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Supreme Court (Criminal Procedure) Rules 2008

Order 1Preliminary

Supreme Court (Criminal Procedure) Rules2008

S.R. No. 12/2008

Version No. 031


S.R. No. 12/2008

Version incorporating amendments as at29 May 2017

table of provisions

RulePage

i

xvi

Order 1Preliminary1

1.01Title and object1

1.02Authorising provisions1

1.03Commencement and revocation2

1.04Application of Rules2

1.05Definitions2

1.06Registrar of Criminal Appeals4

1.06.1Associate Judge acting for Registrar5

1.07Calculating time5

1.08Extension and abridgement5

1.09Process in vacation6

1.10Content and form of documents6

1.11Filing of documents6

1.12Subpoenas7

1.12.1SubpoenasTrans-Tasman Proceedings Act20108

1.12.2Procedure under the Vexatious Proceedings Act20149

1.13Authentication9

1.14Amendment of judgment or order10

1.15Effect of non-compliance and dispensing with compliance10

1.16Exercise of jurisdiction by Judge of the Court or Court of Appeal11

1.17Notices to be signed11

1.18General applications11

Order 2Criminal appeals12

Part 1Preliminary12

2.01Definitions12

2.02Single judge13

2.03Jurisdiction and powers exercisable by two Judges of Appeal13

2.04Legal practitioners14

Part 2Commencement of appeals under Divisions1 and2 of Part6.3 of Chapter 6 of the Criminal Procedure Act200915

2.05Application for leave to appeal against conviction or sentence15

2.06Application may be determined by single Judge of Appeal16

2.07Procedure for determination of application by single Judge of Appeal16

2.08Procedure for renewal of application18

2.09Powers of determination19

2.09.1Application may be treated as appeal19

2.09.2No notice of appeal when leave is granted19

2.12Unrepresented appellant20

2.13Registrar may vacate hearing date or refer for dismissal20

2.14.Transitional provisionsSupreme Court (ChapterVI Amendment No. 6) Rules 201121

Part 3Appeals under Division 3 of Part6.3 of Chapter6 of the Criminal Procedure Act 200921

2.15Crown appeals21

Part 4Applications under Division 5 of Part6.3 of Chapter6 of the Criminal Procedure Act 200922

2.16Refusal to reserve question of lawapplication to show cause22

2.17Applicant to file affidavit22

Part 5Appeals under Crimes (Mental Impairment and Unfitness to be Tried) Act199723

2.17.1Application of this Part23

2.18Commencement of appeal against finding that accused is unfit to stand trial23

2.19Commencement of appeal against verdict of not guilty because of mental impairment24

2.20Application may be treated as appeal24

2.21No notice of appeal when leave is granted24

Part 6Applications under Division 7 of Part6.3 of Chapter6 of the Criminal Procedure Act 200925

2.22Application for extension of time25

2.23Extension of time before Registrar25

2.24Extension of timeapplication under section313(2)26

2.25Application under section 315refusal of Judge of Appeal to exercise powers26

Part 7Reference to Court of Appeal on petition of mercy27

2.26Reference on petition of mercy27

Part 8Procedures28

2.27Time28

2.28Fine and imprisonment in defaultfine paid to be retained pending appeal28

2.29Procedure for appeal where fine and imprisonment in default29

2.30Pre-hearing conference30

2.31Transcript of trial30

2.32Preservation of exhibits31

2.33Copies of transcript, exhibits etc.32

2.34Return of exhibits after hearing32

2.35Certificate of conviction33

2.36Attendance of appellant34

2.38Bail35

2.39Registrar to notify determination35

2.40Notice of abandonment36

2.41Abandonment36

2.42Report from trial judge36

2.43Original depositions, exhibits etc.37

2.44Witnesses before Court of Appealsection31837

2.45Examination other than by court under section318(2)38

2.46Special commissionerssection 32040

2.47Entitlement to hearing when restitution order or compensation order made41

2.48Property subject to restitution order or compensation order41

2.49Security may be ordered42

2.50Property subject to order for forfeiture or destruction42

2.51Custody of property of convicted person42

2.52Transfer of prisoners43

2.53Duties of prison officers43

2.54Obligation of prison officerssection 283 appeals45

Part 9Other applications to Court of Appeal46

2.55Application of Part46

2.56Application by summons46

2.57Service46

2.58Directions hearing46

2.59Court of Appeal may set aside or give directions47

Order 3Interlocutory appeals under the Criminal Procedure Act200948

3.01Application of Order48

3.02Definitions48

3.03Commencement of interlocutory appealsection29548

3.04Commencement of application for review of refusal to certifysection29649

3.05Appellant to file affidavit49

3.06Application for leave may be treated as appeal or review50

Order 3AAppeals on a question of law51

3A.01Application of Order and definitions51

3A.02Commencement of appeal on a question of law51

3A.03Notice of appeal52

3A.04Appellant to file affidavit53

3A.05Directions54

3A.06Leave to appeal55

3A.07Stay55

3A.08Delay and expedition55

3A.09Report56

3A.10Reference by Associate Judge to Judge of the Court56

3A.11Reference by Judge of the Court to Associate Judge57

3A.12Appeal to a Judge of the Court57

3A.13Appeal to the Court of Appeal57

Order 3BAppeals under the Children, Youth and Families Act2005 other than appeals on a question of law59

3B.01Application of Order59

3B.02Notice of appeal and undertaking to proceed with appeal59

3B.03Legal practitioner to notify that he or she acts59

3B.04Prothonotary to fix hearing60

3B.05Recording of decision on appeal under section 42460

3B.06Appeal by DPP against sentence61

3B.07Appeal by DPP under section 429Afailure to fulfil undertaking62

3B.08Abandonment of appeal62

3B.09Order striking out appeal62

3B.10Application to set aside order striking out appeal for failure toappear62

3B.11Original depositions, exhibits etc.63

3B.12Prothonotary to notify determination63

3B.13Certificate of conviction64

3B.14Fine and imprisonment in defaultfine paid to be retained pending appeal64

3B.15Entitlement to hearing when restitution order or compensation order made65

3B.16Property subject to restitution order or compensation order65

Order 3CAppeals from Children's Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 199766

3C.01Application of Order 3C66

3C.02Appeal by child against finding of unfitness to be tried66

3C.03Appeal by child against finding of not guilty because of mental impairment66

3C.04Appeal by DPP against order for unconditional release66

3C.05Appeal by child against supervision order67

3C.06Appeal by DPP, Attorney-General or Secretary to the Department of Human Services or Secretary to the Department of Health against supervision order67

3C.07Affidavit in support67

3C.08Children's Court recording officer to give Court documents when required68

Order 3DAppeals to Trial Division under Part6.1 of Chapter6 of the CriminalProcedure Act200969

3D.01Application of this Order69

3D.02Definitions69

3D.03Notice of appeal by offender69

3D.04Appeals by DPP against sentence or failure to fulfil undertaking70

3D.05Prothonotary to fix date for hearing of appeal70

3D.06Abandonment of appeal71

3D.07Written notice of abandonment of appealconviction only71

3D.08Application to set aside an order striking out appeal for failure to appear71

3D.09Recording and notification of result of appeal71

3D.10Legal practitioner to notify that practitioner acts72

Order 4Criminal procedure rules73

Part 1Pre-trial criminal procedure73

4.01Definitions73

4.02Filing indictment73

4.03Notice to accompany copy indictmentno legal practitioner representing accused74

4.04Notice by legal practitioner to DPP and CTLD74

4.05Notice by legal practitioner to Prothonotary75

4.06Unrepresented accused75

4.07Questionnaire76

4.08Case conference76

Part 2Notices under the Act and general matters82

4.09Commonwealth DPP82

4.10DPP to specify sections in notice given under the Act82

4.11Notice of alibi82

4.12Recording of time and date of arraignment82

4.13Notice of intention to plead guilty to remaining charges in indictment82

4.14Summons or warrant when direct indictment filed82

Part 3Authority of judicial registrars under these rules83

4.15Authority of judicial registrar at directions hearings83

4.16Limitations on authority of judicial registrar83

4.17Further authority of judicial registrars84

4.18Judicial registrar may constitute Trial Division of Court85

4.19Appeal from determination by a judicial registrar under this Part85

4.20Judicial registrar may act for another86

Order 5Payment of fines rules87

Part 1Payment of finesSentencing Act199187

5.01Definitions87

5.02Proper officer87

5.03Application87

5.04Application operates as stay87

5.05Consideration of application88

5.06Service of copy order88

5.07Enforcement of fines against a natural person88

5.08Enforcement of fine against body corporate89

Part 2Applications under the Sheriff Act200989

5.09Application for reinstatement of certain money warrants89

5.10Filing and service of summons90

Order 6Confiscation of property and proceeds of crime91

Part 1Preliminary matters91

6.01Definitions91

6.02Application of this Order91

6.03Notice by legal practitioner91

Part 2Applications under the Confiscation Act 199792

6.04Making of application to the Court92

6.05Notice and service generally92

6.06Applications for restraining orders92

6.07Applications for monitoring orders93

6.08Application without notice under the Act93

6.09Form of certain applications and notices of application93

6.10Filing and directions94

6.11Notice by person contesting an application95

6.12Evidence95

6.13Notice of order or declaration96

6.14Notice of discharge97

6.15Interstate order98

6.16Examination under section 98(2) of the Act98

Part 3Applications under the CommonwealthAct98

6.17Making of application to the Court under the Commonwealth Act98

6.18Notice and service under the Commonwealth Act98

6.19Applications for restraining orders andother applications under the Commonwealth Act99

