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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 23 June 2017 at 06:30)
Part 75
Part 75 Criminal proceedings
Division 1 General
1   Application
Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act.
1A   Criminal Appeal Rules
The Criminal Appeal Rules remain in force.
2   Rules applicable
The following provisions of these rules apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:
(a)  Part 1 (preliminary matters), other than Part 1 rule 11 (3),
(b)  Part 1A (sittings and vacations),
(c)  Part 2 (time),
(d)  Part 55 (procedure for punishment for contempt),
(e)  Part 61 rules 1 (4), (5) and (6), 2 and 3 (registrars),
(f)  Schedule F, forms 74AA, 74AB, 74AC and 74AD (subpoenas),
(g)  clause 1 of the matter relating to the Jury Act 1977 in Schedule J.
3   Rules applicable
(1)  The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:
(a)  Part 1 (preliminary matters),
(b)  rules 2.1 and 2.2,
(c)  Part 4 (preparation and filing of documents), other than rules 4.2, 4.9 and 4.12,
(d)  Part 10 (service of documents generally), other than rules 10.7 and 10.16,
(e)  rule 29.13 (record of trial to be kept),
(f)  rules 31.7, 31.11, 31.12, 31.21 and 31.22,
(f1)  Division 3 of Part 32 and rule 32.13,
(g)  Part 33 (subpoenas), other than:
(i)  rules 33.3 (1), 33.3 (8), 33.6 (1) and 33.7, and
(ii)  if the issuing party is the Crown, rules 33.2 (3), 33.5 and 33.11,
(h)  Part 35 (affidavits).
(2)  Part 10 of the Uniform Civil Procedure Rules 2005 (other than rules 10.7 and 10.16) applies, so far as applicable, to service of a notice of listing under clause 10 (2) of the Criminal Procedure Regulation 1987.
(3)  For the purposes of subrule (2), the address contained in a notice filed in the registry under clause 6 (1) of the Criminal Procedure Regulation 1987 of an accused person’s solicitor is taken to be the accused person’s address for service.
(4)  Subject to subrule (5), Rule 31.3 of the Uniform Civil Procedure Rules 2005 applies to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies.
(5)  Orders may not be made under Rule 31.3 of the Uniform Civil Procedure Rules 2005:
(a)  in respect of the evidence given by a person against whom the proceedings are brought (an accused), or
(b)  that prevent an accused from attending any part of the proceedings,
without the consent of that accused.
(6)  Rule 31.5 of the Uniform Civil Procedure Rules 2005 applies to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies as if the time fixed for giving notice were not later than 21 days before the date fixed for hearing.
3AA   Forms approved by Uniform Rules Committee not to be used
Despite anything to the contrary in this Part, a form approved under section 17 of the Civil Procedure Act 2005 is not to be used for the purposes of proceedings in the Court that are specified in the Third Schedule to the Act or in proceedings to which Division 2 applies.
(1), (2)    (Repealed)
(3)  An application to the Court under section 45 (1) of the Children (Criminal Proceedings) Act 1987 shall be made by motion in the proceedings in respect of the offence.
3B   Registrar may exercise certain powers and functions
(1)  Any power or function in relation to civil proceedings:
(a)  that is conferred on a registrar by a provision of these rules referred to in rule 2, or
(b)  that is conferred on a registrar by a provision of the Uniform Civil Procedure Rules 2005 referred to in rule 3, or
(c)  that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005,
may be exercised by the registrar in relation to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and proceedings to which Division 2 applies.
(2)  This rule does not apply to a power or function that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005 if the instrument states, or necessarily implies, that the registrar may exercise the power or function in relation to civil proceedings only.
(3)  In this rule, civil proceedings has the same meaning as it has in the Civil Procedure Act 2005.
3C   Evidence taken outside the State
Rule 1 shall not apply to proceedings under:
(a)  Part 2 of the Foreign Evidence Act, or
(to which proceedings Part 24 of the Uniform Civil Procedure Rules 2005 relates).
3D   Form of indictment
(1)  An indictment may be in Form 74AE.
cf Act No 40, 1900, s 567.
(2)  No indictment shall be held bad or insufficient for failure to comply with the form prescribed by subrule (1) or with subrule (2A).
cf Act No 40, 1900, s 360.
(2A)  An indictment must specify the Law Part Code (if any) for each offence alleged to have been committed in the indictment.
(3)  The rules, other than this rule and Form 74AE, shall not apply to an indictment in any other Court.
(4)  In this rule:
Law Part Code for an offence means the Law Part Code allocated to the offence in the Lawcodes Database maintained by the Judicial Commission of New South Wales.
3E–3G   (Repealed)
3H   Election under s132 of Criminal Procedure Act 1986
(1)  An election under section 132 (1) or (5) of the Criminal Procedure Act 1986 shall:
(a)  be in the prescribed form,
(b)  in the case of an election under section 16 (1)—be endorsed with the consent of the Director for Public Prosecutions given under section 16 (3), and
(c)  be filed before the date fixed for the trial.
