Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
S.R. No. 105/2016
table of provisions
RulePage
RulePage
Part 1—Preliminary
1Object
2Authorising provisions
3Commencement
Part 2—Amendment of Chapter I
4Application of Part 5 of Order 58
Part 3—Amendment of Chapter VI
5Rule 3C.01 substituted
6Form 6–3CA amended
7Form 6–3CB amended
8Form 6–3CC amended
9Form 6–3CD amended
10Form 6–3CE amended
11New Order 3D inserted
12New Forms 6–3DA to 6–3DH inserted
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Endnotes
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Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
S.R. No. 105/2016
statutory rules 2016
S.R. No. 105/2016
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Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
S.R. No. 105/2016
Supreme Court Act 1986
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Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
S.R. No. 105/2016
Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
1
Supreme Court (Chapter I and Chapter VI Dual Commission Holder Amendments) Rules2016
S.R. No. 105/2016
The Judges of the Supreme Court make the following Rules:
Part 1—Preliminary
1Object
The object of these Rules is to amend Chapter I and Chapter VI of the Rules of the Supreme Court as a consequence of changes made by the Justice Legislation Further Amendment Act 2016in relation totheChief Magistrate who is a dual commission holder.
2Authorising provisions
These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.
3Commencement
These Rules come into operation on 1 September 2016.
Part 2—Amendment of Chapter I
4Application of Part 5 of Order 58
In Rule 58.22 of the Supreme Court (GeneralCivil Procedure) Rules 2015[1], after "ofthat Court" insert "or by the Chief Magistratewho is a dual commission holder".
Part 3—Amendment of Chapter VI
5Rule 3C.01 substituted
For Rule 3C.01 of the Supreme Court (CriminalProcedure) Rules 2008[2]substitute—
"3C.01 Application of Order 3C
This Order applies to appeals to the Trial Division under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 from the Children's Court constituted by the President of that Court or by the Chief Magistrate who is a dual commission holder.".
6Form 6–3CA amended
In Form 6–3CA of the Supreme Court (CriminalProcedure) Rules 2008, for "thePresident" substitute "the *President/
*Chief Magistrate who is a dual commission holder".
7Form 6–3CB amended
In Form 6–3CB of the Supreme Court (CriminalProcedure) Rules 2008, for "thePresident" substitute "the *President/
*Chief Magistrate who is a dual commission holder".
8Form 6–3CC amended
In Form 6–3CC of the Supreme Court (CriminalProcedure) Rules 2008, for "thePresident" substitute "the *President/
*Chief Magistrate who is a dual commission holder".
9Form 6–3CD amended
In Form 6–3CD of the Supreme Court (CriminalProcedure) Rules 2008, for "thePresident" substitute "the *President/
*Chief Magistrate who is a dual commission holder".
10Form 6–3CE amended
In Form 6–3CE of the Supreme Court (CriminalProcedure) Rules 2008, for "thePresident" substitute "the *President/
*Chief Magistrate who is a dual commission holder".
11New Order 3D inserted
After Order 3C of the Supreme Court (CriminalProcedure) Rules 2008 insert—
"Order 3D
APPEALS TO TRIAL DIVISION UNDER PART6.1 OF CHAPTER6 OF THE CRIMINALPROCEDURE ACT2009
3D.01Application of this Order
This Order applies to any appeal under Part6.1 of Chapter 6 of the Criminal Procedure Act 2009to the Trial Division ofthe Court from the Magistrates' Court constituted by the Chief Magistrate who isadual commission holder.
3D.02Definitions
In this Order, unless the context or subject matter otherwise requires—
the Actmeans the Criminal Procedure Act2009.
3D.03 Notice of appeal by offender
(1)A notice of appeal and undertaking to proceed under section 255 of the Act shall be in Form 6–3DA.
(2)The notice of appeal and undertaking to proceedshall be signed by the appellant in the presence of—
(a)the Registrar of the Magistrates' Court with whom the notice of appeal is filed;
(b)if the appellant is in a prison, youth justice centre or youth residential centre—
(i)the officer in charge of the prison, youth justice centre or youth residential centre; or
(ii)any prison officer of or above the rank of senior prison officer; or
(c)if the appellant is in a police gaol, a police officer—
(i)of or above the rank of sergeant; or
(ii)for the time being in charge of a police station.
