Criminal Procedure Act 1986 No 209
Current version for 14 May 2020 to date (accessed 6 June 2020 at 12:40)
Schedule 2
Schedule 2 Savings, transitional and other provisions
(Section 315)
Part 1 Preliminary
1   Regulations
(1)  The regulations may include provisions of a savings or transitional nature consequent on the enactment of the following Acts or provisions of Acts—
Criminal Legislation Amendment Act 2001, to the extent that it amends this Act
Road Transport Legislation Amendment (Public Transport Lanes) Act 2004, but only in relation to the amendments made to this Act
Courts Legislation Amendment Act 2006, to the extent that it amends this Act
Crimes and Courts Legislation Amendment Act 2006, but only to the extent to which it amends this Act.
Evidence Amendment Act 2007, to the extent that it amends this Act
Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008, but only to the extent to which it amends this Act
any other Act that amends this Act
(2)  A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or from a later date.
(3)  To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as—
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State), in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on Schedule 1.4 to Crimes Legislation Amendment Act 1997
2   Application of amendments to Part 10
The amendments to this Act made by Schedule 1.4 [4]–[13] to the Crimes Legislation Amendment Act 1997 do not apply in respect of a summary offence if the person charged with the indictable offence to which the summary offence is related is committed for trial for the indictable offence before the commencement of the amendments.
Part 3 Provisions consequent on Schedule 5 to Crimes Legislation Amendment Act 1998
3   Application of amendments to Table 2 to Part 9A
Table 2 to Part 9A, as amended by Schedule 5 [1] and [2] to the Crimes Legislation Amendment Act 1998, applies to proceedings for an offence with which a person is charged after (but not before) the commencement of those amendments, irrespective of when the offence was alleged to have been committed.
4   Application of amendments to Part 10
The amendments to this Act made by Schedule 5 [3]–[9] to the Crimes Legislation Amendment Act 1998 do not apply in respect of a back up offence or a related offence if the person charged with the indictable offence to which the back up offence or the related offence is related is committed for trial for the indictable offence before the commencement of the amendments.
Part 4 Provisions consequent on enactment of Crimes Legislation Amendment (Sentencing) Act 1999
Division 1 Preliminary
5   Definitions
In this Part—
amended legislation means any Act or instrument amended by Schedule 2, 3, 4 or 5 to the 1999 amending Act, as so amended.
appointed day means—
(a)  in relation to a provision of the old legislation that has been repealed or amended by the 1999 amending Act, the day on which the repeal or amendment commences, or
(b)  in relation to a new provision inserted into the amended legislation by the 1999 amending Act, the day on which the new provision commences.
old legislation means—
(a)  any Act or instrument repealed by Schedule 1 to the 1999 amending Act, as in force immediately before its repeal, and
(b)  any Act or instrument amended by Schedule 2, 3, 4 or 5 to the 1999 amending Act, as in force immediately before its amendment.
Division 2 Crimes Act 1900
6   Definitions
In this Division—
1900 Act means the Crimes Act 1900, as in force immediately before the appointed day.
7   Certificates under section 358
A certificate prepared in accordance with section 358 of the 1900 Act is taken to have been prepared in accordance with section 127 of this Act.
8   Notices under section 405A and 405AB
A notice served on a person for the purposes of section 405A or 405AB of the 1900 Act is taken to have been served on the person for the purposes of section 48 or 49 of this Act, as the case requires.
9   Depositions under section 406
A deposition made in accordance with section 406 of the 1900 Act is taken to have been made in accordance with section 111 of this Act.
10   Certificate evidence under section 414A
Any certificate prepared for the purposes of a provision of section 414A of the 1900 Act is taken to have been prepared for the purposes of section 109 or 110 of this Act, as the case requires.
11   Operation of section 442A
Section 442A of the 1900 Act continues to have effect in relation to offences under section 61B, 61C and 61D of that Act, as in force before their repeal on 17 March 1991 by the Crimes (Amendment) Act 1989.
12   Orders under section 578
Any order that, immediately before the appointed day, was in force under section 578 of the 1900 Act is taken to be an order in force under section 119 of this Act, and may be amended and revoked accordingly.
Division 4 General
15   Application of section 95
(1)  Section 95 does not apply to the trial of a person charged with an offence before 10 June 1994 (the date on which the right to make unsworn dock statements was originally abolished).