6.20Applications for monitoring orders underthe Commonwealth Act99

6.21Filing and directions99

6.22Notice by person contesting an application under the Commonwealth Act100

6.23Evidence100

6.24Notice of order or declaration under Commonwealth Act101

Order 7Surveillance devices rules102

7.01Definition102


7.03Forms of application102

7.04Filing and service of documents102

7.05Form of surveillance device warrants102

7.06Form of retrieval warrant102

7.07Assistance orders103

7.08Reports under section 30K103

Order 9Witness protection rules105

9.01Definition105


9.03Application105

9.04Filing and service of documents105

Order 10Applications under Part IIA of the Evidence (Miscellaneous Provisions) Act 1958106

10.01Definition106

10.02Application under section 42E106

10.03Application under section 42L106

10.04Application under section 42M106

10.05Application under section 42N107

10.06Application under section 42P107

Order 11Terrorism (community protection)rules108

11.01Definition108


11.03Form of application to Court108


11.05Form of warrant108

Order 12Serious sex offenders (detention and supervision) rules109

12.01Definition109


12.03Forms of application for supervision order and renewal of supervision order109

12.04Form of supervision order109

12.05Forms of application for detention order and renewal of detention order110

12.06Form of detention order110

12.07Forms of application for interim supervision order and extension of interim supervision order110

12.08Forms of application for interim detention order and extension of interim detention order110

12.09Forms of interim order and order extending interim order111

12.10Application for review of orders111

12.11Applications for leave to review orders111

12.12Review of conditions of supervision order or interim supervision order112

12.13Order for a person to attend for examination112

12.14Forms of notice of appeal112

12.15Notice of intention to dispute reports under section113 of the Act113


Order 12ASex offenders registration rules114

12A.01Definition114

12A.02Forms of application for exemption from reporting requirements114

12A.03Forms of application by Chief Commissioner of Police114

12A.04Filing of documents115

Order 13Major crime (investigative powers)rules116

13.01Definition116


13.03Applications made under this Order116

13.04Form of application for coercive powers order or extension or variation of order116

13.05Form of order116

13.05.1Application for revocation of coercive powers order116

13.05.2Application objecting to disclosure or production of protected information at revocation hearing117

13.06Form of application for witness summons117

13.07Form of application for order to bring person in custody before Chief Examiner117

13.08Application for extension of period to protect matters specified in section 20(8F)(a) to (d) of the Act117

13.09Application to determine legal professional privilege117


Order 14Assumed identity rules118

14.01Definition118


14.03Applications made under this Order118

14.04Forms of application under the Act118


14.06Forms of order119

Order 15Identity crime rules120

15.01Identity crime certificate120

15.02Notice to prosecutor to assist120

Order 16Procedure under the OpenCourtsAct2013121

16.01Definitions121

16.02Notice of application for suppression order121

Forms122

Form 61ASubpoena122

Form 61BNotice to addressee and declaration128

Form 61BASubpoena to give evidence (New Zealand)130

Form 61BBSubpoena to produce documents (New Zealand)136

Form 61BCSubpoena to give evidence and produce documents (New Zealand)144

Form 61CGeneral application153

Form 62ANotice of application for leave to appeal against conviction154

Form 62BNotice of application for leave to appeal against sentence157

Form 62CNotice of application for leave to appeal against sentence imposed by County Court on appeal from Magistrates' Court under section283 of the Criminal Procedure Act 2009160

Form 62DNotification to applicant of single judge's decision under section315 of the Criminal Procedure Act 2009162

Form 62DANotification to appellant of single judge's decision to grant leave to appeal or refer application to at least two judges of appeal163

Form 62DBNotification to appellant of single judge's decision to grant leave to appeal on some grounds and refuse leave on other grounds or to refuse leave to appeal165

Form 62DCNotification to appellant of Court of Appeal decision on renewed application167

Form 62EApplication under section304 of the Criminal Procedure Act 2009 to show cause why a question of law should not be reserved for determination by Court of Appeal169

Form 62FNotice of application for leave to appeal against finding of unfitness to stand trial170

Form 62GNotice of application for leave to appeal against mental impairment verdict173

Form 62HApplication for extension of time to *file/*serve notice of appeal or notice of application to appeal176

Form 62INotification to applicant of registrar's decision under section313 of the Criminal Procedure Act 2009177

Form 62JElection to have extension of time determined by the Court of Appeal178

Form 62KElection to have application under section 315 of the Criminal Procedure Act 2009 determined by Court of Appeal179

Form 62LRecognizance of appellant sentenced to pay a fine (andsurety)180

Form 62MNotification of result of appeal or application182

Form 62NNotice of abandonment183

Form 62OAppellant's application for examination offurtherwitness(es)184

Form 62PNotice to witness to attend before examiner185

Form 62QNotice to prisoner who wishes to appeal186

Form 62RInformation for persons upon whom a sentence of imprisonment has been imposed by the County Court upon appeal from the Magistrates' Court in substitution for other sentence imposed by the Magistrates'Court187

Form 63ANotice of application for leave to appeal against interlocutory decision188

Form 63BNotice of application for review of refusal of judge tocertify under section 295(3) of Criminal Procedure Act 2009190

Form 63BANotice of appeal and undertaking to proceed191

Form 63BBNotice of Supreme Court's decision on appeal193

Form 63BCNotice of appeal by DPP against sentence imposed by Children's Court194

Form 63BDNotice of appeal by DPP under section429A of Children, Youth and Families Act 2005failure to fulfil undertaking195

Form 63BENotice of abandonment of appeal under section 430C of the Children, Youth and Families Act 2005196

Form 63BFWritten notice of abandonment of appealconviction onlysection 430C(3) of the Children, Youth and Families Act 2005197

Form 63BGOrder striking out appeal198

Form 63BHApplication to set aside order striking out appeal for failure to appear199

Form 63BINotification of result of appeal under Division 1 or2 of Part 5.4 of Chapter 5 of the Children, Youth and Families Act2005200

Form 63CANotice of appeal by a child against finding of unfitness to be tried201

Form 63CBNotice of appeal by child against finding of not guilty because of mental impairment203

Form 63CCNotice of appeal by DPP against an order for unconditional release205

Form 63CDNotice of appeal by a child against supervisionorder207

Form 63CENotice of appeal by *DPP/*Attorney-General/ *Secretary to the Department of Human Services/*Secretary to theDepartment of Health against supervision order209

Form 6-3DANotice of appeal211

Form 63DBNotice under section 255(6)(a) of the Criminal Procedure Act 2009 for proposed appellant215

Form 63DCNotice 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 holder216

Form 63DDNotice 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 holder218

Form 63DENotice of abandonment of appeal220

Form 63DFWritten notice of abandonment of appealconviction only222

Form 63DGApplication to set aside order striking out appealfor failure to appear223

Form 63DHResult of appeal form225

Form 64ANotice to accused under section 171 of the Criminal Procedure Act2009226

Form 64BNotice that legal practitioner acts227

Form 64CNotice that legal practitioner has ceased to act228

Form 64DQuestionnaire229

Form 64ENotice of alibi230

Form 64FNotice of intention to plead guilty to one or more remaining charges in indictment231

Form 64GSummons232

Form 64HWarrant to arrest233

Form 65AApplication for *instalment order *time to pay order *variation of instalment order or time to pay order *fine conversion order235

Form 65BNotice about the procedure for enforcementoffines237

Form 65ESummons for failure to pay a fine240

Form 65FNotice about the procedure for enforcement of a fine (bodies corporate)242

Form 65GSummonsApplication under section 28 of the Sheriff Act2009243

Form 66AApplication under section [insert relevant provision ofsection 16 of ConfiscationAct 1997] for restraining order244

Form 66ABApplication under section 36K for civil forfeiture restraining order247

Form 66ACApplication under section 40F for unexplained wealth restraining order249

Form 66BNotice of application made under *section16/*section 36K/*section 40F251

Form 66CApplication under section*20/*36U/*40R forexclusionorder253

Form 66DApplication under *section26/*section 36W/ *section40W for further orders256

Form 66EApplication under section32 for forfeiture order258

Form 66FApplication under section 37 for civil forfeiture order260

Form 66FAApplication under section *40A/*40ZC oftheConfiscation Act 1997 for *section 40B exclusion order/*section40ZD exclusion order262