(3)A notice under section 255(6)(a) of the Act shall be in Form 6–3DB.
3D.04 Appeals by DPP against sentence or failure to fulfil undertaking
(1)A notice of appeal referred to in section 258 of the Act in respect of an appeal by the DPP under section257 of the Act shall be in Form6–3DC.
(2)Within 7 days after serving a copy of thenotice of appeal in accordance with section258(2) of the Act, the DPP shall filein the Supreme Court—
(a)a copy of the notice of appeal; and
(b)an affidavit of service.
(3)A notice of appeal referred to in section 261 of the Act in respect of an appeal by the DPP under section260 of the Act shall be in Form6–3DD.
(4)Within 7 days after serving a copy of thenotice of appeal in accordance with section261(2) of the Act, the DPP shall filein the Supreme Court—
(a)a copy of the notice of appeal; and
(b)an affidavit of service.
3D.05 Prothonotary to fix date for hearing of appeal
The Prothonotary shall—
(a)fix the date and place for hearing of each appeal to which this Order applies and of each application referred to in Rule 3D.08; and
(b)notify in writing each party and each legal practitioner who has given notice under Rule3D.10 of the date and place of hearing within a reasonable time before the hearing.
3D.06 Abandonment of appeal
(1)A notice of abandonment of appeal undersection 266 of the Actshall be in Form6–3DE.
(2)For the purposes of the striking out of an appeal under section 266(4) of the Act, theCourt may be constituted by the Prothonotary or a Judge of the Court.
3D.07Written notice of abandonment of appeal—conviction only
Written notice under section 266(2) of the Act that an appeal against conviction is abandoned, but an appeal against sentence ispursued, shall be in Form 6–3DF.
3D.08Application to set aside an order striking out appeal for failure to appear
(1)An application under section 267(3) of theAct to set aside an order striking out anappeal for failure to appear shall be in Form6–3DG.
(2)The Prothonotaryshall, as soon as practicable,forward a copy of the application to the court where the original sentence or order was imposed.
3D.09Recording and notification of result of appeal
(1)The Court shall record the result of each appeal to which this Order applies in a result of appeal form in Form 6–3DH.
(2)The Prothonotaryshall forward a copy of theresult of appeal form to—
(a)the court where the original sentence or order was imposed;
(b)the parties; and
(c)anyperson or authority concerned withthe administration of any sentence or order originally imposed in the Magistrates' Court, or any sentence or order imposed by the Court on appeal.
(3)If more than one appeal is heard together, itis not necessary to record the sentence on aseparate result of appeal form, but the outcome of each appeal, the particulars of each charge and the sentences imposedshall be recorded in full.
(4)Where the Court has imposed a sentence ofimprisonment or detention, the result of appeal form shall be sufficient to authorise the keeping of the appellant for the period and inthe manner set out in the form.
3D.10Legal practitioner to notify that practitioner acts
(1)If a legal practitioner is engaged to act on behalf of an appellant or a respondent to an appeal to which this Order applies, the legal practitioner,without delay, shall notify the Prothonotary in writing that the practitioner so acts and provide an address for service.
(2)If a legal practitioner ceases to act on behalf of an appellant or a respondent or the address for service is changed, the legal practitioner shall without delay so notify the Prothonotary in writing.".
12New Forms 6–3DA to 6–3DH inserted
After Form 6–3CE of the Supreme Court (Criminal Procedure) Rules 2008 insert—
"Rule 3D.03(1) / Form 6–3DANotice of Appeal
MAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
IN THE MATTER OF
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm:Practitioner's name:
Solicitor Code:Ref.:
TO the Prothonotary of the Supreme Court at: [place]
AND TO the Respondent: [name]
Address for Respondent:
I appeal under section 254 of the Criminal Procedure Act 2009against a decision made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].
The details of the offences and Sentence/Order imposed are:
Offence / Sentence/OrderI am appealing against:
*Conviction and sentence
*Sentence alone
STATEMENT REGARDING POWER TO IMPOSE A MORE SEVERE SENTENCE
I am aware that on my appeal the Supreme Court may impose a more severe sentence than the one imposed by the Magistrates' Court.