(2)  The re-enactment by section 95 of section 404A of the Crimes Act 1900 does not limit the operation of section 30 of the Interpretation Act 1987 in relation to the repeal of section 404A by the 1999 amending Act.
16   Application of section 105
Nothing in section 105 authorises the admission of evidence of a kind that was inadmissible immediately before 14 July 1981 (the date on which section 409B of the Crimes Act 1900 commenced).
17   Continued operation of Forfeited Recognizances and Bail Act 1954
The Forfeited Recognizances and Bail Act 1954 continues to apply to a recognizance entered into before the commencement of this clause as if that Act had not been repealed.
18   Delegations
Any delegation that was in force immediately before the commencement of the 1999 amending Act under a provision of the old legislation for which there is a corresponding provision in the amended legislation is taken to be a delegation in force under the corresponding provision of the amended legislation.
19   Construction of certain references
Subject to the Crimes (Sentencing Procedure) Act 1999, the Crimes (Administration of Sentences) Act 1999 and the regulations under this Act, in any Act or instrument—
(a)  a reference to a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding provision of the amended legislation, and
(b)  a reference to any act, matter or thing referred to in a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding act, matter or thing referred to in the corresponding provision of the amended legislation.
20   General saving
Subject to the Crimes (Sentencing Procedure) Act 1999, the Crimes (Administration of Sentences) Act 1999 and the regulations under this Act—
(a)  anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation may be continued and completed under the old legislation as if the 1999 amending Act had not been enacted, and
(b)  subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in the amended legislation (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended legislation.
Part 5 Provisions consequent on enactment of Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001
21   Application of Division 2A of Part 3 (Pre-trial disclosure—case management)
Division 2A of Part 3 extends to proceedings for an offence that were instituted before the commencement of that Division, but does not apply to any such proceedings if the accused person was committed for trial before that commencement.
22   Application of amendments to section 48 (Notice of alibi)
The amendment made to section 48 by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 applies to proceedings in which the accused person is committed for trial after the commencement of the amendment.
23   Application of substituted section 54 (Time within which indictment to be presented)
Section 54, as substituted by the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001, does not apply to proceedings in which the accused person was committed for trial before the substitution of that section.
24   Application of section 63A (Amendment of indictment)
Section 63A applies to indictments presented after the commencement of that section.
25   Application of Part 7
(1)  The amended Part does not apply in relation to criminal proceedings the hearing of which began before it was amended. The Part, as in force before it was amended, continues to apply in relation to such proceedings.
(2)  The amended Part applies in relation to a requirement (whether by subpoena or other procedure) to produce a document on or after its amendment even if the requirement was issued before it was amended.
(3)  The amended Part applies in respect of a protected confidence whether made before or after it was amended.
(4)  In this clause—
amended Part means Part 7 as amended by the amending Act.
protected confidence has the meaning it has in Part 7.
26   Definitions
In this Part—
amended Criminal Procedure Act means this Act, as amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001.
amended Local Courts Act means the Local Courts Act 1982, as amended by the Justices Legislation Repeal and Amendment Act 2001.
old Act means this Act, as in force before its amendment by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001.
renumbered provision means a provision of this Act that is renumbered by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001.
repealed provision means a provision of an Act that is repealed by one of the 2001 amending Acts.
27   Consequences of abolition of office of Clerk of the Peace
(1)  The registry functions of the abolished office of the Clerk of the Peace are the functions of the registrars and other officers of the Supreme Court or the District Court.
(2)  Subclause (1) has effect subject to this Act and any other Act and, in particular, does not affect the functions of the Criminal Listing Director.
(3)  A reference in any other Act, in any instrument made under any Act or in any other instrument of any other kind to the Clerk of the Peace is to be read as a reference to such person or persons as may be prescribed.
28   General saving relating to proceedings
(1)  If any proceedings commenced, or any other thing commenced or done, under a repealed provision still having effect or not completed immediately before the repeal could have been done or commenced under the corresponding provision of the amended Criminal Procedure Act or the amended Local Courts Act—
(a)  the thing done continues to have effect, or
(b)  the proceedings or other thing commenced may be completed.
(2)  A decision, order or a sentence made by a Local Court, or any other person or body, that is completed under subclause (1) may be enforced as if the provisions of the old Act and the Justices Act 1902 and any repealed instruments under those Acts were still in force.