Form 66GApplication under section*45/*45B for relief from undue hardship264

Form 66GAApplication under section45A for relief from automatic forfeiture of property of serious drug offender266

Form 66HApplication under Part 6 of the Confiscation Act1997 for exclusion order268

Form 66JApplication under section58 for pecuniary penalty order270

Form 66LApplication to be made under section [insert number] of the Confiscation Act 1997272

Form 66LANotice of contest of application274

Form 66MImportant notice275

Form 66NNotice of discharge of forfeiture277

Form 66OApplication under section 115 of the Confiscation Act 1997 for monitoring order279

Form 66PApplication under section [insert relevant section of Proceedsof Crime Act 2002 of the Commonwealth] for restraining order281

Form 66QApplication under section 20A of the Proceedsof Crime Act 2002 of the Commonwealth for an unexplained wealth restraining order283

Form 66RApplication under section 219 of the Proceedsof Crime Act 2002 of the Commonwealth for monitoring order285

Form 66SNotice of contest of application under Proceedsof Crime Act 2002 of the Commonwealth287

Form 67AApplication for warrant288

Form 67BApplication for retrieval warrant290

Form 67CApplication for assistance order292

Form 67DWarrant294

Form 67ERetrieval warrant297

Form 67FAssistance order300

Form 67GEndorsement of assistance order301

Form 69AApplication301

Form 610ANotice of application under section 42l of the Evidence (Miscellaneous Provisions) Act 1958302

Form 610BNotice of application under section 42M, 42N or 42P of the Evidence (Miscellaneous Provisions) Act 1958303

Form 611AApplication for covert search warrant304

Form 611BCovert search warrant305

Form 612AApplication for supervision order307

Form 612BApplication for renewal of supervision order309

Form 612CSupervision order311

Form 612DApplication for detention order313

Form 612EApplication for renewal of detention order315

Form 612FDetention order317

Form 612GApplication for interim supervision order319

Form 612HApplication for extension of interim supervisionorder321

Form 612IApplication for interim detention order323

Form 612JApplication for extension of interim detentionorder325

Form 612KInterim supervision order327

Form 612LOrder extending interim supervision order329

Form 612MInterim detention order330

Form 612NOrder extending interim detention order331

Form 612OApplication by secretary for review ofsupervisionorder332

Form 612PApplication by DPP for review of detention order333

Form 612QApplication for leave to apply for review of supervision order334

Form 612RApplication for leave to apply for review of detention order336

Form 612SApplication for leave to apply for review of conditions of supervision order or interim supervision order338

Form 612TOrder to attend for examination340

Form 612UNotice of appeal by offender341

Form 612VNotice of appeal by Secretary to the Department ofJustice344

Form 612WNotice of appeal by Director of Public Prosecutions346

Form 612XNotice of appeal relating to publication ofinformation348

Form 612YNotice of intention to dispute assessment report, progress report or other report to Court349

Form 612AAApplication for suspension of registrable offender's reporting obligations351

Form 612ABApplication for new order suspending registrable offender's reporting obligations352

Form 612ACApplication by Chief Commissioner of Police for suspension of registrable offender's reporting obligations353

Form 612ADApplication by Chief Commissioner of Police for revocation of order suspending registrable offender's reporting obligations354

Form 613AApplication for coercive powers order355

Form 613BCoercive powers order357

Form 613BAApplication for revocation of coercive powers order359

Form 613BBApplication objecting to disclosure or production of protected information at revocation hearing for coercive powers order360

Form 613CApplication for issue of witness summons362

Form 613DApplication for order under section 18(2) of the Major Crime (Investigative Powers) Act 2004364

Form 613EApplication for extension of period of notice confidential document365

Form 613FApplication to determine legal professional privilege366

Form 614AApplication367

Form 614BApplication368

Form 614COrder369

Form 614DOrder370

Form 615AIdentity crime certificate371

Form 615BNotice to appear under section 89H of the Sentencing Act 1991372

Form 616ANotice of application for suppression order373

Schedule374

Endnotes376

1General information376

2Table of Amendments378

3Amendments Not in Operation381

4Explanatory details382

RulePage

1

Version No. 031


S.R. No. 12/2008

Version incorporating amendments as at29 May 2017

1

Order 1Preliminary

1.01Title and object

(1)These Rules constitute Chapter VI of the Rules of the Supreme Court and are entitled the Supreme Court (Criminal Procedure) Rules 2008.

Rule 1.01(2) amended by S.R. No. 132/2009 rule5(1).

(2)The object of these Rules is to provide certain forms and procedures for matters in the Court under the Crimes Act 1958 and the Criminal Procedure Act 2009 and under other legislation relating to matters of a criminal, quasi-criminal or related nature.

1.02Authorising provisions

These Rules are made under

(a)section 25 of the Supreme Court Act 1986;

Rule 1.02(b) amended by S.R. No. 132/2009 rule5(2).

(b)the Crimes Act 1958;

(c)section 68 of the Sentencing Act 1991;

Rule 1.02(d) amended by S.R. No. 132/2009 rule5(3)(a).

(d)section 50 of the Interpretation of Legislation Act 1984;

Rule 1.02(e) substituted by S.R. No. 132/2009 rule5(3)(b).

(e)the Criminal Procedure Act 2009;

Rule 1.02(f) inserted by S.R. No. 132/2009 rule5(3)(b).

(f)all other enabling powers.

1.03Commencement and revocation

(1)These Rules come into operation on 25 March 2008.

(2)The Rules set out in the Schedule are revoked.

1.04Application of Rules

These Rules apply to all matters in the Court whenever commenced

(a)which relate to the criminal jurisdiction of the Court, whether conferred by an Act or otherwise; and

(b)for which provision relating to the conduct of the matter is made by these Rules.

Rule 1.05 amended by S.R. No. 118/2008 rule5(a).

1.05Definitions

In these Rules, unless the context or subject matter otherwise requires

Rule 1.05 def.of appellant insertedby S.R. No. 6/2011 rule 5.

appellant includes applicant for leave to appeal;

Rule 1.05 def.of barrister inserted by S.R. No. 132/2009 rule6(a), revoked by S.R. No 143/2015 rule5.

*****

Chapter I means Chapter I of the Rules of the Supreme Court;

Rule 1.05 def.of DPP insertedby S.R. No. 6/2011 rule 5.

DPP means the Director of Public Prosecutions for Victoria and includes the Commonwealth Director of Public Prosecutions;

Rule 1.05 def.of legal practitioner inserted by S.R. No. 132/2009 rule6(a).

legal practitioner means the legal practitioner (asdefined in section 3 of the Criminal Procedure Act 2009) who acts for the accused and

(a)where an officer of Victoria Legal Aid so acts, includes such officer;

(b)does not include a barrister, unless these Rules specifically provide otherwise;

Rule 1.05 def.of Registrar inserted by S.R. No. 118/2008 rule5(b), amendedby S.R. Nos 132/2009 rule6(c), 148/2010 rule11.

Registrar means the Registrar of Criminal Appeals and, if the duties and functions of the Registrar of Criminal Appeals are being carried out by an Associate Judge, means that Associate Judge.

Rule 1.05 def.of solicitor revoked by S.R. No. 132/2009 rule6(b).

*****

Rule 1.06 amended by S.R. No. 148/2010 rule12 (ILA s.39B(2)).

1.06Registrar of Criminal Appeals

Rule 1.06(1) revokedby S.R. No. 6/2011 rule6(1).

*****

Rule 1.06(2) inserted by S.R. No. 148/2010 rule12.

(2)For the purpose of exercising any power or function conferred on the Registrar by or under these Rules, the Registrar

(a)may constitute the Court of Appeal; and

(b)may exercise the jurisdiction and powers of the Court of Appeal to the extent necessary to exercise those powers or functions.


(3)The Registrar may nominate one or more suitably qualified officers of the Court of Appeal employed under section 106 of the Act and delegate to such nominated officers the carrying out of the functions and powers of the Registrar in relation to the management of criminal appeals and applications.


(4)An officer referred to in paragraph (3) may exercise the powers and functions of the Registrar in relation to the powers and functions delegated to him or her.

Rule 1.06.1 (Heading) amended by S.R. No. 132/2009 rule7(1).

Rule 1.06.1 inserted by S.R. No. 118/2008 rule6, amended by S.R. No. 132/2009 rule7(2).

1.06.1Associate Judge acting for Registrar

Where circumstances so require, an Associate Judge may hear and determine an application under these Rules instead of the Registrar.

1.07Calculating time

(1)Any period of time fixed by or under these Rules shall be calculated in accordance with this Rule.

(2)If a time of one day or longer is to begin on, or to be calculated from, a day or event, the day or the day of the event shall be excluded.

(3)If a time of one day or longer is to end on, or to be calculated to, a day or event, the day or the day of the event shall be included.

