Part 6Miscellaneous
20Public
officers
The following bodies are declared to be public
bodies for the purposes of paragraph (f) of the definition of public officer in section 3 (1) of
the Act:
(a)
the Independent Commission Against
Corruption,
(b)
the Office of the Director of Public Prosecutions
of the Commonwealth,
(c)
the Police Integrity
Commission,
(d)
the Australian Federal
Police,
(e)
the Australian Securities and Investments
Commission,
(f)
the Royal Society for the Prevention of Cruelty
to Animals, New South Wales,
(g)
the Animal Welfare League
NSW,
(h)
the Chiropractic Board of
Australia,
(i)
the Chiropractic Council of New South
Wales,
(j)
the Dental Board of
Australia,
(k)
the Dental Council of New South
Wales,
(l)
the Medical Board of
Australia,
(m)
the Medical Council of New South
Wales,
(n)
the Nursing and Midwifery Board of
Australia,
(o)
the Nursing and Midwifery Council of New South
Wales,
(p)
the Optometry Board of
Australia,
(q)
the Optometry Council of New South
Wales,
(r)
the Osteopathy Board of
Australia,
(s)
the Osteopathy Council of New South
Wales,
(t)
the Pharmacy Board of
Australia,
(u)
the Pharmacy Council of New South
Wales,
(v)
the Physiotherapy Board of
Australia,
(w)
the Physiotherapy Council of New South
Wales,
(x)
the Podiatry Board of
Australia,
(y)
the Podiatry Council of New South
Wales,
(z)
the Psychology Board of
Australia,
(aa)
the Psychology Council of New South
Wales.
cl 20: Am 2006 (661),
Sch 1 [1]; 2008 (59), Sch 1 [1]; 2008 (593), cl 2. Subst 2010 No 34, Sch
2.11.
21Certificate by Attorney
General or Director of Public Prosecutions that no further proceedings to be
taken
For the purposes of section 44 (1) of the Act,
Form 1 is the prescribed form of certificate.
22Offences not within
jurisdiction of District Court
For the purposes of section 46 (2) of the Act,
the offences referred to in sections 12 and 19A of the Crimes
Act 1900 are prescribed as being offences that are not
within the jurisdiction of the District Court.
23Notice of intention to adduce
evidence of substantial mental impairment
For the purposes of section 151 (1) of the Act,
notice of an accused person’s intention to adduce evidence of
substantial mental impairment at his or her trial for murder:
(a)
must be in Form 2, and
(b)
must be given to the Director of Public
Prosecutions at least 35 days before the date on which the trial is listed to
commence.
23ANew trials of sexual assault
proceedings—notice of intention to tender record of original evidence of
complainant
A notice given by the prosecutor to the accused
person under section 306B (3) (a) or 306I (3) (a) of the Act must:
(a)
specify whether the record or records to be
tendered by the prosecutor in the new trial proceedings are an audio visual
recording, an audio recording or a transcript of the evidence given by the
complainant in the original proceedings, and
(b)
if a record to be tendered is an audio visual
recording or audio recording, contain information to the effect that the
accused person and his or her counsel are entitled to listen to or view the
recording at a place nominated by the prosecutor and set out the name of the
person responsible for arranging access to the
recording.
cll 23A: Ins 2006
(125), Sch 1. Am 2006 (784), Sch 1 [2].
23BProcedure for obtaining access
to record of original evidence of complainant
(1)
This clause sets out the procedure for obtaining
access to listen to or view an audio visual recording or audio recording of
the original evidence of the complainant for the purposes of section 306F of
the Act.
(2)
On receipt of a notice under section 306B (3) (a)
or 306I (3) (a) of the Act specifying the prosecutor’s intention to
tender in proceedings an audio visual recording or audio recording of the
original evidence of the complainant, the accused person, or his or her
counsel, may give the responsible person a notice in writing that he or she
requires access to the recording.
(3)
A responsible person who receives a notice that
complies with this clause must give the accused person and his or her counsel
(if any) access to listen to or view the recording as soon as practicable
after the day on which the responsible person receives the
notice.
(4)
The responsible person may give any person
accompanying the accused person, or his or her counsel, who has been engaged
to assist the accused person’s case access to listen to or view the
recording.
(5)
In this clause:
responsible person means the person
nominated by the prosecutor in the notice under section 306B (3) (a) or 306I
(3) (a) of the Act as the person responsible for arranging access to the
recording (as referred to in clause 23A (b)).
cll 23B: Ins 2006
(125), Sch 1. Am 2006 (784), Sch 1 [2].