(3)  Any act, matter or thing done or omitted to be done under a repealed provision or renumbered provision, and having force immediately before the commencement of a provision of an Act that replaces the repealed provision or renumbers the provision, is on that commencement taken to be done under the corresponding provision of the amended Criminal Procedure Act or Local Courts Act (as the case requires).
29   Construction of certain references
(1)  Except as provided by this clause, a reference in any other Act or instrument—
(a)  to a repealed provision for which there is a corresponding provision in the amended Criminal Procedure Act, or to a renumbered provision, extends to the corresponding provision of the amended Criminal Procedure Act, and
(b)  to a repealed provision for which there is a corresponding provision in the amended Local Courts Act extends to the corresponding provision of the amended Local Courts Act, and
(c)  to any act, matter or thing referred to in a repealed provision or a renumbered provision extends to the corresponding act, matter or thing referred to in the corresponding provision of the amended Criminal Procedure Act or amended Local Courts Act.
(2)  The regulations may provide that a reference in any other Act or instrument or a specified instrument to a repealed provision or a renumbered provision is to be read as a reference to another specified instrument (or a specified provision of such an instrument).
30   Functions of justices conferred on Magistrates or Local Courts
In any Act or statutory rule under which a function is conferred on one or more justices (other than an authorised justice), a reference to a justice in connection with the function is taken to be a reference to a Magistrate or Local Court, if the function is, because of the 2001 amending Acts, instead conferred on a Magistrate or Local Court.
31   Previous acts done by justices
An act, matter or thing done or omitted to be done by a justice (other than a Magistrate or an authorised justice within the meaning of the Search Warrants Act 1985) before the commencement of this clause in accordance with a provision of an Act or a statutory rule continues to have effect after that commencement as if the Act, matter or thing were done by an authorised officer or a Magistrate (as the case requires).
32   Offences committed before commencement of clause
(1)  The provisions of the amended Criminal Procedure Act, and any instruments made under that Act, apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were not commenced before the commencement of this clause.
(2)  The provisions of the old Act and the Justices Act 1902, and any instruments made under those Acts, continue to apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were commenced before the commencement of this clause.
(3)  For the purposes of this clause, proceedings are taken to have been commenced in respect of an offence if an information was laid or a complaint made, or an attendance notice issued, in relation to the offence, before the commencement of this clause.
(4)  This clause applies to all proceedings for offences (including committal proceedings).
(5)  This clause does not apply to or in respect of Parts 4A, 5, 5A and 5B of the Justices Act 1902.
33   Provisions about appearances and service of documents
Without limiting the generality of any other provision of this Part, the provisions of the old Act and any instrument made under that Act continue to apply to or in relation to—
(a)  requiring the appearance of accused persons, witnesses and other persons at proceedings relating to offences to which the old Act and the Justices Act 1902 continue to apply, and
(b)  the issue and enforcement of and requirements for warrants of apprehension and commitment relating to offences to which the old Act and the Justices Act 1902 continue to apply, and
(c)  the service of process and other documents relating to offences to which the old Act and the Justices Act 1902 continue to apply.
34   Previous warrants
A warrant issued under the Justices Act 1902 before the commencement of this clause and in force before that commencement continues to have effect, and may be executed and enforced, as if that Act were still in force.
35   Costs
Without limiting the generality of any other provision of this Part, the provisions of the Justices Act 1902 and any instrument made under that Act continue to apply to or in relation to—
(a)  orders for, and the payment of, costs by accused persons or other persons in any proceedings commenced under that Act before the commencement of this clause, and
(b)  the enforcement of any such order.
36   Protection and immunities of justices
A provision of an Act or a statutory instrument that confers on a person or body the same protection and immunities as a justice of the peace (however expressed) is taken to confer on the person or body—
(a)  the same protection and immunities as are conferred on a Magistrate, if the protection and immunities are conferred in respect of the exercise of judicial functions or functions required to be exercised judicially, or
(b)  the same protection and immunities as are conferred on a registrar of a Local Court, if the protection and immunities are conferred in respect of the exercise of any other function.
37   Depositions
A provision of an Act or a statutory rule relating to the making or use (including the admissibility) of a deposition of a witness made before the commencement of this clause, and in force immediately before that commencement, continues to apply to a deposition made in accordance with any applicable law before the commencement of this clause.
