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The purposes of this Act are—
to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court;
to introduce a new procedure permitting the service of a notice to appear in the Magistrates' Court;
to provide new pre-trial disclosure requirements for the prosecution;
to provide for a 6-month time limit for the filing of charges for summary offences in the Children's Court;
to provide for the transfer to the County Court or Supreme Court of summary offences related to an offence to be tried on indictment by the relevant court;
to abolish the procedure of indictment by grand jury;
to provide for interlocutory appeals in criminal proceedings in the County Court and the Supreme Court;
to clarify the tests relating to determination of appeals by the Court of Appeal;
to provide for the stay of sentences on appeal;
to amend the Sentencing Act 1991 to provide for a maximum fine that may be imposed for an indictable offence that is heard and determined summarily;
to amend the Crimes Act 1958, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, the Children, Youth and Families Act 2005 and the Appeal Costs Act 1998;
to repeal the Crimes (Criminal Trials) Act 1999;
to make consequential and other amendments.
This Chapter comes into operation on the day after the day on which this Act receives the Royal Assent.
S. 2(2) amended by No. 68/2009 s. 51(a), repealed by No. 30/2010 s. 56.
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Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
If a provision referred to in subsection (3) does not come into operation before 1 January 2011, it comes into operation on that day.
In this Act—
S. 3 def. of accused amended by No. 68/2009 s. 51(b)(i).
accused means a person who—
is charged with an offence; or
is directed under section 415 to be tried for perjury;
appeal includes application for leave to appeal;
appeal period means the period permitted by or under this Act or any other Act for commencing an appeal under Part 6.3 or, if a notice of appeal or notice of application for leave to appeal under Part 6.3 is filed within that period, the determination of the appeal;
appear, in relation to a party, has the meaning given in section 328;
appellant includes an applicant for leave to appeal;
appropriate registrar means—
the registrar at the venue of the Magistrates' Court referred to in section 11; or
if an order is made under section 31, the registrar at the venue of the Magistrates' Court at which the hearing is to be held;
arraignment has the meaning given in section 215(1);
S. 3 def. of attend amended by No. 69/2009 s. 54(Sch. Pt 2 item 18.1), substituted by No. 38/2016 s. 9(1), amended by No. 11/2021 s. 44.
attend, in relation to a person, means—
be physically present in court; or
if authorised or required to do so under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link or audio link;
S. 3 def. of Category A serious youth offence inserted by No. 43/2017 s. 25, amended by Nos 32/2018 s. 132, 16/2020 s. 17.
Category A serious youth offence means any of the following offences—
murder;
attempted murder;
manslaughter;
child homicide;
homicide by firearm;
an offence against any of the following sections of the Crimes Act 1958—
section 15A (intentionally causing serious injury in circumstances of gross violence);
section 77B (aggravated home invasion);
section 79A (aggravated carjacking);
section 197A (arson causing death);
section 318 (culpable driving causing death);
an offence against any one of the following—
section 4B of the Terrorism (Community Protection) Act 2003;
a provision of Subdivision A of Division 72 of Chapter 4 of the Criminal Code of the Commonwealth;
a provision of Part 5.3 or 5.5 of the Criminal Code of the Commonwealth;
a provision of the Crimes (Foreign Incursions and Recruitment) Act 1978 of the Commonwealth as in force before its repeal;
S. 3 def. of Category B serious youth offence inserted by No. 43/2017 s. 25.
Category B serious youth offence means an offence against any of the following sections the Crimes Act 1958—
section 15B (recklessly causing serious injury in circumstances of gross violence);
section 38 (rape);
section 39 (rape by compelling sexual penetration);
section 77A (home invasion);
section 79 (carjacking);
S. 3 def. of child inserted by No. 5/2018 s. 11(1).
child means a person under the age of 18 years;
S. 3 def. of child pornography inserted by No. 42/2015 s. 12, substituted as child abuse material by No. 47/2016 s. 37(1)(a).