(4)If a period of five days or less would include a day on which the office of the Court is closed, that day shall be excluded.

(5)If the last day for doing any act at the office of the Court is a day on which the office is closed, the act may be done on the next day the office is open.

1.08Extension and abridgement

(1)The Court may extend or abridge any time fixed by or under these Rules.

(2)The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.

Note to rule1.08(2) inserted by S.R. No. 132/2009 rule8.

Note

See also sections 247 and 313 of the Criminal Procedure Act 2009 in relation to time under that Act.

1.09Process in vacation

In calculating the time fixed by or under these Rules, the period from 24 December to 9January next following shall be excluded, unless the Court otherwise orders.

1.10Content and form of documents

(1)Except to the extent that the nature of the document renders compliance impracticable, a document prepared by a party for use in the Court shall be prepared in accordance with Order 27 of Chapter I, other than Rule 27.02.

(2)An affidavit shall be made in the first person and shall be prepared in accordance with Order 43 of Chapter I.

1.11Filing of documents

(1)Subject to paragraph (2), a document in a proceeding to which these Rules relate is filed by filing it

(a)in the office of the Prothonotary or, where a proceeding is commenced in an office of the Court outside Melbourne, in that office; or

(b)with the proper officer in court.

(2)A document in a proceeding in the Court of Appeal is filed by filing it

Rule 1.11(2)(a) amendedby S.R. No. 6/2011 rule6(2).

(a)in the office of the Registrar; or

(b)with the proper officer in court.

(3)The person with whom the document is filed shall indorse on it the date and time of filing.

(4)A document filed in a proceeding to which these Rules relate is not open for inspection unless the Court or the Prothonotary, Deputy Prothonotary or Registrar (as the case requires) so directs.

1.12Subpoenas

Rule 1.12(1) amended by S.R. Nos 132/2009 rule9(1), 23/2010 rule10(1), 39/2012 rule 6, 141/2016 rule5.

(1)Subject to this Rule and Rule 1.12.1, Order 42 and Order 42A of Chapter I apply with any necessary modification to a proceeding to which these Rules relate, except an appeal or an application for leave to appeal.

Rule 1.12(1.1) inserted by S.R. No. 34/2017 rule 5.

(1.1)For the purposes of Rule 42.09(3) of ChapterI, as applied by paragraph (1)

(a)a judicial registrar may hear and determine an application for leave to inspect a document or thing produced, where there is no objection to the inspection;

(b)the judicial registrar constitutes the Trial Division of the Court; and

(c)all the powers of the Trial Division of the Court to hear and determine such an application are delegated to the judicial registrar.

(2)In a proceeding to which these Rules relate (except an appeal or an application for leave to appeal), a subpoena shall be in accordance with Form 61A.

Rule 1.12(3) inserted by S.R. No. 132/2009 rule9(2).

(3)A subpoena in a proceeding to which these Rules relate shall be served personally by giving a copy of the subpoena to the person to be served.


(4)In a proceeding to which these Rules relate, the issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form61B.


(5)The addressee must

(a)complete the notice and declaration referred to in paragraph (4); and

(b)attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.


(6)Subject to paragraph (7), the Prothonotary may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.


(7)The Prothonotary may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.

Rule 1.12.1 inserted by S.R. No. 39/2012 rule 7.

1.12.1SubpoenasTrans-Tasman Proceedings Act2010

(1)In relation to a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies, Order 7A of Chapter I applies with any necessary modification to a proceeding to which these Rules relate, except an appeal or an application for leave to appeal.

(2)In relation to a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies (except an appeal or an application for leave to appeal) a subpoena shall be in accordance with

(a)Form6-1BA, for a subpoena to give evidence;

(b)Form6-1BB, for a subpoena to produce documents;

(c)Form6-1BC, for a subpoena to give evidence and produce documents.

(3)A subpoena in a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies shall be served personally by giving a copy of the subpoena to the person to be served.

Rule 1.12.2 insertedby S.R. No. 206/2014 rule8.

1.12.2Procedure under the Vexatious Proceedings Act2014

Order 83 of Chapter I applies with any necessary modification to, and in relation to, a proceeding to which these Rules relate.

1.13Authentication

(1)A judgment or order of the Court in a proceeding to which these Rules relate may be authenticated in accordance with this Rule.

Rule 1.13(2) amended by S.R. Nos 100/2008 rule23, 39/2015 rule5.

(2)Subject to paragraph (3), a judgment or order of the Court is authenticated when the judgment or order, having been drawn up, is signed by a Judge of the Court, an Associate Judge or a judicial registrar, as the case requires, or sealed by the Prothonotary.

Rule 1.13(3) amendedby S.R. No. 6/2011 rule6(3).

(3)In a proceeding in the Court of Appeal, a judgment or order of the Court is authenticated when the judgment or order, having been drawn up, is signed by a member of the Court of Appeal or the Registrar.

1.14Amendment of judgment or order

For the sake of removing doubt, it is declared that the inherent power of the Court to correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission may be exercised at any time.

Rule 1.15 (Heading) amended by S.R. No. 132/2009 rule10(1).

1.15Effect of non-compliance and dispensing with compliance

(1)A failure to comply with these Rules is an irregularity and does not render a proceeding or step taken, or any document, judgment or order in a proceeding a nullity.

(2)The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

Rule 1.15(2.1) inserted by S.R. No. 148/2010 rule13.

(2.1)Without limiting paragraph (2), the Registrar may dispense with compliance with any of the requirements of these Rules in relation to criminal appeals, either before or after the occasion for compliance arises.


(3)Except as provided by these Rules, a failure to comply with these Rules or with any rule of practice in force under the Criminal Procedure Act 2009 shall not prevent the prosecution of an appeal or an application for leave to appeal if the Court considers that, in the interests of justice, the failure should be waived or remedied and the matter proceed.

Rule 1.16 inserted by S.R. No. 100/2008 rule24.

1.16Exercise of jurisdiction by Judge of the Court or Court of Appeal

Unless these Rules specifically provide otherwise, any application and the exercise of any powers and authorities in relation to a proceeding or any other matter to which these Rules apply shall be heard and determined by the Trial Division constituted by a Judge of the Court or the Court of Appeal, as the case requires.


1.17Notices to be signed

Subject to the Criminal Procedure Act 2009 and to these Rules, a notice given under these Rules shall be signed

Rule1.17(a) amendedby S.R. No. 6/2011 rule7.

(a)by the appellant;

Rule1.17(b) amendedby S.R. No. 6/2011 rule7.

(b)by a legal practitioner on behalf of the appellant; or

Rule1.17(c) amendedby S.R. No. 6/2011 rule7.

(c)by a barrister on behalf of the appellant.


1.18General applications

If a party to a criminal proceeding intends to make an application and there is no form prescribed by any Rules or by or under any Act for such an application, a general application in Form 61C may be used with such modification as is necessary.

__________________

Order 2 (Headings and rules 2.012.35) amended by S.R. Nos 118/2008 rules7, 8, 150/2008 rule4, substituted as Order 2 (Headings and rules 2.012.54) by S.R. No. 132/2009 rule12 (as amended by S.R. No. 145/2009 rules46(1)).

Order 2Criminal appeals

Part 1Preliminary

Rule 2.01 substituted by S.R. No. 132/2009 rule12(as amended by S.R. No. 145/2009 rule4).

2.01Definitions

(1)In this Order, unless the context or subject matter otherwise requires, the Act means the Criminal Procedure Act 2009.

(2)In this Order, unless the context or subject matter otherwise requires

Rule 2.01(2) def. of Crown appeal amendedby S.R. No. 6/2011 rule8.

Crown appeal means an appeal brought by the DPP;

examiner means a person appointed by the Court of Appeal under section 318 of the Act;

exhibit includes

(a)all books, papers and documents and all other property connected with the proceedings against any person entitled or authorised to appeal, which were sent to the originating court upon committal or produced and read in evidence during trial or other proceedings; and

(b)any written statement delivered to a trial judge by that person

but does not include

(c)the original depositions of witnesses examined at a preliminary examination, committal or before a coroner; and

(d)any indictment or written process against an accused; and

(e)any plea filed in the originating court;

recording officer of the originating court means the officer who has custody of the records of the originating court;

respondent means the person who defends an appeal.

Rule 2.02 substituted by S.R. No. 132/2009 rule12, amendedby S.R. No. 6/2011 rule9.

2.02Single judge

A Judge of Appeal may exercise any power of the Court of Appeal under Rules 1.15(2) or (3), 2.04(4), 2.15(5), 2.26(2) and 2.27(2), (3) or (4).

Note

See section 315 of the Act for powers which may be exercised under Part 6.3 of Chapter 6 of the Act by a single Judge of Appeal.

Rule 2.03 substituted by S.R. Nos 132/2009 rule12, 6/2011 rule10.