38   Translation of old references to new references
References in an Act (other than this Act), in any instrument made under an Act or in any other instrument, to an expression listed in Column 1 of the Table to this clause are taken to be references to the expression listed next to that expression in Column 2 of the Table.
Table
Old expression
New expression
justices in petty sessions
Local Court
summary proceedings before justices
summary proceedings before a Local Court
Act regulating summary proceedings before justices
Criminal Procedure Act 1986, if the reference relates to proceedings for an offence
Local Courts Act 1982, if the reference relates to any other proceedings
clerk of courts of petty sessions or clerk of petty sessions
registrar of a Local Court
clerk of a Local Court
registrar of a Local Court
laying an information for an offence, if the reference is to an offence required to be dealt with by a Local Court
issuing and filing a court attendance notice
making a complaint or issuing a summons, if the reference is to an offence to be dealt with by a Local Court (other than under the Local Courts (Civil Claims) Act 1970)
issuing and filing a court attendance notice
making a complaint or issuing a summons, if the reference is to a matter required to be dealt with by a Local Court (other than an offence under the Local Courts (Civil Claims) Act 1970)
issuing and filing an application notice
issue of an attendance notice for an offence, if the reference is to an offence required to be dealt with by a Local Court
issuing and filing a court attendance notice
warrant of apprehension or warrant to apprehend, if the reference is to a warrant issued under the Justices Act 1902
arrest warrant
deposition, if the reference is to evidence given by a witness before a Magistrate or Local Court
transcript of evidence
39   Authorised justices under Search Warrants Act 1985
(1)  Nothing in the 2001 amending Acts affects the appointment of any existing authorised justice and any such person is taken to have been appointed under the Search Warrants Act 1985, as amended by the Justices Legislation Repeal and Amendment Act 2001.
(2)  In this clause—
existing authorised justice means a person who was, immediately before the commencement of the amendments made to section 3 of the Search Warrants Act 1985 by the Justices Legislation Repeal and Amendment Act 2001, an authorised justice within the meaning of the Search Warrants Act 1985.
Part 8 Provisions consequent on enactment of Criminal Procedure Further Amendment (Evidence) Act 2005
40   Definition
In this Part—
41   Extension of definition of “prescribed sexual offence”
(1)  The amendments made by the amending Act to the definitions of prescribed sexual offence in section 3 (1), child sexual assault offence in section 91 and sexual assault offence in section 295 extend to proceedings in respect of an offence, and to civil proceedings (insofar as the amendments are relevant to civil proceedings), that were instituted or partly heard before the commencement of the amendments.
Note.
 Division 1B of Part 3.10 of Chapter 3 of the Evidence Act 1995 applies the definition of sexual assault offence in section 295 to certain civil proceedings.
(2)  Subclause (1) does not affect the admissibility of any evidence admitted in proceedings before the commencement of those amendments or otherwise affect the validity of anything done, or omitted to be done, before that commencement.
(3)  In particular, the application, as a result of an amendment referred to in subclause (1), of section 91 (8) or 93 to proceedings to which it did not apply before the commencement of Schedule 1 [1] to the amending Act does not affect the validity of any direction given under section 91 before that commencement. However if, as a result of an amendment referred to in subclause (1), section 91 (8) or 93 applies in respect of a person directed to attend committal proceedings, and the person has not yet attended, the Magistrate must, on application by the prosecutor, revoke the direction.
(4)  The amendments made to Division 3 of Part 5 of Chapter 6 by the amending Act extend to proceedings for a new trial ordered before the commencement of the amendments, including new trial proceedings that have been instituted or partly heard.
42   Improper questions
(1)  Section 275A, as inserted by the amending Act, extends to proceedings instituted or partly heard before the commencement of that section.
(2)  However, that section does not affect the admissibility of any evidence admitted in any proceedings before that commencement or otherwise affect the validity of anything done, or omitted to be done, before that commencement.
43   Sensitive evidence
Part 2A of Chapter 6, as inserted by the amending Act, extends to a criminal investigation instituted, or criminal proceedings instituted or partly heard, before the commencement of that Part.
44   Evidence of complainant to be given in camera
(1)  New section 291, and sections 291A, 291B and 291C as inserted by the amending Act, extend to proceedings instituted or partly heard before the commencement of new section 291, subject to this clause.
(2)  The replacement of former section 291 by the amending Act does not affect the validity of any direction made under that section before the replacement of that section that requires the proceedings to be held partly or entirely in camera.