(2)  Consent of the Director of Public Prosecutions may be endorsed under subrule (1) (b) by that Director or an officer authorised in writing by that Director to give such consents.
3HA   Criminal proceedings
(cf former Part 27, rule 1B)
(1)  If a person has been committed for trial or is to be dealt with before the Court, a proceeding between the prosecuting authority and the person is taken to be before the Court for the purposes of any application to the Court under section 6 or 20 of the Evidence on Commission Act 1995 or under section 7 of the Foreign Evidence Act 1994 of the Commonwealth.
(2)  Any such application is to be made:
(a)  in a proceeding which is before the Court under subrule (1)—by summons, or
(b)  in proceedings which are specified in the Third Schedule to the Act—by motion in the proceedings as if the proceedings had been commenced by summons, or
(c)  in proceedings in the Court in its summary jurisdiction—by motion in the proceedings.
(3)  If a person has been committed for trial or to be dealt with before the District Court, a proceeding between the prosecuting authority and the person is taken to be before the District Court for the purposes of any application to the Court under section 9 or 23 of the Evidence on Commission Act 1995 or under section 10 of the Foreign Evidence Act 1994 of the Commonwealth.
3I   Return of exhibits
Where proceedings specified in the Third Schedule to the Act or assigned by rule 3HA or by Part 75 have been concluded and:
(a)  28 days have expired since the conclusion, and
(b)  there is no undisposed of appeal, or application for leave to appeal, in respect of the proceedings,
the registrar may, unless the Court otherwise orders, return any exhibits in the proceedings still in the custody of the registrar by forwarding them to the Director of Public Prosecutions.
3J   Expert witnesses
(1)  This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).
(2)  For the purposes of this rule and rule 3K:
expert witness means an expert engaged for the purpose of:
(a)  providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
(b)  giving opinion evidence in proceedings or proposed proceedings.
the code means the expert witness code of conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005.
(3)  Unless the Court otherwise orders:
(a)  at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and
(b)  unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:
(i)  service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and
(ii)  the report is not to be admitted into evidence, and
(c)  oral evidence is not to be received from an expert witness unless:
(i)  he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and
(ii)  a copy of the acknowledgment has been served on all parties affected by the evidence.
(4)  If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness:
(a)  the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and
(b)  the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.
(5)  This rule does not apply to an expert engaged before this rule commences.
3K   Conference between experts
(1)  The Court may do any or all of the following, with the consent of the parties:
(a)  direct expert witnesses to confer (whether before or during a trial or other proceedings),
(b)  specify the matters on which they are to confer,
(c)  direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement,
(d)  direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively,
(e)  give any additional directions as may be considered necessary.
(2)  An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.
(3)  The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.
(4)  The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.
(5)  Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.
3L   Recording of evidence
(1)  This rule applies to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).
(2)  Evidence given by a witness may be recorded by video or by any other audio-visual method as directed by the Court.
3M   Entry of judgments and orders
(1)  This rule applies in relation to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies.
(2)  Any judgment or order of the Court is to be entered as soon as practicable after it is given or made.
(3)  Unless subrule (4) applies, a judgment or order of the Court is taken to be entered when it is recorded in the Court’s computerised court record system.
Note.
 The Court’s computerised court record system is JusticeLink.
(4)  If a technical problem would prevent the timely entry of a judgment or order in accordance with subrule (3), a judgment or order of the Court is taken to be entered when a record of the judgment or order set out on the indictment for the proceedings, or on or in the appropriate court file, is signed by a Judge giving or making the judgment or order, the Judge’s associate or the registrar.
(5)  In this rule:
(a)  a reference to a judgment or order of the Court extends to a reference to a sentence, direction or recommendation of the Court, and
(b)  a reference to a technical problem is a reference to a technical problem with, or in accessing, the Court’s computerised court record system (for example, if remote electronic access is required to enter a judgment or order on the system and there is a technical problem with computer equipment or internet connection).
Division 2 Summary jurisdiction
4   Application
This Division applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (in this Division called the subject Act).
5   Interpretation
For the purposes of applying rules other than this Part to proceedings to which this Division applies, unless the context or subject matter otherwise indicates or requires, plaintiff means “prosecutor”.
5A   (Repealed)
6   Rules applicable
In addition to the rules mentioned in rules 2 and 3, the following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Division applies:
(a)  rule 4.10,
(b)  rules 6.15 and 6.16,
(c)  Part 19,
(d)  rule 34.1,
(e)  Part 36.
7   Commencement of proceedings
Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 246 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.
8   Copies of order
When the prosecutor files the summons, he shall lodge with the registrar two or more copies of a minute of the order which he claims.
9   Service
(1)  The summons and any affidavit in support of an application under section 246 of the subject Act shall not, unless the Court so directs, be served before the making of the order but shall be served on the defendant when the minute of order is served on him.