2.03Jurisdiction and powers exercisable by two Judges of Appeal

(1)Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal in appeals from the County Court under Divisions 2 and 4 of Part 6.3 of Chapter 6 of the Act.

Note

See Order 3 for interlocutory appeals under the Criminal Procedure Act 2009.

(2)Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal to dismiss an appeal or an application for leave to appeal

(a)for noncompliance with this Order; or

(b)if it is otherwise appropriate to do so.

(3)Two Judges of Appeal may make any order or give any direction incidental or ancillary to the exercise by them of the jurisdiction and powers of the Court of Appeal.

Rule 2.04 substituted by S.R. No. 132/2009 rule12.

2.04Legal practitioners

(1)A legal practitioner who, on behalf of an appellant, files a notice of appeal or a notice of application for leave to appeal under this Order shall state in the notice

(a)that the legal practitioner is acting for the appellant;

Rule 2.04(1)(b) amended by S.R. No. 48/2013 rule7.

(b)the contact details of the legal practitioner, including name, address, telephone number, fax number and email address; and

(c)the relevant name and address for service.

(2)The practitioner shall be noted in the records of the Court as acting for the appellant.

(3)Subject to paragraph (4), if a legal practitioner ceases to act for an appellant, the practitioner shall forthwith

(a)file notice of ceasing to act for the appellant; and

(b)serve a copy of the notice on the respondent.

(4)Unless another legal practitioner has filed a notice that that practitioner is now acting for the appellant, a practitioner may not file notice of ceasing to act without first obtaining the leave of

(a)the Registrar; or

(b)if leave is refused by the Registrar, the Court of Appeal.

PART 2COMMENCEMENT OF APPEALS UNDER DIVISIONS1 AND2 OF PART6.3 OF CHAPTER 6 OF THE CRIMINAL PROCEDURE ACT2009


2.05Application for leave to appeal against conviction or sentence

(1)An application for leave to appeal against conviction under section 274 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 62A.

Note

Section 275(1) of the Act requires the notice of application for leave to appeal to be filed within 28days after the day on which the person is sentenced, subject to any extension under section 313 of the Act.

(2)An application for leave to appeal against sentence under section 278 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 62B.

Note

Section 279(1) of the Act requires the notice of application for leave to appeal to be filed within 28days after the day on which the person is sentenced, subject to any extension under section 313 of the Act.

(3)An application for leave to appeal against sentence under section 283 of the Act is commenced by filing with the Registrar a notice of application for leave to appeal in Form 62C.

Note

Section 284 of the Act requires the notice of application for leave to appeal to be filed within 28days after the day on which the person is sentenced by the County Court, subject to any extension under section 313 of the Act.

(4)A notice of application for leave to appeal shall

(a)state each ground of appeal specifically and concisely, and not merely in general terms; and

(b)be accompanied by a written case in support of the application in accordance with any applicable Practice Direction.


2.06Application may be determined by single Judge of Appeal

An application for leave to appeal against conviction or sentence may be determined by the Court of Appeal constituted by either

(a)a single Judge of Appeal in accordance with section 315 of the Act; or

(b)two or more Judges of Appeal in accordance with section 11 of the Supreme Court Act 1986.


2.07Procedure for determination of application by single Judge of Appeal

(1)An application for leave to appeal may be determined by a single Judge of Appeal in accordance with this Rule.

(2)Subject to paragraphs (4) and (5), a single Judge of Appeal may without an oral hearing

(a)determine an application for leave to appeal and

(i)grant leave to appeal;

(ii)grant leave to appeal on some grounds of appeal and refuse leave to appeal on other grounds of appeal;

(iii)refuse leave to appeal; or

(b)refer the application for leave to appeal for determination by the Court of Appeal comprising two or more Judges of Appeal of whom the referring Judge of Appeal may be one.

(3)If a single Judge of Appeal determines an application for leave to appeal without an oral hearing and makes an order

(a)of a kind referred to in paragraph (2)(a)(i) or(2)(b), the Registrar shall notify the appellant in Form 62DA; or

(b)of a kind referred to in paragraph (2)(a)(ii) or(2)(a)(iii), the Registrar shall notify the appellant in Form62DB.

(4)An appellant

(a)may request an oral hearing of the application by completing the Oral Hearing Option section of the notice of application for leave to appeal; and

(b)if an oral hearing is requested, must confirm that request in writing to the Registrar, in accordance with any applicable Practice Direction.

(5)If an appellant requests an oral hearing and confirms that request in accordance with paragraph (4), the application shall not be determined without an oral hearing.


2.08Procedure for renewal of application

(1)An application for leave to appeal may be renewed in accordance with this Rule.

(2)Where the Registrar has notified an appellant that leave to appeal has been refused in whole or in part, the appellant may elect under section 315 of the Act to renew the application for leave to appeal by completing and returning to the Registrar within 10 days of that notification an election form as contained in Form 62DB.

(3)Subject to paragraphs (5) and (6), the renewed application shall be considered by the Court of Appeal comprising at least two Judges of Appeal who may, without an oral hearing

(a)grant leave to appeal;

(b)grant leave to appeal on some grounds of appeal and refuse leave to appeal on other grounds of appeal;

(c)refuse leave to appeal; or

(d)refer the application for determination by the Court of Appeal comprising not fewer than three Judges of Appeal, who may include either or both of the referring judges.

(4)If the Court of Appeal makes an order of the kind referred to in paragraph (3), the Registrar shall notify the appellant in Form62DC.

(5)An appellant who elects to renew an application for leave to appeal

(a)may request an oral hearing of the application by completing the Oral Hearing Option section of the election form in Form62DC; and

(b)if an oral hearing of the application is requested, must confirm that request in writing to the Registrar, in accordance with any applicable Practice Direction.

(6)If an appellant requests an oral hearing of the application and confirms that request in accordance with paragraph (5), the renewed application shall not be determined without an oral hearing.


2.09Powers of determination

(1)If an application is referred to the Court of Appeal under Rule 2.07(2)(b) or 2.08(3)(d), the Court of Appeal, however constituted, may exercise any powers set out in Rules2.06, 2.07 and 2.08.

(2)If an appellant makes an initial request for an oral hearing of an application and confirms that request in writing to the Registrar in accordance with any applicable Practice Direction, that request must be complied with in determining any application referred under Rule 2.07(2)(b) or2.08(3)(d).


2.09.1Application may be treated as appeal

Subject to this Order, the Court of Appeal may treat the hearing of the application as the hearing of the appeal.


2.09.2No notice of appeal when leave is granted

If the Court of Appeal gives leave to appeal, the notice of application for leave to appeal is sufficient notice of appeal.

Rule 2.10 substituted by S.R. No. 132/2009 rule12, revokedby S.R. No. 6/2011 rule12.

*****

Rule 2.11 substituted by S.R. No. 132/2009 rule12, revokedby S.R. No. 6/2011 rule13.

*****


2.12Unrepresented appellant

If an appellant is unrepresented a document may be served by the appellant by delivering to the Registrar at the time of filing an extra copy of the document marked for service upon the respondent.

Rule 2.13 substituted by S.R. Nos 132/2009 rule12(as amended by S.R. No. 145/2009 rule5), 6/2011 rule15.

2.13Registrar may vacate hearing date or refer for dismissal

(1)If the Registrar is satisfied that an appellant has not complied with the requirements of this Order or that it is otherwise appropriate to do so, the Registrar may

(a)vacate any hearing date set for the application or appeal; or

(b)refer the application or appeal to be dismissed in accordance with Rule2.03(2).

(2)Paragraph (1) is not to be taken to limit any other powers of the Registrar.

(3)The Registrar shall notify the appellant in writing of the decision under paragraph (1).


2.14.Transitional provisionsSupreme Court (ChapterVI Amendment No. 6) Rules 2011

(1)Subject to any direction of the Registrar or the Court, these Rules as in force on and from 28February 2011 apply to any application for leave to appeal or any appeal commenced but not determined before 28February 2011.

(2)The Court of Appeal may reinstate any appeal or application for leave to appeal which stood dismissed under Rule 2.13 as in force immediately before 28 February 2011 in accordance with that Rule as if it had not been substituted by the Supreme Court (Chapter VI Amendment No. 6) Rules 2011.

PART 3APPEALS UNDER DIVISION 3 OF PART6.3 OF CHAPTER6 OF THE CRIMINAL PROCEDURE ACT 2009


2.15Crown appeals

(1)A notice of appeal by the DPP shall

(a)be filed with the Registrar;

(b)state each ground of appeal specifically and concisely and not merely in general terms; and

(c)be accompanied by a written case in support of the appeal in accordance with any applicable Practice Direction.

Note

Section 288(1) of the Act requires the notice of appeal to be filed within 28 days after the day on which the sentence is imposed, subject to any extension under section 313 of the Act.

(2)The DPP shall serve the written case on the respondent at the time of service of the notice of appeal.