(3)  However, unless the court has already directed under former section 291 that the evidence of the complainant be given in camera, new section 291 applies in respect of any evidence given by the complainant after the commencement of new section 291. That is, such evidence must be given in camera unless the court otherwise directs under new section 291.
(4)  In this clause—
former section 291 means section 291, as in force before its replacement by the amending Act.
new section 291 means section 291, as inserted by the amending Act.
45   Other amendments relating to giving of evidence by complainant
The amendments made by the amending Act to section 294B and section 294C, as inserted by the amending Act, extend to proceedings instituted or partly heard before the commencement of those amendments.
Part 9 Provisions consequent on enactment of Criminal Procedure Amendment (Prosecutions) Act 2005
46   Definitions
In this Part—
applicable signing provision means section 126 or any corresponding provisions of this Act previously in force that applied to the signing of indictments at the time concerned.
introduction day means the day on which the Bill for the Criminal Procedure Amendment (Prosecutions) Act 2005 was first introduced into Parliament.
relevant period means the period commencing on 13 July 1987 and ending immediately before the introduction day.
47   Validation of certain indictments
(1)  This clause applies to an indictment signed by a legal practitioner during the relevant period that purports to be signed for and on behalf of the Director of Public Prosecutions in circumstances where—
(a)  the legal practitioner was instructed to prosecute the criminal proceedings to which the indictment related on behalf of the Director of Public Prosecutions, and
(b)  the legal practitioner was not authorised by or under the applicable signing provision to sign the indictment for and on behalf of the Director of Public Prosecutions.
(2)  Any indictment to which this clause applies that, but for this subclause, would have been invalid only because it had not been signed by a person authorised to sign it under the applicable signing provision, is taken at the time it was signed and at all relevant times after it was signed to have been a valid indictment.
(3)  Without limiting subclause (2), any criminal proceedings (including any conviction or acquittal of the defendant or sentence imposed on the defendant) that would otherwise have been invalid or a nullity only because the proceedings related to an indictment validated by subclause (2) are taken to be, and always to have been, valid.
(4)  However, nothing in this clause affects the validity of a particular indictment to which this clause applies or criminal proceedings relating to such an indictment if the indictment or proceedings (or both) were held to be invalid or a nullity before the introduction day in a judgment, order or other decision of a court.
48   Application of section 130A
(1)  Section 130A, as inserted by the amending Act, applies only to pre-trial orders made after the commencement of that section (irrespective of when the relevant sexual offence proceedings commenced).
(2)  In this clause, amending Act means the Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005.
Part 11 Provisions consequent on enactment of Courts Legislation Amendment Act 2006
49   Definition
In this Part—
50   Amendments
(1)  An amendment made to this Act by the amending Act does not extend to proceedings instituted before the commencement of that amendment.
(2)  Such proceedings may be dealt with as if the amendment had not commenced.
Part 12 Provisions consequent on enactment of Criminal Procedure Amendment (Sexual and Other Offences) Act 2006
51   Amendments
(1)  The amendments made by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings may continue as if that Act had not been enacted.
(2)  This clause does not apply to the amendments inserted by Schedule 1 [10] to the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006.
Part 13 Provisions consequent on enactment of Crimes and Courts Legislation Amendment Act 2006
52   Changes to limitation period
Section 179 (3), as inserted by the Crimes and Courts Legislation Amendment Act 2006, extends to a summary offence that relates to the death of a person before the commencement of that subsection, but only if the period for commencement of proceedings in relation to the offence under section 179 (1) has not expired on the commencement of section 179 (3).
53   Existing warrants
Section 237 (1A)–(1C), as inserted by the Crimes and Courts Legislation Amendment Act 2006, does not apply to a warrant issued before the commencement of those provisions and any such warrant expires at the end of 20 years from the date of issue.
Part 14 Provisions consequent on enactment of Criminal Procedure Amendment (Vulnerable Persons) Act 2007
54   Definition
In this Part—
55   Amendments
The amendments made to this Act by the amending Act do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings are to be dealt with as if the amending Act had not been enacted.
56   Effect of repeal of Evidence (Children) Act 1997
Any proceedings to which the Evidence (Children) Act 1997 applied that were pending immediately before the repeal of that Act by the amending Act are to continue to be dealt with as if that Act had not been repealed.