child abuse material has the same meaning as in section 51A of the Crimes Act 1958;
cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;
commencement of trial, in relation to the Supreme Court or the County Court, has the meaning given in section 210;
compulsory examination hearing means a hearing under section 106;
contest mention hearing means a hearing under section 55;
S. 3 def. of conviction amended by No. 68/2009 s. 3(a).
conviction, in Chapter 6, includes a finding of guilt by a court, whether or not a conviction is recorded;
corporate accused means an accused that is a body corporate;
S. 3 def. of criminal record amended by No. 81/2011 s. 3(1).
criminal record, in relation to a person, means a document that—
sets out all previous convictions and infringement convictions of the person alleged by the prosecution; and
complies with section 77 or 244, as the case requires;
Crown Prosecutor means the Chief Crown Prosecutor, a Senior Crown Prosecutor or a Crown Prosecutor appointed under the Public Prosecutions Act 1994;
depositions means the transcript of evidence given in a committal proceeding and any statements admitted in evidence in a committal proceeding in accordance with Chapter 4;
S. 3 def. of direct indictment substituted by No. 30/2010 s. 57, amended by No. 81/2011 s. 3(2).
direct indictment means an indictment filed against an accused—
who has not been committed for trial in respect of the offence charged in the indictment or a related offence; or
whose prosecution for the offence charged in the indictment or a related offence—
was discontinued under section 177; or
was the subject of a nolle prosequi; or
resulted in an acquittal within the meaning of Chapter 7A and the prosecution of the offence charged in the indictment may only proceed if the Court of Appeal gives authorisation under section 327O;
S. 3 def. of disclosure certificate inserted by No. 1/2022 s. 3.
disclosure certificate means a disclosure certificate described in section 41A or 110A (as the case requires);
DPP means the Director of Public Prosecutions for Victoria;
S. 3 def. of evidence in support of alibi inserted by No. 68/2009 s. 3(d).
evidence in support of alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;
S. 3 def. of family violence offence inserted by No. 5/2025 s. 38.
family violence offence means, except in Division 7B of Part 8.2, an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008;
filing hearing means a hearing referred to in section 101;
full brief means a full brief described in section 41;
S. 3 def. of ground rules hearing inserted by No. 5/2018 s. 26, substituted by No. 38/2022 s. 68.
ground rules hearing has the meaning given by section 389AB;
hand-up brief means a hand-up brief described in section 110;
S. 3 def. of in detention amended by Nos 26/2014 s. 455(Sch. item 8.1), 19/2019 s. 258(a), 39/2022 s. 820(a), 32/2024 s. 1038(b).
in detention means—
in a prison in the legal custody of the Secretary to the Department of Justice; or
in custody in a police gaol in the legal custody of the Chief Commissioner of Police; or
detained in a designated mental health service within the meaning of the Mental Health and Wellbeing Act 2022 in the legal custody of the authorised psychiatrist for the designated mental health service; or
in custody in a youth justice custodial centre within the meaning of the Youth Justice Act 2024 in the legal custody of the Secretary to the Department of Justice and Community Safety; or
in custody in a residential treatment facility within the meaning of the Disability Act 2006 in the legal custody of the Secretary to the Department of Human Services;
indictable offence that may be heard and determined summarily means an offence to which section 28(1) applies;
informant means a person who commences a criminal proceeding in the Magistrates' Court;
S. 3 def. of infringement conviction inserted by No. 81/2011 s. 3(3), amended by Nos 47/2014 s. 256(a), 41/2019 s. 117(Sch. 1 item 2.1).
infringement conviction means an infringement notice that has taken effect as a conviction of the offence specified in the notice;
Note
An offence where an infringement notice may take effect as a conviction includes an infringement offence to which any of the following provisions apply—
• sections 89A to 89D of the Road Safety Act 1986; or
• sections 61A and 61BA of the Marine (Drug, Alcohol and Pollution Control) Act 1988.
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S. 3 def. of infringements registrar repealed by No. 47/2014 s. 256(b).
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interlocutory appeal means an appeal under Division 4 of Part 6.3;
S. 3 def. of interlocutory decision amended by Nos 87/2009 s. 6, 32/2024 s. 811(2).
interlocutory decision means a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including—
a decision to grant or refuse to grant a permanent stay of the proceeding; or
a decision made at a pre-trial hearing that the presumption against criminal responsibility has been rebutted;;
S. 3 def. of intermediary inserted by No. 5/2018 s. 26.
intermediary means a person appointed under section 389J;