Date:
[Signature of Appellant]
UNDERTAKING TO PROCEED WITH APPEAL
I [name]
of [address] undertake to:
(a)appear at the Supreme Court to proceed with the appeal at a place andon a day fixed by the Prothonotary of the Supreme Court and to appear at the Supreme Court for the duration of the appeal.
(b)notify the Prothonotary of theSupreme Court in writing of any change of address from that appearing in this notice of appeal.
Date:
[Signature of Appellant]
In the presence of:
[Signature of Magistrates' Court Registrar/Prison Officer/Police Officer]
I am aware of all the additional information set out below in this notice of appeal.
Date:
[Signature of Appellant]
SERVICE OF NOTICE OF APPEAL
A copy of the notice of appeal must be served on the respondent within 7days after the day on which the notice is filed. The notice must be served:
(a)by giving a copy of the document to—
(i)the informant; or
(ii)a person representing the informant at ahearing in relation to the charge; or
(b)by sending a copy of the document byprepaid ordinary post addressed to theinformant at the business address nominatedby the informant under section 18 of the Criminal Procedure Act 2009; or
(c)by sending a copy of the document by fax oremail addressed to the informant at the faxnumber or email address nominated by theinformant under section 18 of that Act; or
(d)by leaving a copy of the document for theinformant at the informant's business addresswith a personwho appears to work there; or
(e)in any other manner agreed between theinformant and the party serving thedocument.
ABANDONING AN APPEAL
If you decide to abandon your appeal against both conviction and sentence, you must file in the Supreme Court a notice of abandonment of appeal in the form required by the Supreme Court (Criminal Procedure) Rules.
If you decide to abandon your appeal against conviction but pursue your appeal against sentence alone you must file in the Supreme Court a written notice of abandonment of appeal in the form required by the Supreme Court (CriminalProcedure) Rules.
You should contact the office of the Prothonotary of the Supreme Court for further information.
FAILURE TO APPEAR AT ANAPPEAL
If you fail to appear at the appeal hearing the Supreme Court may strike out your appeal or adjourn the proceedings on any terms the Court thinks appropriate.
COSTS OF AN APPEAL
If the Supreme Court strikes out or dismisses your appeal, it may order you to pay all or a specified portion of the respondent's costs if it is satisfied that the appeal was brought vexatiously or frivolously or in abuse of process.
APPLICATION FOR LEAVE TO APPEAL
If your notice of appeal has been filed more than 28 days after you were sentenced, your appeal is deemed to be an application for leave to appeal. The Supreme Court will consider your application prior to an appeal hearing commencing. If your application is granted, the Supreme Court may continue to hearyour appeal on that day or adjourn the matter to a future date.
LEGAL ASSISTANCE
If you wish to make application for legal assistance you must make application in writing to Victoria Legal Aid (Melbourne—9269 0120) (RuralAreas—1800 677 402). The staff of the Magistrates' Court or the staff of the Supreme Court can advise you of the address of the nearest Victoria Legal Aid office. Such application must be made immediately because it may take some time to process. You should take all necessary steps promptly so that,if you are granted legal aid, there will be enough time for advice to be given to you by your lawyer about the appeal.
*Delete if not applicable
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Rule 3D.03(3) / Form 6–3DBNotice under section 255(6)(a) of the Criminal Procedure Act 2009 for proposed appellant
To the proposed Appellant:
TAKE NOTICE that in relation to your proposed appeal to the Supreme Court from the decision of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Supreme Court may impose a sentence which is more severe than the one imposed by the Magistrates' Court.
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Rule 3D.04(1) / Form 6–3DCMAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
Notice of Appeal under section 257 of the criminal procedure Act 2009 by DPP against Sentence Imposed by Magistrates' Court CONSTITUTED by Chief Magistrate who is a dual COMMISSION holder
To the Registrar of the Magistrates' Court:
I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"),being satisfied that the appeal should be brought in the public interest, appeal under section 257 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder on [name of offender] of [address].