Note

Section 288(3) of the Act requires a notice of appeal against a sentence imposed by an originating court to be served on the respondent within seven days after the day on which the notice is filed.

Section 292(3) of the Act requires a notice of appeal for failure to fulfil an undertaking to be served on the respondent within 14 days after the day on which the notice is filed.

(3)Within seven days after serving on the respondent the notice of appeal and written case, the DPP shall file an affidavit of service.

(4)Within one month after service of the documents referred to in paragraph (2), the respondent may file and serve a written case which must comply with any applicable Practice Direction.

(5)The notice of appeal may be amended only with leave of the Court of Appeal.

PART 4APPLICATIONS UNDER DIVISION 5 OF PART6.3 OF CHAPTER6 OF THE CRIMINAL PROCEDURE ACT 2009


2.16Refusal to reserve question of lawapplication to show cause

An application under section 304 of the Act for an order to show cause why a question of law should not be reserved for determination by the Court of Appeal is commenced by filing with the Registrar an application in Form 62E.


2.17Applicant to file affidavit

(1)Within seven days after filing an application under Rule 2.16, the applicant shall file an affidavit stating the acts, facts, matters and circumstances relating to

Rule 2.17(1)(a) amendedby S.R. No. 6/2011 rule18.

(a)the refusal of the application under section302 of the Act;

(b)the grounds set out in the application as to why the question should be reserved for determination by the Court of Appeal.

(2)There shall be included as exhibits to the affidavit

Rule 2.17(2)(a) amendedby S.R. No. 6/2011 rule18.

(a)a copy of the order refusing the application under section 302 of the Act; and

(b)a copy of any reasons given for the refusal

or their absence as exhibits shall be accounted for in the affidavit.

PART 5APPEALS UNDER CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT1997

Rule 2.17.1 inserted by S.R. No. 207/2014 rule5.

2.17.1Application of this Part

This Part of this Order does not apply to Part5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.


2.18Commencement of appeal against finding that accused is unfit to stand trial

(1)An application for leave to appeal against a finding that an accused is unfit to stand trial is commenced by filing with the Registrar a notice of application for leave to appeal in Form 62F.

Note

Section 14A(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 requires the notice of application for leave to appeal to be filed within 28days after the day on which the finding is made, subject to any extension under that Act.


(2)The notice of application for leave to appeal shall state each ground of appeal specifically and concisely and not merely in general terms.


2.19Commencement of appeal against verdict of not guilty because of mental impairment

(1)An application for leave to appeal against a verdict of not guilty because of mental impairment is commenced by filing with the Registrar a notice of application for leave to appeal in Form 62G.

Note

Section 24AA(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 requires the notice of application for leave to appeal to be filed within 28days after the day on which the finding is made, subject to any extension under that Act.


(2)The notice of application for leave to appeal shall state each ground of appeal specifically and concisely and not merely in general terms.


2.20Application may be treated as appeal

The Court of Appeal may treat the hearing of the application as the hearing of the appeal.


2.21No notice of appeal when leave is granted

If the Court of Appeal gives leave to appeal, the notice of application for leave to appeal is sufficient notice of appeal.

PART 6APPLICATIONS UNDER DIVISION 7 OF PART6.3 OF CHAPTER6 OF THE CRIMINAL PROCEDURE ACT 2009


2.22Application for extension of time

A notice of application for extension of time under section 313 of the Act shall be

(a)in Form 62H; and

(b)filed when the notice of appeal or notice of application for leave to appeal is filed in accordance with this Order.

Note

See section 313 of the Act.


2.23Extension of time before Registrar

(1)An application for an order under section313 of the Act for extension of time shall be made in the first instance to the Registrar.

Rule 2.23(2) amendedby S.R. No. 6/2011 rule20(a).

(2)The Registrar shall notify the applicant of the decision in writing.

(3)If an application is refused

Rule 2.23(3)(a) amendedby S.R. No. 6/2011 rule20(b).

(a)the Registrar shall notify the applicant, in Form 62I; and

(b)the applicant may elect to have the application determined by the Court of Appeal.

Note

See section 313(2) of the Act.

Rule 2.23(4) amendedby S.R. No. 6/2011 rule20(c).

(4)If in the course of deciding to refuse the application the Registrar has considered an affidavit or other material from the Crown, the Registrar may, if the material has not already been served, provide the applicant with a copy of that material when notifying the applicant of the decision.


2.24Extension of timeapplication under section313(2)

(1)An election under Rule 2.23(3) shall be by notice in Form 62J, a copy of which the Registrar shall forward to the applicant when notification is given under Rule 2.23(3).

(2)The applicant must return the notice under paragraph (1) to the Registrar within 10days after receiving it.

(3)If a notice is returned to the Registrar in accordance with paragraph (2), the Registrar shall notify the applicant in writing

(a)that the notice has been received; and

(b)when appropriate, the day fixed for the hearing.


2.25Application under section 315refusal of Judge of Appeal to exercise powers

(1)If an application made to a Judge of Appeal under section 315 of the Act is refused by the Judge

(a)the Registrar shall notify the applicant of the decision in Form 62D; and

Rule2.25(1)(b) amendedby S.R. No. 6/2011 rule22(1).

(b)the applicant may elect to have the application determined by the Court of Appeal constituted by at least two judges.

Rule2.25(2) amendedby S.R. No. 6/2011 rule22(2).

(2)An election under paragraph (1) shall be by notice in Form 62K (with any necessary modification) a copy of which the Registrar shall forward to the applicant.

(3)The applicant must return the notice under paragraph (2) to the Registrar within 10days after receiving it.

(4)If notice under paragraph (2) is returned to the Registrar in accordance with paragraph (3), the Registrar shall notify the applicant in writing that

(a)the notice has been received; and

Rule2.25(4)(b) amendedby S.R. No. 6/2011 rule22(3).

(b)when appropriate, the day fixed for the hearing.

(5)If notice under paragraph (2) is not returned to the Registrar in accordance with paragraph (3), the Registrar shall confirm to the applicant in writing that

Rule2.25(5)(a) amendedby S.R. No. 6/2011 rule22(4).

(a)the application made under section 315 of the Act was refused; and

(b)no notice of election has been received.

PART 7REFERENCE TO COURT OF APPEAL ON PETITION OF MERCY


2.26Reference on petition of mercy

Rule2.26(1) amendedby S.R. No. 6/2011 rule23(1).

(1)If the Attorney-General refers a case to the Court of Appeal under section 327(1)(a) of the Act, for the purposes of the Act and this Order, the petitioner whose case is referred shall be taken to be a person who has obtained leave to appeal.

Rule2.26(2) substitutedby S.R. No. 6/2011 rule23(2).

(2)Unless otherwise directed by the Court of Appeal, the petition shall stand in place of a notice of appeal.

(3)If the Attorney-General refers a point to the judges of the Trial Division under section327(1)(b) of the Act, the point may be considered in private.

PART 8PROCEDURES


2.27Time

(1)If the last day for doing any act under this Order is a day on which the office of the Court is closed, the act may be done on the next day the office is open.

(2)The Court of Appeal or the Registrar may abridge or extend time under this Order before the time expires.

Rule2.27(3) amendedby S.R. No. 6/2011 rule24.

(3)The Court of Appeal or the Registrar may abridge or extend time under this Order after the time has expired.

(4)When extending time the Court of Appeal or the Registrar may impose conditions or give directions.

Note

See also section 313 of the Act.


2.28Fine and imprisonment in defaultfine paid to be retained pending appeal

(1)If a person has been convicted and sentenced to pay a fine and in default of payment sentenced to imprisonment, the person authorised to receive the fine shall retain it until determination of any related appeal.

(2)Subject to any order of the Court of Appeal, a person who has paid a fine in accordance with a sentence shall, if the appeal is successful, be entitled to the return of the fine paid.

(3)A person who remains in custody in default of payment of a fine shall be taken to be a person sentenced to imprisonment for the purposes of the Act and this Order.


2.29Procedure for appeal where fine and imprisonment in default

(1)If a person who has been convicted and sentenced to pay a fine and in default of payment sentenced to imprisonment intends to appeal to the Court of Appeal on grounds of law alone, this Rule applies.

(2)If this Rule applies

(a)the person convicted and sentenced shall inform the trial judge of the intention to appeal;

(b)the trial judge may, if of the opinion that it is appropriate, order the intending appellant immediately to enter into a recognizance in Form 62L, with or without sureties, to prosecute the appeal;

(c)the person convicted and sentenced shall within the relevant time period set out in the Act for the type of appeal, file a notice of appeal in accordance with this Order; and

(d)the person convicted and sentenced shall, if necessary, file an application under section313 of the Act for extension of time.

(3)If the intending appellant fails to comply with paragraph (2)(c), the Registrar shall report the failure to the Court of Appeal which may, after notice has been given to the intending appellant and any sureties

(a)order forfeiture of the recognizances and payment of the amount of the recognizances to the Registrar immediately;

(b)issue a warrant for the arrest of the intending appellant;

(c)order the imprisonment of the intending appellant in default of payment of the fine; and

(d)make any other order it thinks appropriate.