S. 3 def. of intimate image offence inserted by No. 38/2022 s. 23.
intimate image offence has the same meaning as in section 53O(1) of the Crimes Act 1958;
Juries Commissioner has the same meaning as in the Juries Act 2000;
S. 3 def. of legal practitioner amended by No. 17/2014 s. 160(Sch. 2 item 30.1).
legal practitioner means—
an Australian legal practitioner; or
a government lawyer within the meaning of the Legal Profession Uniform Law (Victoria);
mention hearing means a hearing referred to in section 53;
S. 3 def. of non‑ disclosure order inserted by No. 1/2022 s. 8.
non-disclosure order means an order of a kind described in section 416A(3);
S. 3 def. of notice to appear inserted by No. 68/2009 s. 3(d).
notice to appear means a notice served under section 21;
S. 3 def. of ordinary service amended by No. 68/2009 s. 51(b)(ii).
ordinary service means service in accordance with section 394;
S. 3 def. of original jurisdiction amended by Nos 65/2011 s. 107(Sch. item 4.1), 57/2017 s. 47, 27/2018 s. 357.
original jurisdiction includes—
a proceeding for an indictable offence; and
a proceeding for a related summary offence heard under section 242; and
a proceeding for an unrelated summary offence heard under section 243; and
a proceeding for contempt of court; and
a proceeding for variation or contravention of a sentencing order under the Sentencing Act 1991; and
a proceeding for a related offence that is a summary offence heard under section 176 of the Serious Offenders Act 2018;
originating court means the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction;
S. 3 def. of personal service amended by No. 68/2009 s. 51(b)(iii).
personal service means service in accordance with section 391;
plea brief means a plea brief described in section 117;
police gaol has the same meaning as in the Corrections Act 1986;
S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 41.1).
police officer has the same meaning as in the Victoria Police Act 2013;
preliminary brief means a preliminary brief described in section 37;
S. 3 def. of presumption against criminal responsibility inserted by No. 32/2024 s. 811(1).
presumption against criminal responsibility means the presumption set out in section 11 of the Youth Justice Act 2024;
S. 3 def. of previous conviction amended by No. 3/2016 s. 60.
previous conviction means a prior conviction or finding of guilt by a court (whether in or out of Victoria) but does not include—
a conviction or finding of guilt set aside by the Magistrates' Court under section 92; or
a conviction or finding of guilt set aside by the County Court or the Supreme Court, as the case requires, under section 256; or
a conviction or finding of guilt set aside by the Court of Appeal under section 277; or
a conviction or finding of guilt by a children's court (whether in or out of Victoria) made more than 10 years before the hearing at which it is sought to be proved;
prison has the same meaning as in the Corrections Act 1986;
S. 3 def. of prison officer repealed by No. 68/2009 s. 3(b).
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S. 3 def. of proceeding amended by No. 47/2014 s. 256(c).
proceeding, in relation to the Magistrates' Court, includes a committal proceeding but does not include the exercise by a registrar of the Magistrates' Court of any jurisdiction, power or authority vested in the registrar under the Fines Reform Act 2014;
S. 3 def. of protective services officer inserted by No. 37/2014 s. 10(Sch. item 41.1).
protective services officer has the same meaning as in the Victoria Police Act 2013;
S. 3 def. of public official amended by Nos 30/2010 s. 77(1), 9/2020 s. 390(Sch. 1 item 20.1).
public official means—
a public official within the meaning of the Public Administration Act 2004; or
a person employed by, or the holder of an office in, or on the governing body of a Council within the meaning of the Local Government Act 2020; or
in the case of a charge for an offence referred to in section 24ZW(1) of the Prevention of Cruelty to Animals Act 1986, a full-time officer of the Royal Society for the Prevention of Cruelty to Animals authorised under section 24ZW(1)(b) of that Act;
S. 3 def. of publish inserted by No. 32/2024 s. 811(1).
publish means disseminate or provide access to the public or a section of the public by any means, including by—
publication in a book, newspaper, magazine or other written publication; or
broadcast by radio or television; or
public exhibition; or
broadcast or electronic communication;
S. 3 def. of record of reasons inserted by No. 32/2024 s. 811(1).
record of reasons means a record of reasons prepared for the purposes of section 12(3) of the Youth Justice Act 2024;
S. 3 def. of reference determination inserted by No. 44/2019 s. 33.
reference determination means a determination made by the Trial Division of the Supreme Court or the County Court (as the case requires) on a referral under section 319A(2);
related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character;
S. 3 def. of related summary offence substituted by No. 38/2022 s. 75.
related summary offence means a summary offence the proceedings for which are transferred from—
the Magistrates' Court to the Supreme Court or the County Court under section 145; or
the Supreme Court to the County Court under section 241A(1); or
the County Court to the Supreme Court under section 241A(2);
S. 3 def. of responsible person amended by Nos 26/2014 s. 455(Sch. item 8.2), 19/2019 s. 258(b), 39/2022 s. 820(b), 32/2024 s. 1038(c).