24Offences for which briefs of
evidence not required
(1)
For the purposes of section 187 (5) of the Act,
the following proceedings are prescribed as proceedings of a kind in which a
prosecutor is not required to serve a brief of evidence:
(a)
proceedings for an offence for which a penalty
notice may be issued (other than an offence that is set out in Schedule 2 and
that is not referred to below),
(b)
proceedings for an offence under section 4 of the
Summary Offences Act
1988,
(c)
proceedings for an offence under section 9 or 12
of the Road Transport (Safety and Traffic
Management) Act 1999,
(d)
proceedings for a summary offence for which there
is a monetary penalty only,
(e)
proceedings for an offence under section 25 (2)
or 25A (1) (a), (2) (a), (3) (a), (3A) (a) (i) or (3A) (b) (i) of the Road Transport (Driver Licensing) Act
1998,
(f)
proceedings for an offence under section 10 of
the Drug Misuse and Trafficking Act
1985,
(g)
proceedings for an offence under section 16 (1)
of the Poisons and Therapeutic Goods Act
1966.
(2)
Subclause (1) has effect in relation to
proceedings referred to in subclause (1) (b), (c) or (d) only if the
proceedings are commenced on or after the commencement of this subclause and
before 1 July 2011.
(3)
Subclause (1) has effect in relation to
proceedings referred to in subclause (1) (e), (f) or (g) only if the
proceedings are commenced on or after 1 February 2010 and before 1 July
2011.
cl 24: Subst 2007 No
34, Sch 2. Am 2008 (426), Sch 1 [1]; 2009 (310), cl 3; 2010 (14), Sch 1 [1]
[2].
24ARequirements for short briefs
of evidence in certain circumstances
(1)Object of
clause
The object of this clause is to reduce the time
spent by police officers in producing statements of non-material witnesses for
inclusion in certain briefs of evidence and, accordingly, a court is to have
regard to that object when exercising its functions under this
clause.
(2)Proceedings to which clause
applies
This clause applies only to proceedings for
summary offences (including proceedings for indictable offences specified in
Table 2 of Schedule 1 to the Act that are being dealt with summarily) for
which a brief of evidence is required to be served under section 183 of the
Act.
(3)Definition of
“prescribed statement”
In this clause, prescribed statement means, in
relation to a brief of evidence required to be served under section 183 of the
Act in proceedings, a statement of a non-material witness, including the
following:
(a)
a police officer who provides evidence that the
preconditions of the exercise of a power have been satisfied or establishes
that the evidence on which the prosecutor relies was obtained in accordance
with the law (for example, the custody manager who cautions the accused person
under Part 9 of the Law Enforcement (Powers and
Responsibilities) Act 2002),
(b)
a police officer who was responsible for the
movement of, or recording the movement of, a thing connected with the offence
or the investigation of the offence (for example, a police officer who conveys
DNA or a drug sample to the Division of Analytical
Laboratories),
(c)
a police officer who operated a device that
produced or caused the production of a document, photograph, video or any
other thing relied on by the prosecutor to prove the prosecution’s
case,
(d)
any other police officer who provides evidence
that merely corroborates evidence of another police officer whose statement
relates to a process or procedure and is included in the brief of evidence
(for example, a police officer, other than the investigating police officer,
who was present when the accused person was interviewed),
(e)
a person who is a medical practitioner, nurse,
paramedic or other health care professional if all the notes of the person
(for example, doctor’s treatment notes or ambulance officer’s
checklists) have been included in the brief of
evidence.
Note—
Requirements relating to the time at which a
brief of evidence under section 183 is to be served are set out in section 183
(3) and (4).
(4)Documents not required to be
included in brief of evidence relating to proceedings to which this clause
applies
Despite section 183 (2) (a) of the Act, a brief
of evidence required to be served under that section in proceedings need not
include the following:
(a)
any prescribed statement so long as the brief
includes a list of each prescribed statement that, but for this clause, would
need to be included in the brief and a summary of what each such statement
would include,
(b)
any document that was served on the accused
person or the accused person’s legal representative by or on behalf of
the prosecutor after the court attendance notice in relation to the offence
concerned was served.
(5)Court may order service of
document not previously included in brief of evidence
On application by the accused person in
proceedings, the court may order that any prescribed statement, or any
document referred to in subclause (4) (b), be served on the accused person by
the prosecutor within a specified time before the hearing if the statement or
document was not included in the brief of evidence. The court is to give
reasons for the making of such an order.
(6)Circumstances in which Court
may order service of those documents
The court may make an order under subclause (5)
only if satisfied that:
(a)
in the case of a prescribed statement, the making
of the order would assist the defendant responding to the charge or assist the
court in determining the matter, or
(b)
in the case of a document referred to in
subclause (4) (b), the application for the order has been made in good
faith.
(7)This clause to operate for
trial period only
This clause has effect in respect of proceedings
only if the accused person in the proceedings was charged with the offence to
which the proceedings relate on or after 12 November 2007 and before 1 July
2011.
cl 24A: Ins 2007
(535), Sch 1 [1]. Am 2008 (426), Sch 1 [2]; 2009 (310), cl 3.
24BEvaluation of Local Court
process reforms—transitional
(1)Object of
clause
The object of this clause is to facilitate the
evaluation of the Local Court process reforms.