2.30Pre-hearing conference

Rule2.30(1) revokedby S.R. No. 6/2011 rule25(1).

*****

Rule2.30(2) substitutedby S.R. No. 6/2011 rule25(2).

(2)The Registrar may conduct such pre-hearing conferences and give such directions with respect to the preparation for hearing of an application for leave to appeal or an appeal as the Registrar thinks appropriate for the effective, complete and prompt disposal of the proceeding.

(3)If the appellant is not represented and is in custody, the Registrar may conduct any prehearing conference with the parties separately.

(4)In relation to a Crown appeal, paragraph (3) shall be read and construed as if the word "appellant" were "respondent".


2.31Transcript of trial

Rule 2.31(1) amended by S.R. Nos 146/2009 rule10(1), 6/2011 rule26(1).

(1)At any time after the filing of a notice of appeal or notice of application for leave to appeal, the Registrar may direct the shorthand writers who made notes of the trial from which the appeal or application is brought or the persons who recorded the trial by mechanical means under the Evidence (Miscellaneous Provisions) Act 1958 to provide a transcript in unrevised form of the whole or any part of the notes or recording of the trial in writing or electronic form.

(2)For the purposes of paragraph (1), the Registrar may direct that the transcript be made by a competent person or persons other than the person or persons who took the notes or recorded the trial.

(3)Any transcript required by this Rule

(a)may be produced in writing or electronic form as the Registrar considers appropriate in any case and as he or she directs; and

Rule 2.31(3)(b) amended by S.R. No. 146/2009 rule10(2).

(b)shall be certified in accordance with the Evidence (Miscellaneous Provisions) Act 1958.

Rule 2.31(4) revoked by S.R. No. 6/2011 rule26(2).

*****


2.32Preservation of exhibits

Rule 2.32(1) amendedby S.R. No. 6/2011 rule27(1)(a).

(1)The trial judge may make any order or give any direction considered appropriate for the production, custody or disposal of exhibits and the recording officer of the originating court shall keep a record of any such order or direction, but if no order is made or direction given

(a)all exhibits tendered on behalf of the prosecution shall be returned to the custody of the prosecution and shall be retained pending any appeal; and

Rule 2.32(1)(b) amendedby S.R. No. 6/2011 rule27(1)(b).

(b)any exhibit tendered at a trial otherwise than by the prosecution shall be retained by the Associate to the trial judge for 60days after which the Associate shall return that exhibit to the person who produced it.

(2)If the Registrar gives the prosecution a direction to produce an exhibit, the prosecutor shall produce the exhibit as directed.


(3)If within 60 days the Registrar gives an Associate a direction to produce an exhibit, the Associate shall produce the exhibit as directed.

Rule 2.33 substituted by S.R. No. 132/2009 rule12, amendedby S.R. No. 6/2011 rule28(1).

2.33Copies of transcript, exhibits etc.

The appellant or the respondent or his or her legal practitioner or representative

(a)may obtain from the Registrar a copy of the transcript of the trial, in writing or electronic form, as the case requires, that the Registrar has directed to be provided under Rule2.31(1);

(b)may obtain from the Registrar a copy of any document which was an exhibit at the trial; and

(c)may inspect by arrangement with the Registrar any exhibit which cannot be copied.


2.34Return of exhibits after hearing

(1)When an appeal is finally determined, the Court of Appeal may make orders as to the return of exhibits as it thinks appropriate.

(2)If no order is made, each exhibit shall be returned to the person who tendered it unless

(a)it is a document of a kind kept by the recording officer of the court of trial; or

(b)it is an exhibit to which section 311 of the Act applies.


(3)The Registrar shall return to the recording officer of the originating court any original depositions, exhibits, presentment, indictment, inquisition, plea or other document forming part of the record of the originating court which was given to the Registrar for the purposes of the appeal.


2.35Certificate of conviction

(1)The recording officer of an originating court may not issue a certificate of conviction until

Rule 2.35(1)(a) amended by S.R. No. 55/2010 rule6.

(a)35 days after the date of conviction; or

Rule 2.35(1)(b) amendedby S.R. No. 6/2011 rule29.

(b)if the recording officer receives notice from the Registrar that a notice of appeal or of application for leave to appeal has been filed, the determination of the appeal or refusal of leave to appeal.

(2)A person who seeks a certificate of conviction may obtain a certificate from the Registrar stating that no appeal or application for leave to appeal is pending.

Rule 2.35(3) amended by S.R. No. 55/2010 rule6.

(3)A certificate under paragraph (2) may not be given until 35 days after the date of conviction.


2.36Attendance of appellant

Rule 2.36(1) substituted by S.R. No. 6/2011 rule30.

(1)The appellant is entitled to attend the hearing of an appeal or an application for leave to appeal unless the Court of Appeal or a Judge of Appeal directs otherwise or these Rules otherwise provide.

(2)If the appellant does not attend in court on the hearing, the appeal or the application may be heard and determined in the appellant's absence.

(3)If the appellant so elects, he or she may attend before the Court by appearance by audiovisual link, if it is practicable to do so.

(4)In relation to a Crown appeal, this Rule shall be read and construed as if the word "appellant" were "respondent".

Rule2.36(5) insertedby S.R. No. 120/2011 rule4.

(5)The Registrar may constitute the Court of Appeal for the purposes of making an order to bring an appellant who is in custody before the Court pursuant to

(a)regulations made under the Corrections Act 1986; or

(b)section 490 of the Children, Youth and Families Act 2005.

Rule2.36(6) insertedby S.R. No. 120/2011 rule4.

(6)For the purposes of paragraph (5), the powers of the Court of Appeal to make an order referred to in that paragraph are delegated to the Registrar.

Rule 2.37 inserted by S.R. No. 132/2009 rule12, revokedby S.R. No. 6/2011 rule31.

*****


2.38Bail

Rule 2.38(1) amendedby S.R. No. 6/2011 rule32.

(1)If the Court of Appeal grants an appellant bail under section 310 of the Act, the Court may make such orders in relation to bail as it sees fit.

Note

Under section 315(1)(e) of the Act, this power of the Court of Appeal may be exercised by a single Judge of Appeal.

(2)An appellant who is on bail shall, when the appeal is called on before the Court of Appeal, place himself or herself in the custody of such persons as the Court directs.

Note

See section 323 of the Act for bail following an appeal.

Rule 2.39 inserted by S.R. No. 132/2009 rule12, substitutedby S.R. No. 6/2011 rule33.

2.39Registrar to notify determination

(1)Upon the determination of an appeal or of any matter under section315 of the Act, the Registrar shall give notice of the result in Form 62M to

(a)the appellant;

(b)the DPP;

(c)the governor of the prison (if any) in which the appellant is imprisoned;

(d)the Secretary to the Department of Justice; and

(e)the officer of the originating court.

(2)The Registrar shall also notify the officer of the originating court of any additional orders or directions made or given by the Court of Appeal.


2.40Notice of abandonment

(1)Subject to Rule 2.49(2), for the purposes of section 314 of the Act an appeal (including an application for leave to appeal or a Crown appeal) or an application for extension of time may be abandoned at any time before the hearing of an appeal is commenced by filing with the Registrar a notice of abandonment in Form 62N.

(2)A notice of abandonment

(a)shall be signed by the appellant personally; and

(b)the appellant's signature shall be witnessed by another person whose name and address shall be stated clearly and legibly on the notice of abandonment.


2.41Abandonment

(1)An appeal or application shall be taken to be dismissed on the date the notice of abandonment is filed.

Rule2.41(2) revokedby S.R. No. 6/2011 rule34.

*****


2.42Report from trial judge

(1)If a report is required under section 316 of the Act, a trial judge shall comply with the requirement promptly.

(2)When requiring a trial judge to provide a report under section 316 of the Act, the Registrar shall send the trial judge

(a)a copy of the notice of appeal or of the application for leave to appeal;

(b)any other document the Registrar thinks material; and

(c)any other document

(i)the Court of Appeal decides should be sent to the trial judge; or

(ii)that the trial judge requests.

Rule 2.42(3) substitutedby S.R. No. 6/2011 rule35.

(3)Where amended grounds of appeal are filed after a report has been required, the Registrar shall as soon as practicable send the trial judge a copy of the amended grounds and the written case, if amended.

Rule 2.42(4) insertedby S.R. No. 6/2011 rule35.

(4)The Court of Appeal may determine an appeal without a report from a trial judge if it thinks it is appropriate to do so.


2.43Original depositions, exhibits etc.

Without limiting section 317 of the Act, the Registrar may require the recording officer of the originating court to provide to the Registrar

(a)the original depositions of witnesses examined before the committing magistrate or coroner;

(b)any exhibit retained by a court;

(c)the indictment or other written process against the appellant;

(d)an abstract or copy of the whole or part of the indictment;

(e)any plea filed in the originating court.