responsible person, in relation to a person in detention, means—
in the case of a prison, the officer in charge of the prison;
in the case of a police gaol, the Chief Commissioner of Police;
in the case of a designated mental health service within the meaning of the Mental Health and Wellbeing Act 2022, the authorised psychiatrist for the designated mental health service;
in the case of a youth justice custodial centre within the meaning of the Youth Justice Act 2024, the Secretary to the Department of Justice and Community Safety;
in the case of a residential treatment facility within the meaning of the Disability Act 2006, the Secretary to the Department of Human Services;
return date, in relation to a criminal proceeding in the Magistrates' Court, means the first date on which the proceeding is listed before the court;
S. 3 def. of sentence amended by Nos 68/2009 s. 3(c), 65/2011 s. 107(Sch. item 4.2), 26/2012 s. 73, 25/2017 s. 56, 32/2024 s. 1038(d)(e).
sentence includes—
the recording of a conviction; and
an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order; and
an order made under section 11 or 11B of the Sex Offenders Registration Act 2004; and
an order made under section 84S or 84T of the Road Safety Act 1986; and
an order made under section 365, 367, 373, 380, 387, 397, 409B, 410 or 412 of the Children, Youth and Families Act 2005, as in force before the repeal of Part 5.3 of that Act, made by the Supreme Court in its original jurisdiction or the County Court in its original jurisdiction; and
an order made under section 245, 249, 269, 273, 280 or 325 of the Youth Justice Act 2024 made by the Supreme Court in its original jurisdiction or the County Court in its original jurisdiction;
Note
Section 241 of the Youth Justice Act 2024 gives the Supreme Court and the County Court, when sentencing a child for an indictable offence, power to impose any sentence which the Children's Court may impose.
S. 3 def. of sexual offence amended by No. 47/2016 s. 37(1)(b), substituted by No. 5/2018 s. 11(2).
sexual offence has the meaning given by section 4;
S. 3 def. of special hearing inserted by No. 68/2009 s. 3(d).
special hearing means a hearing conducted under section 370;
summary case conference means a conference referred to in section 54;
summary hearing means a hearing conducted in accordance with Part 3.3;
S. 3 def. of total effective sentence inserted by No. 48/2012 s. 4.
total effective sentence means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion;
S. 3 def. of traffic camera offence inserted by No. 55/2014 s. 112, amended by Nos 8/2019 s. 91, 18/2020 s. 125.
traffic camera offence means—
an offence under the Road Safety Act 1986 or regulations or rules under that Act that is detected by a road safety camera, a speed detector or a process prescribed for the purposes of that Act; or
an offence under the Melbourne City Link Act 1995 that is detected by a tolling device or a process prescribed for the purposes of Part 4 of that Act; or
an offence under the EastLink Project Act 2004 that is detected by a tolling device or a process prescribed for the purposes of Part 9 of that Act; or
an offence under the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019 that is detected by a tolling device or process prescribed for the purposes of Part 3 of that Act; or
an offence under the North East Link Act 2020 that is detected by a tolling device or process prescribed for the purposes of Part 4 of that Act;
trial judge means the judge of the Trial Division of the Supreme Court or the judge of the County Court before whom an accused is tried;
Victoria Legal Aid means Victoria Legal Aid established under section 3 of the Legal Aid Act 1978;
S. 3 def. of youth justice centre repealed by No. 32/2024 s. 1038(f).
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S. 3 def. of youth justice custodial centre inserted by No. 32/2024 s. 1038(a).
youth justice custodial centre has the same meaning as it has in the Youth Justice Act 2024.