Note—
For that purpose, this clause requires the
service of a brief of evidence in proceedings to which this clause applies in
accordance with rules that are substantially the same as the rules that
applied before the Local Court process reforms were
made.
(2)Proceedings to which clause
applies
This clause applies to proceedings for an offence
in which the prosecution is conducted by a police prosecutor and which:
(a)
are heard in the Local Court sitting at Manly,
Sydney, and
(b)
are commenced on or after 1 July 2010 and before
1 October 2010.
(3)Briefs of
evidence
Clause 24 (1) (b)–(g) does not apply to
proceedings to which this clause applies. That is, in proceedings to which
this clause applies a brief of evidence must be served under section 183 of
the Act in relation to offences referred to in clause 24 (1)
(b)–(g).
Note—
Section 183 of the Act requires a brief of
evidence to be served on an accused person who pleads not guilty to an
offence.
(4)Short briefs of
evidence
Clause 24A does not apply to proceedings to which
this clause applies.
(5)Table 1
offences
In proceedings to which this clause applies, the
prosecutor is to serve, or cause to be served, on a person charged with an
indictable offence listed in Table 1 to Schedule 1 to the Act a copy of the
brief of evidence relating to the offence that complies with section 186 of
the Act within the time fixed by the Local Court. The time so fixed must be
before the time fixed by the Court for the making of an election in respect of
the offence.
(6)
The prosecutor is not required to include a copy
of a proposed exhibit identified in a brief of evidence if it is impossible or
impractical to copy the exhibit. However, the prosecutor must in that case
comply with section 184 (2) of the Act.
(7)
The Local Court is to grant such adjournments as
appear to be just and reasonable if a brief of evidence is not served in
accordance with subclause (5), and the Court is to extend accordingly the time
fixed for the making of an election in respect of the
offence.
(8)
The jurisdiction of the Local Court under this
clause may also be exercised by a registrar of the
Court.
(9)
This clause does not affect the requirement under
section 265 (2) of the Act that the prosecutor also serve on the person
charged a copy of the person’s criminal record.
(10)
In this clause:
brief of
evidence means a brief of evidence within the meaning of
section 183 (2) of the Act.
Local
Court process reforms means the changes to the Act and this
Regulation made by the Criminal Procedure Amendment (Local
Court Process Reforms) Act 2007.
cl 24B: Ins 2010
(14), Sch 1 [3].
25Exclusion of indemnity for
personal liability for costs
An officer or employee of any of the following
bodies is prescribed as a person who is not a public officer for the purposes of
sections 218 (2) and 257E (2) of the Act:
(a)
the Royal Society for the Prevention of Cruelty
to Animals, New South Wales,
(b)
the Animal Welfare League
NSW,
(c)
the Australian Federal
Police,
(d)
the Australian Securities and Investments
Commission,
(e)
the Office of the Director of Public Prosecutions
of the Commonwealth.
cl 25: Subst 2008
(59), Sch 1 [2].
26Issue of subpoenas in AVO
proceedings
For the purposes of section 220 of the Act,
proceedings for or relating to an apprehended violence order commenced under
the Crimes (Domestic and Personal Violence) Act
2007 are prescribed as proceedings to which Part 3 of
Chapter 4 of the Act applies.
cl 26: Am 2007 No 80,
Sch 2.10 [2].
27Prescribed form of
words
For the purposes of section 265 (1) (b) of the
Act, Form 3 is the prescribed form of words for the statement about a
person’s right to make an election and the consequences of not making an
election.
28Form and manner of election
and withdrawal of election
(1)
For the purposes of section 266 (2) (a) of the
Act, an election may be made orally to the Local Court or by filing a written
notice with the Court.
(2)
For the purposes of section 266 (2) (b) of the
Act, the withdrawal of an election may be made orally to the Local Court or by
filing a written notice with the Court.
cl 28: Am 2007 No 94,
Sch 2.
29Compellability of spouses to
give evidence in certain proceedings
For the purposes of section 279 (5) (b) of the
Act, Form 4 is the prescribed form in which a court’s reasons are to be
recorded.
30Depositions by persons
dangerously ill
For the purposes of section 284 (2) of the Act,
Form 5 is the prescribed form in which a deposition must be
taken.
30ADelegation of
functions
(1)
The registrar of a court may delegate to any
person the exercise of any of the functions conferred on the registrar by this
Regulation, other than this power of delegation.
(2)
The Sheriff may delegate to any person the
exercise of any of the functions conferred on the Sheriff by this Regulation,
other than this power of delegation.
cl 30A: Ins 2006
(356), Sch 1 [4].
31Repeal and
savings
(1)
The Criminal
Procedure Regulation 2000 is
repealed.
(2)
Any act, matter or thing that, immediately before
the repeal of the Criminal Procedure Regulation
2000, had effect under that Regulation continues to have
effect under this Regulation.