of
an offence charged in the direct
indictment be set aside or removed as a
bar to the accused being tried on the
5 direct indictment (as the case requires);
and
(b) the prosecution of the charge in the
direct indictment may continue.
(2) On an application under section 327H, if the
10 Court of Appeal is satisfied of the matters in
section 327N, the court may order that--
(a) the previous acquittal of the accused be
removed as a bar to the accused being
tried for the administration of justice
15 offence alleged to have been committed
in relation to the previous acquittal; and
(b) the prosecution of the charge in the
direct indictment may continue.
(3) In addition to subsections (1) and (2), the
20 Court of Appeal may make any other order
that it considers appropriate.
(4) If the Court of Appeal is not satisfied that
section 327L, 327M or 327N applies or that
a fair trial is likely, the court must order that
25 the charge in the direct indictment is
permanently stayed.
(5) If more than one offence is charged in the
direct indictment, the Court of Appeal must
make an order under subsection (1), (2) or
30 (4) in relation to each charge.
(6) If the Court of Appeal makes an order under
subsection (1) or (2), the court may make
any order for or in relation to the bail of the
accused that the court considers appropriate.
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s. 17
327P DPP must elect which offence to prosecute
If the DPP satisfies the Court of Appeal
under sections 327L, 327M and 327N, or any
2 of those sections, the DPP must elect to
5 prosecute either--
(a) the administration of justice offence; or
(b) the offence of which the accused has
been acquitted or a related offence--
and may proceed only on that basis.
10 327Q Amendment of indictment
If the Court of Appeal makes an order under
section 327O(1) or (2) in relation to an
offence charged in a direct indictment, the
trial court must not amend the indictment to
15 significantly change the offence charged.
327R Prohibition on making certain references
in new trial
At a new trial that has been authorised under
this Chapter, the prosecution must not refer
20 to the fact that the Court of Appeal has been
satisfied that--
(a) there is fresh evidence, or fresh and
compelling evidence, against the
accused in relation to the offence
25 charged; or
(b) it is more likely than not that, had it not
been for the commission of an
administration of justice offence, the
accused would have been convicted of
30 the offence charged at the earlier trial.
Note
Section 18 of the Supreme Court Act 1986 permits the
court to make an order prohibiting the publication of the
whole or part of a proceeding.
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s. 18
327S Appeal and review rights unaffected
This Chapter does not affect any right to
appeal or review the acquittal of a person.
__________________".
18 New section 441 inserted
5 After section 440 of the Criminal Procedure Act
2009 insert--
"441 Transitional provisions--Criminal
Procedure Amendment (Double Jeopardy
and Other Matters) Act 2011
10 (1) Section 53A as inserted by section 6 of the
Criminal Procedure Amendment (Double
Jeopardy and Other Matters) Act 2011
applies to a proceeding in which the first
mention hearing is held on or after the
15 commencement of section 6 of that Act.
(2) Section 77 as amended by section 7 of the
Criminal Procedure Amendment (Double
Jeopardy and Other Matters) Act 2011
applies to a criminal record that is provided
20 to a court on or after the commencement of
section 7 of that Act.
(3) Section 244 as amended by section 15 of the
Criminal Procedure Amendment (Double
Jeopardy and Other Matters) Act 2011
25 applies to a criminal record that is filed in a
court on or after the commencement of
section 15 of that Act.
(4) Chapter 7A as inserted by section 17 of the
Criminal Procedure Amendment (Double
30 Jeopardy and Other Matters) Act 2011
applies on and from the commencement of
that section to an acquittal, irrespective of
whether the acquittal occurred before, on or
571091B.I-8/11/2011 24 BILL LA INTRODUCTION 8/11/2011
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2011
s. 19
after the commencement of section 17 of that
Act.".