The general grounds of appeal are:
[state the general grounds of the appeal]
Date:
[Signed by or on behalf of DPP]
PARTICULARS
1.Name of offender on whom sentence imposed:
2.Offence for which offender convicted and sentenced to which this appeal relates:
3.Convicted at: [place and court]
4.Chief Magistrate:
5.Date of conviction:
6.Sentence:
7.Date of sentence:
8.Name and address of legal practitioner who represented offender at summary proceeding:
9.Name of counsel (if any) who represented offender at summary proceeding:
HEARING OF APPEAL
The Prothonotary of the Supreme Court will fix the date and place for the hearing of this appeal and will, a reasonable time before the hearing, notify the date and place of the hearing, in writing, to each party and to each legal practitioner who has given notice that they act on behalf of a party.
______
Rule 3D.04(3) / Form 6–3DDMAGISTRATES' COURT CASE No.
SUPREME COURT CASE No.
Notice of Appeal under section 260 of the criminal procedure act 2009 by DPP against Sentence Imposed by Magistrates' Court CONSTITUTED by Chief Magistrate who is a dual COMMISSION holder
To the Registrar of the Magistrates' Court:
I, [full name], the Director of Public Prosecutions for Victoria ("the DPP"), appeal under section 260 of the Criminal Procedure Act 2009 against a sentence imposed by the Magistrate's Court constituted by the Chief Magistrate who is a dual commission holder on [name of offender] of [address]. The respondent was convicted of an indictable offence that was heard and determined summarily by the Magistrates' Court. The sentence imposed on the respondent was less severe because of an undertaking given by the respondent to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence. I consider that respondent has failed, wholly or partly, to fulfil the undertaking.
Date:
[Signed by the DPP personally]
PARTICULARS
1.Name of offender on whom sentence imposed:
2.Offence for which offender convicted and sentenced to which this appeal relates:
3.Convicted at: [place and court]
4.Chief Magistrate:
5.Date of conviction:
6.Sentence:
7.Date of sentence:
8.Name and address of legal practitioner who represented offender at summary proceeding:
9.Name of counsel (if any) who represented offender at summary proceeding:
HEARING OF APPEAL
The Prothonotary of the Supreme Court will fix the date and place for the hearing of this appeal and will, a reasonable time before the hearing, notify the date and place of the hearing, in writing, to each party and to each legal practitioner who has given notice that they act on behalf of a party.
______
Rule 3D.06 / Form 6–3DEIN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
Notice of Abandonment of Appeal
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER IS NEXT LISTED ON: [date] FOR .
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm:Practitioner's name:
Solicitor Code:Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
I abandon my appeal against*the conviction and sentence/*the sentence imposedin the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].
The Magistrates' Court reference number is
The *conviction and sentence/*sentence/*orders imposed *was/*were
I acknowledge that as a result of filing this form, my appeal will be struck out and the sentence of the Magistrates' Court will be reinstated and that it may be enforced immediately.
Date:
[Signature of Appellant]
*Delete if not applicable
______
Rule 3D.07 / Form 6–3DFIN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
Written Notice of Abandonment of Appeal—Conviction Only
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER IS NEXT LISTED ON: [date] FOR .
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
Firm:Practitioner's name:
Solicitor Code:Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
I appealed against the conviction and sentenceimposed on me by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].
The Magistrates' Court reference number is
I abandon my appeal against conviction. I wish to proceed only with my appeal against sentence.
Date:
[Signature of Appellant]
*Delete if not applicable
______
Rule 3D.08 / Form 6–3DGIN THE SUPREME COURT CASE No.
OF VICTORIA
AT
IN THE MATTER OF
Application to Set Aside Order Striking Out Appeal for Failure to Appear
THIS FORM IS FILED ON BEHALF OF:
ADDRESS:
THIS MATTER WAS LISTED ON: [date]
CONTACT DETAILS
[If represented, please complete the legal practitioner details below]
Contact No.:
Email address:
Address for service:
*I have legal representation [complete below]
*I do not have legal representation
*I represent the applicant
Firm: Practitioner's name:
Solicitor Code:Ref.:
TO the Prothonotary of the Supreme Court at:
AND TO the Respondent: [name] of [address]
An appeal was lodged against a decision ofthe Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder at [place] on [date].