Criminal procedure amendments enacted by the Justice Legislation Amendment (Criminal Procedure and Other Matters) Act 2022 have commenced. Further amendments are pending.
Amendments include:
Prosecution disclosure obligations
Section 41 Criminal Procedure Act 2009 sets out what must be provided in a full brief. This includes any information, document, or thing on which the prosecution intends to rely at the hearing. The section has been amended to require the prosecution to now include in the brief any information relevant to the credibility of a prosecution witness, including their criminal record if any.
The informant, usually a police officer, also has an ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document, or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity.
An amendment yet to commence requires detailed disclosure certificates to be prepared by the prosecution to ensure compliance with these disclosure requirements. There are associated tweaks to the pre-trial procedure to accommodate them. These amendments are awaiting proclamation, but have a default commencement date of 1 October 2022.
Remote evidence
The criminal procedure amendments introduce an obligation on the court to direct that the evidence of a witness be given remotely if the witness is a complainant in a proceeding that relates to an offence that constitutes family violence within the meaning of the Family Violence Protection Act 2008. This applies if closed-circuit television or other facilities that enable communication between the courtroom and another place are available and it is practicable to do so.
Appeals
Where the Magistrates’ Court in any given matter is constituted by the Chief Magistrate who is a dual commission holder, meaning also a Supreme Court judge, appeals are now to the Court of Appeal.
Intervention Orders
Declarations of truth are now available for applicants commencing applications for personal safety intervention orders. This is in addition to oaths, affirmations, and affidavits. Declarations of truth were already available for family violence applications.
Under both Acts, special rules apply for the cross-examination of affected family members and children. The amendments have effectively made remote evidence the default position for protected witnesses, which includes children and close family members of the accused. See s 69 (1A) of the Family Violence Protection Act 2008 and ss 49 and 52 of the Personal Safety Intervention Orders Act 2010.
Publication updates
These changes have been reflected as required in the By Lawyers Magistrates’ Court – Criminal publication. When the additional amendments commence our publications will be further updated.