19 Schedule 1 amended
In Schedule 1 to the Criminal Procedure Act
5 2009, after clause 13 insert--
"14 Additional information to be included on
indictment charging offence to which
Chapter 7A applies
The following information must be included
10 on a direct indictment charging an offence
the prosecution of which may only proceed if
the Court of Appeal gives authorisation
under section 327O--
(a) a statement that the DPP will apply to
15 the Court of Appeal to set aside the
previous acquittal of the accused or to
remove the previous acquittal as a bar
to the accused being tried on the direct
indictment (as the case requires); and
20 (b) identification of each charge on the
indictment to which the statement is
relevant.".
20 Amendment of Public Prosecutions Act 1994
Before section 22(1)(d) of the Public
25 Prosecutions Act 1994 insert--
"(ce) if the Director considers it desirable to do so,
to provide advice to an agency, body or
person that has a power to investigate or
prosecute criminal offences, or a class of
30 criminal offences, in relation to an
investigation (including a reinvestigation of
an offence of which a person has previously
been acquitted) or a prosecution;".
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s. 21
21 Amendment of Appeal Costs Act 1998
After section 17 of the Appeal Costs Act 1998
insert--
"17A Application for indemnity certificate if
5 DPP applies for continuation of
prosecution of person previously acquitted
(1) If an application is made to the Court of
Appeal under section 327H of the Criminal
Procedure Act 2009, the accused may apply
10 to the Court of Appeal for, and, if it is in the
interests of justice to do so, the Court of
Appeal may grant, an indemnity certificate in
respect of--
(a) the accused's own costs of the
15 application; and
(b) if the Court of Appeal orders that the
prosecution of the charge in the direct
indictment against the accused may
continue, any additional costs that the
20 accused will pay, or will be ordered to
pay, as a consequence of the order for
the continuation of the prosecution.
(2) In determining whether it is in the interests
of justice to grant an indemnity certificate
25 under subsection (1), the Court of Appeal
may have regard to--
(a) whether the Court of Appeal orders that
the prosecution of the charge in the
direct indictment against the accused
30 may continue; and
(b) whether the previous acquittal was
attributable in any way to the act,
neglect or fault of the accused; and
(c) any other matter that the Court of
35 Appeal considers relevant.
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s. 22
(3) An accused granted an indemnity certificate
under subsection (1) is entitled to be paid by
the Board, on an application made to it by
the accused in the approved form--
5 (a) an amount equal to the accused's own
costs of the application; and
(b) any additional costs that the accused
pays, or is ordered to pay, as a
consequence of the order for the
10 continuation of the prosecution--
that the Board considers to have been
reasonably incurred.".
22 Statute law revision amendments
(1) In section 313(1) of the Criminal Procedure Act
15 2009, for "Rules" substitute "rules of court".
(2) In the note at the foot of section 411(2) of the
Criminal Procedure Act 2009, for "Evidence
Act 1958" substitute "Evidence (Miscellaneous
Provisions) Act 1958".
20 (3) Section 420(1)(b) of the Criminal Procedure Act
2009 is repealed.
(4) In section 76C(1) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997, for "Rules" substitute "rules of court".
25 (5) In section 14(2) of the Confiscation Amendment
Act 2010--
(a) for "section 22(a)(ii) and (c)(iiia)" substitute
"section 22(1)(a)(ii) and (1)(c)(iiia)";
(b) after ' "property" ' insert "(where secondly
30 occurring)".
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s. 23
(6) In the Equal Opportunity Act 2010--
(a) in section 4(1), in the definition of owners
corporation, for "Owners Corporation Act
2006" substitute "Owners Corporations
5 Act 2006";
(b) in section 56(5), for "Owners Corporation
Act 2006" substitute "Owners
Corporations Act 2006".
(7) In item 3.26 of the Schedule to the Equal
10 Opportunity Amendment Act 2011--
(a) omit "an";
(b) omit "a".
23 Repeal of amending Act
This Act is repealed on 1 July 2013.
15 Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
571091B.I-8/11/2011 28 BILL LA INTRODUCTION 8/11/2011
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2011
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
571091B.I-8/11/2011 29 BILL LA INTRODUCTION 8/11/2011
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