(2)  Subject to any Act, a minute of any order made under section 246 (1) or section 250 (b) of the subject Act and any affidavits used to obtain either of those orders shall be served personally upon the defendant.
10   Evidence of service
Evidence of service of any document in any proceedings to which this Division applies may be given by affidavit.
10A   Privilege
(1)  Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection.
(2)  Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.
(3)  Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence, whether on a trial or hearing or on any other occasion.
(3A)  Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit:
(a)  permit evidence in relation to the claim to be given by any other party by affidavit or otherwise, and
(b)  permit cross-examination on any affidavit used in support of the claim.
(4)  This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.
(5)  Subrules (1), (2) and (3) do not apply to an objection to produce any document or thing or to answer any question on the ground mentioned in subrule (4).
11   Pre-trial procedures
(1)  The procedures prescribed by this rule shall be complete before the trial of a case commences.
(2)  This rule does not apply where the person charged with an offence pleads guilty to the offence or where the Judge dismisses the charge under section 249 (1) or 251 of the subject Act.
(3)  In this rule, trial includes the hearing and determination of the case and the adjudication on the case under section 250 (a) of the subject Act.
(4)  The Judge may, of his own motion or on the application of a party:
(a)  make orders and give directions for the just and efficient disposal of the proceedings,
(b)  without limiting the generality of paragraph (a), make such orders and give such directions as may be appropriate relating to:
(i)  the giving by the plaintiff to the defendant of particulars or further and better particulars,
(ii)  the giving by the plaintiff to the defendant of a list of persons who it is expected will be called to give evidence at the trial or, if the Judge thinks fit, who have made statements in writing but who it is expected will not be so called,
(iii)  the giving by the plaintiff to the defendant of a copy of any statement made in writing by any person whose evidence it is expected will be given at the trial or, if that person has not made a statement in writing or if the Judge thinks fit, of a summary of the evidence which it is expected he will give at the trial,
(iv)  the giving by the plaintiff to the defendant of a list of documents or things which it is expected will be tendered in evidence at the trial,
(v)  the giving by the plaintiff to the defendant of copies of documents,
(vi)  inspection by the defendant of documents or of property,
(vii)  evidence, including evidence under section 69 of the Evidence Act,
(viii)  any admission or consent of the defendant under section 184 of the Evidence Act 1995, and
(ix)  any alibi.
(5)  The procedures prescribed by this rule are completed when the Judge certifies that in his opinion the pre-trial procedures prescribed by this rule have been completed.
11A   Procedure where defendant does not appear
cf Act No 27 of 1902, s 75A.
If a defendant charged with two or more offences, whether of a like or different nature, does not appear at the time and place appointed for the hearing of the charges by the orders relating thereto, the Judge, upon proof in the manner prescribed of the due service of the orders upon him a reasonable time before the time appointed for his appearance, may proceed to hear and determine all or any of the charges together and adjudicate thereon in the absence of the defendant.
11B   Defendant to plead
cf Act No 27 of 1902, s 78.
(1)  Where the defendant appears at the hearing and has been provided with a written copy of the charges against him, the substance of the order under section 246 (1) of the subject Act shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him.
(2)  If he thereupon admits the truth of the charges and shows no sufficient cause why he should not be convicted or why an order should not be made against him, the Judge shall convict him or make an order against him accordingly.
(3)  If he does not admit the truth of the charges, the Judge shall proceed to hear the prosecutor and the witnesses whom he examines and such other evidence as he adduces in support of the charges and to hear the defendant and the witnesses whom he examines and such other evidence as he adduces in his defence.
12   (Repealed)
13   Termination of proceedings in a court of petty sessions
(1)  A Local Court is notified under section 255 of the subject Act of the commencement of proceedings under the subject Act for an offence when a minute of the order made under section 246 of the subject Act is delivered to a Magistrate or an authorised officer within the meaning of the Criminal Procedure Act 1986 at the Local Court before which the proceedings for that offence are pending.
(2)  A notice stating that the proceedings in the Local Court for the offence charged in the order have been terminated shall be served on the defendant with the minute of order under section 246 of the subject Act.
14   Arrest warrants
(cf former Part 42, rule 7)
(1)  Subject to rules of court:
(a)  if, by subpoena or otherwise, the Court makes an order, whether under an Act or under rules of court:
(i)  for a person to attend the Court for any purpose, or
(ii)  for a person to produce any document or thing to the Court, and
(b)  the person fails to comply with the order,
the Court may issue, or make an order for the issue of, a warrant for the person’s arrest.
(2)  Subject to rules of court, an arrest warrant may be issued without notice to the person.
(3)  The Court may revoke an arrest warrant.
(4)  An arrest warrant is sufficient authority for any person to whom it is addressed, with the assistance of such police officers as may be necessary, to arrest the person named in the warrant, to convey the person to the place specified in the warrant and to deliver the person into the custody of the Court sitting at that place.