S. 4 (Heading) amended by No. 22/2020 s. 10.
S. 4 substituted by No. 5/2018 s. 12.
In this Act, sexual offence means any of the following offences (other than an offence excluded by subsection (2))—
an offence against—
S. 4(1)(a)(i) amended by No. 7/2022 s. 67(1)(a).
a provision of Subdivision (8A), (8B), (8C), (8D), (8E), (8F), (8FAA) (except section 53N) or (8FA) of Division 1 of Part I of the Crimes Act 1958; or
section 327(2) (failure to disclose a sexual offence committed against a child under the age of 16 years) of the Crimes Act 1958; or
S. 4(1)(a)(iii) amended by No. 7/2022 s. 67(1)(b).
section 5(1), 6(1), 7(1), 8(1), 9(1) or 11(1) of the Sex Work Act 1994 despite its repeal by the Sex Work Decriminalisation Act 2022;
S. 4(1)(ab) inserted by No. 38/2022 s. 24.
an intimate image offence;
an offence an element of which involves—
any person engaging in sexual activity; or
any person taking part in a sexual act; or
commercial sexual services; or
a sexual performance involving a child;
an offence an element of which involves—
an intention that any of the conduct referred to in paragraph (b) is to occur; or
soliciting, procuring, enabling or threatening any of the conduct referred to in paragraph (b); or
inducing or knowingly allowing a child to enter or remain on premises so that any of the conduct referred to in paragraph (b) may occur;
an offence an element of which involves child abuse material;
an offence an element of which involves indecency;
S. 4(1)(f) amended by No. 1/2026 s. 82.
an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraphs (a) to (e);
an offence against section 49C(2) (failure by person in authority to protect child from sexual offence) of the Crimes Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016.
S. 4(2) amended by No. 7/2022 s. 67(2).
An offence against a provision of the Sex Work Act 1994, despite its repeal by the Sex Work Decriminalisation Act 2022, that is not referred to in subsection (1)(a)(iii) is not a sexual offence.
In determining whether an offence at common law is a sexual offence, it does not matter that the offence has since been abolished.
In determining whether an offence against an enactment is a sexual offence, it does not matter that the enactment has since been repealed.
In determining whether an offence is a sexual offence, it does not matter that the offence is described in this section—
differently from how it is described in the enactment or common law that establishes the offence; or
by reference to an enactment that was not in operation on the date on which the offence is alleged to have been committed.
Example
Subdivision (13) of Division 1 of Part I of the Crimes Act 1958 previously included offences involving child pornography. That Subdivision has been repealed and replaced by new offences that refer to child abuse material rather than child pornography. Child pornography was defined to include material of a certain kind, and child abuse material is now defined as also including material of that kind. An offence against a provision of repealed Subdivision (13) is therefore a sexual offence under subsection (1)(d).
In this section—
S. 4(6) def. of commercial sexual services amended by No. 7/2022 s. 67(3).
commercial sexual services has the meaning given by section 35(1) of the Crimes Act 1958;
sexual, in relation to an activity, has the meaning given by section 35D of the Crimes Act 1958;
sexual performance has the meaning given by section 49Q(3) of the Crimes Act 1958;
taking part in a sexual act has the meaning given by section 35C of the Crimes Act 1958.
A criminal proceeding is commenced by—
filing or signing a charge-sheet in accordance with section 6; or
filing a direct indictment in accordance with section 159; or
S. 5(c) amended by No. 68/2009 s. 51(c).
a direction under section 415 that a person be tried for perjury.
Note to s. 5 inserted by No. 48/2012 s. 10.
Note
A proceeding may also be commenced under section 83AL of the Sentencing Act 1991.
A criminal proceeding is commenced—
S. 6(1)(a) amended by No. 20/2025 s. 5.
by filing a charge-sheet containing a charge in the Magistrates' Court; or
if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
if a summons is issued under section 14, at the time the charge-sheet is signed.
Note to s. 6(1) substituted as Notes by No. 32/2024 s. 812.
Notes
1 A criminal proceeding against a child is commenced in the same manner in the Children's Court: section 528 of the Children, Youth and Families Act 2005.
2 In the case of a criminal proceeding for an alleged offence by a child who was 12 or 13 years of age at the time of the alleged commission of the offence, a record of reasons must be filed with the charge-sheet.
S. 6(2) amended by No. 31/2024 s. 9.
If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of section 8(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.
A charge-sheet must—
be in writing; and
be signed by the informant personally; and
comply with Schedule 1.