2.44Witnesses before Court of Appealsection318

(1)If the Court of Appeal orders any witness to attend and be examined before the Court under section318 of the Act

(a)the order shall specify the time and place when the witness is to attend; and

(b)the order shall, unless otherwise ordered, be served by giving a copy of the order to the person to be served.

(2)If an appellant is not legally represented and seeks an order under section 318 of the Act, the appellant shall file an application in Form62O with the Registrar.

(3)The Registrar shall send a copy of an application under paragraph (2) to the legal practitioner for the respondent.

Rule 2.44(4) substituted by S.R. No. 55/2010 rule7.

(4)The oath or affirmation to be administered to any witness whose evidence is to be tendered under section 318 of the Act shall be in accordance with the Evidence Act 2008, unless the Court otherwise permits or directs.

Rule 2.45 inserted by S.R. No. 132/2009 rule12(as amended by S.R. No. 145/2009 rule6(1)).

2.45Examination other than by court under section318(2)

(1)If the Court of Appeal orders the examination of a witness to be conducted otherwise than by the Court under section 318(2) of the Act, the order shall specify

(a)the person appointed as examiner; and

(b)the witnesses to be examined.

(2)The Registrar shall give the examiner any documents, exhibits and other material relating to the appeal which the examiner requests.

(3)The examiner shall

(a)appoint the day, time and place for the examination; and

(b)request the Registrar to give notice in Form62P to

(i)the appellant;

(ii)the respondent;

(iii)their legal practitioners; and

(iv)if the appellant is in custody, the governor of the prison.

(4)A notice sent by the Registrar under paragraph (3) shall be taken to be an order of the Court.

(5)The examiner shall administer the oath before taking evidence from any witness except where the witness would not need to be sworn if giving evidence on a trial on indictment.

(6)Unless the Court otherwise orders, any examination under this Rule shall be in private and depositions shall be taken.

(7)After an examination is completed the examiner shall send or cause to be sent to the Registrar the depositions and all documents, exhibits and other material provided by the Registrar.

(8)The appellant and respondent and their legal representatives shall be entitled to be present and to take part in the examination.

(9)A police officer, if of the opinion that it is necessary, may pay travelling expenses to a witness upon whom the police officer serves

(a)an order to appear before the Court of Appeal; or

(b)a notice to attend before an examiner.

(10)Travelling expenses paid by a police officer shall be certified by the officer to the Registrar who shall certify the sum paid as part of the expenses of the prosecution.

(11)Any order or notice required by this Rule to be served shall be served personally unless the Court otherwise orders.


2.46Special commissionerssection 320

(1)The Court of Appeal, by order, may appoint a special commissioner under section 320 of the Act.

(2)An order under paragraph (1) shall specify

(a)the person who is to be the special commissioner; and

(b)the question referred to the special commissioner.

(3)An order under paragraph (1) may

(a)specify whether the appellant or the respondent or their legal representatives is or are to be entitled to attend during all or part of the examination or investigation;

(b)specify which powers (if any) of the Court of Appeal may be exercised by the special commissioner;

(c)require the special commissioner to make interim reports upon the matter referred by the Court of Appeal;

(d)give the appellant, if imprisoned, leave to attend during the whole or any part of the examination or investigation and give the necessary directions to the governor of the prison; and

(e)direct the Registrar to give copies of the special commissioner's report to the appellant and the respondent or to their legal representatives.

(4)Where an order under section 320 does not give directions as to any of the matters referred to in paragraph (1), the Court of Appeal may from time to time give directions in relation to any such matters as it thinks fit.

Note

See section 320(3) of the Act as to remuneration of special commissioners and section 326 as to expenses.


2.47Entitlement to hearing when restitution order or compensation order made

If an order referred to in section 311(1) of the Act was made at a trial

(a)a person against whom the order was made;

(b)a person in whose favour the order was made; and

(c)with the leave of the Court of Appeal, any other person

may be heard by the Court of Appeal at the hearing of an appeal before any order under section 311(3) or (4) of the Act is made.


2.48Property subject to restitution order or compensation order

For the purposes of section 311(5) of the Act, the trial judge or the Court of Appeal may give any direction considered proper

(a)for securing the safe custody during the appeal period of property or of a money sum the subject of a restitution order or compensation order; or

(b)as to the production of any such property or money sum at an appeal.


2.49Security may be ordered

(1)If the trial judge makes an order referred to in section 311(1) of the Act for restitution or for the payment of compensation, the trial judge may direct that the order take effect immediately unless security is given to the satisfaction of the person in whose favour the order is made.

(2)A direction under paragraph (1) may be given notwithstanding that the order would otherwise be stayed under section 311 of the Act or Rule 2.48.


2.50Property subject to order for forfeiture or destruction

For the purposes of section 312(3) of the Act, the trial judge or the Court of Appeal may give any direction considered proper

(a)for securing the safe custody during the appeal period of property the subject of a forfeiture order or destruction order; or

(b)as to the production of any such property at an appeal.


2.51Custody of property of convicted person

The trial judge or the Court of Appeal may make orders or give directions as to the custody, for the appeal period, of any money or other valuable property belonging to a convicted person which

(a)was taken from the convicted person when arrested; or

(b)is in the possession of the prosecution at the date of conviction or the date of application for leave to appeal.


2.52Transfer of prisoners

The Secretary to the Department of Justice shall arrange to transfer an appellant who is a prisoner to a prison near the Court of Appeal in sufficient time before the hearing commences to enable the appellant to consult legal advisers.


2.53Duties of prison officers

(1)A prison officer within the meaning of the Corrections Act 1986 who has custody of a person at the time the person is convicted on indictment shall immediately inform the person convicted that

Rule 2.53(1)(a) revoked by S.R. No. 55/2010 rule8(a).

*****

Rule 2.53(1)(b) amended by S.R. No. 55/2010 rule8(b).

(b)if the person wishes to appeal against conviction, the person may do so with the leave of the Court of Appeal;

Rule 2.53(1)(c) amended by S.R. Nos 55/2010 rule8(c), 6/2011 rule36(1)(a).

(c)if the person wishes to obtain leave of the Court of Appeal, the person must give notice of application for leave not later than 28days after sentence;

Rule 2.53(1)(d) amended by S.R. No. 6/2011 rule36(1)(b).

(d)if the person wishes to appeal against the sentence, the person may do so with the leave of the Court of Appeal and must give notice of the application not later than 28days after sentence;

Rule 2.53(1)(e) inserted by S.R. No. 6/2011 rule36(1)(c).

(e)applications for leave to appeal are determined without an oral hearing unless the person requests an oral hearing and confirms that request in writing to the Registrar, in accordance with any applicable Practice Direction.

(2)The prison officer shall

Rule 2.53(2)(a) amended by S.R. No. 6/2011 rule36(2).

(a)inform the convicted person that, unless it is otherwise ordered or the application is determined without an oral hearing, the person is entitled to attend or appear at the hearing of the appeal or application for leave to appeal or, if it is practicable to do so, to appear by audio visual link;

Note

See sections 328, 329 and 330 of the Act regarding attendance and appearance.

(b)give the convicted person a copy of Form62Q; and

(c)obtain from the convicted person a written acknowledgment that the person has received a copy of Form 62R and has read and understood it.

(3)If a convicted person expresses a wish to attend or appear at the hearing of an appeal or application or to appear by audio visual link, the prison officer who has the custody of the person shall inform the Registrar, who shall obtain the necessary order or make the necessary arrangements, as the case may be.

Rule 2.53(4) substituted by S.R. No. 6/2011 rule36(3).

(4)A prison officer who has custody of a convicted person shall give that person upon request the appropriate forms under these Rules.


2.54Obligation of prison officerssection 283 appeals

If the County Court under section 257, 259 or262 of the Act substitutes a sentence of imprisonment for any other sentence imposed by the Magistrates' Court, the prison officer who first has custody of the person sentenced shall

(a)immediately inform that person of the right to apply for leave to appeal under section283 of the Act;

(b)give to that person a copy of Forms62C and 62R; and

(c)obtain from that person a written acknowledgment that the person has received the forms and has read and understood them.

__________________

Order 2 Pt 9 (Heading and rules 2.552.59) insertedby S.R. No. 55/2010 rule9.

PART 9OTHER APPLICATIONS TO COURT OF APPEAL


2.55Application of Part

This Part applies if

(a)a party seeks to make an application to the Court of Appeal that is not otherwise dealt with by these Rules; and

(b)the Rules make no provision for such application.


2.56Application by summons

(1)An application under this Part shall be made by summons for directions returnable before the Registrar supported by affidavit.

(2)The application is taken to be made when the summons is filed.


2.57Service

The applicant shall serve the summons for directions and any accompanying affidavit on each respondent

(a)within three days of filing the applica

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