Note
Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.
The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.
A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
otherwise provided by or under any other Act; or
the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
Note to s. 7(1) amended by No. 32/2024 s. 1039.
Note
See Part 5.1 of Chapter 5 of the Youth Justice Act 2024 for a shorter time limit in relation to children.
A proceeding for an indictable offence—
may be commenced at any time, except where otherwise provided by or under this or any other Act; and
may be heard and determined summarily even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed.
S. 7A inserted by No. 74/2014 s. 10.
Any immunity from prosecution arising because of the time limit imposed by the following repealed provisions on commencing a proceeding for an offence is abolished—
section 47 of the Crimes Act 1928;
section 51 of the Crimes Act 1957;
section 51 of the Crimes Act 1958 (repealed by section 5 of the Crimes (Sexual Offences) Act 1980);
section 48(6) of the Crimes Act 1958 (inserted by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed by section 3 of the Crimes (Sexual Offences) Act 1991);
section 49(6) of the Crimes Act 1958 (inserted by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed by section 3 of the Crimes (Sexual Offences) Act 1991).
S. 7A(2) amended by No. 14/2015 s. 80.
Subsection (1) does not apply to an offence if the conduct constituting it would not constitute an offence under the law of Victoria immediately before the day after the day on which the Jury Directions Act 2015 receives the Royal Assent.
Without limiting any other defence available to a person charged, because of subsection (1), with an offence of a kind described in column 1 of the Table in this subsection, the person may rely on a defence described in column 2 of that Table in relation to that offence.
Table
Column 1 | Column 2 |
An offence against a child under the age of 16 | A defence that would be available under section 45(4) of the Crimes Act 1958 if the person were charged with an offence under section 45(1) of that Act |
An offence against a 16 or 17 year old child | A defence that would be available under section 48(2) of the Crimes Act 1958 if the person were charged with an offence under section 48(1) of that Act |
S. 7B inserted by No. 38/2022 s. 60.
This section applies if—
conduct is alleged to have occurred at some time during a period; and
the conduct, if proven, would constitute a sexual offence at all times during that period; and
there is uncertainty as to when, during that period, the conduct allegedly occurred; and
because of a change in the law during that period, the conduct, if proven, would constitute one sexual offence before the change and a different sexual offence after the change.
A person may be charged with—
whichever of those sexual offences has the lowest maximum penalty; or
if both of the sexual offences have the same maximum penalty, the offence that the conduct, if proven, would have constituted before the change.
The means by which an offence may be charged in accordance with subsection (2) include—
including a charge for that offence in a fresh indictment within the meaning of section 164; or
amending an indictment under section 165 so that it includes a charge for that offence.
For the purposes of a proceeding that relates (wholly or partly) to an offence that is charged in accordance with subsection (2), the offence charged is taken to have been in force when the conduct allegedly occurred.
In any such proceeding, any requirement to prove that the complainant was of a particular age is satisfied if the prosecution proves that the complainant was of that age at some time during the period.
The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
the amendment does not amount to the commencement of a proceeding for a new offence; and
the amendment will not cause injustice to the accused.
A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.
A charge on a charge-sheet is not invalid by reason only of—
omitting to state the time at which the offence was committed unless time is an essential element of the offence; or
incorrectly stating the time at which the offence was committed; or
stating the offence to have been committed on an impossible day or on a day that never happened.
If a charge-sheet contains a charge for a summary offence, the proceeding must be listed for a mention hearing.
Subject to subsection (3), if a charge-sheet contains a charge for an indictable offence that may be heard and determined summarily, the proceeding may be listed for a mention hearing or a filing hearing, having regard to any request for a committal proceeding included on the charge-sheet.
If a notice to appear is served under section 21 and a charge-sheet is filed in accordance with section 22, the proceeding must be listed for a mention hearing on the date specified in the notice to appear.
Despite subsections (1) and (2), if a charge-sheet contains a charge for an indictable offence that is not an indictable offence that may be heard and determined summarily, the proceeding must be listed for a filing hearing.
Notes
1 A mention hearing is the first hearing for a charge that will be heard and determined summarily.
2 A filing hearing is the first stage in a committal proceeding under Chapter 4.
3 Section 28(1) sets out the indictable offences that may be heard and determined summarily.