Part 15 Provisions consequent on enactment of Criminal Procedure Amendment (Local Court Process Reforms) Act 2007
57   Pending proceedings
The amendment made to section 265 by the Criminal Procedure Amendment (Local Court Process Reforms) Act 2007 does not extend to proceedings commenced before the commencement of the amendment and such proceedings may continue as if that amendment had not been enacted.
Part 16 Provisions consequent on enactment of Evidence Amendment Act 2007
58   Improper questions and certain warnings
(1)  An amendment made to section 275A or 294 by the Evidence Amendment Act 2007 does not apply in relation to any proceeding the hearing of which began before the commencement of the amendment.
(2)  Sections 275A and 294, as in force immediately before the commencement of the amendment, continue to apply to proceedings the hearing of which began before that amendment.
Part 17 Provisions consequent on enactment of Criminal Legislation Amendment Act 2007
59   Changes to pre-trial disclosure requirements
(1)  The amendments made to Division 3 of Part 3 of Chapter 3 by the Criminal Legislation Amendment Act 2007 do not apply in respect of any pre-trial disclosure that is carried out pursuant to an order made by the court under section 136 before the commencement of the amendments.
(2)  The amendments made to sections 150 and 151 by the Criminal Legislation Amendment Act 2007 do not apply in respect of a trial that was listed for hearing before the commencement of the amendments.
60   Withdrawal of matter by prosecutor
The amendments made to sections 205 and 208 by the Criminal Legislation Amendment Act 2007 apply only to the dismissal of a matter on or after the commencement of the amendments.
Part 18 Provisions consequent on enactment of Courts and Crimes Legislation Further Amendment Act 2008
61   Proceedings for offences
Section 170, as amended by Schedule 7 to the Courts and Crimes Legislation Further Amendment Act 2008, does not apply to proceedings commenced before the commencement of that Schedule.
Part 19 Provisions consequent on enactment of Criminal Procedure Amendment (Case Management) Act 2009
62   Section 130A
The substitution of section 130A by the Criminal Procedure Amendment (Case Management) Act 2009 applies only in respect of proceedings in which the indictment was presented or filed on or after that substitution.
63   Case management provisions
(1)  Division 3 of Part 3 of Chapter 3, as substituted by the Criminal Procedure Amendment (Case Management) Act 2009, applies only in respect of proceedings in which the indictment was presented or filed on or after that substitution.
(2)  Division 3 of Part 3 of Chapter 3, as in force before its substitution by the Criminal Procedure Amendment (Case Management) Act 2009, continues to apply in respect of proceedings in which the indictment was presented or filed before that substitution.
Part 20 Provisions consequent on enactment of Crimes Amendment (Child Pornography and Abuse Material) Act 2010
64   Use of random sample evidence
(1)  Part 4A of Chapter 6, as inserted by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, extends to proceedings instituted or partly heard before the commencement of that Part, which were not finally disposed of before that commencement.
(2)  Accordingly, that Part extends to offences under Division 15A of Part 3 of the Crimes Act 1900 alleged to have been committed before the commencement of Part 4A of Chapter 6.
65   References to child abuse material
A reference in this Act to child abuse material includes a reference to child pornography within the meaning of section 91H of the Crimes Act 1900 (as in force before that section was replaced by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010).
66   Extension of protections afforded to complainants to other witnesses
(1)  Section 294D, as inserted by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, extends to proceedings instituted or partly heard before the commencement of that section, which were not finally disposed of before that commencement.
(2)  However, section 294D does not affect the admissibility of any evidence given in proceedings before the commencement of that section or otherwise affect the validity of anything done, or omitted to be done, before that commencement.
Part 21 Provision consequent on enactment of Courts and Crimes Legislation Amendment Act 2010
67   Changes to the definition of “offence involving violence”
The amendment made by the Courts and Crimes Legislation Amendment Act 2010 to the definition of offence involving violence in section 94 applies in respect of committal proceedings that a Magistrate first starts to hear after the commencement of the amendment.
Part 22 Provisions consequent on enactment of Schedule 12.1 to Courts and Crimes Legislation Further Amendment Act 2010
68   Evidence in sexual offence proceedings
(1)  The amendments made to this Act by Schedule 12.1 [1]–[3] to the amending Act extend to proceedings commenced but not completed before the commencement of those amendments.
(2)  However, subclause (1) does not affect the admissibility of any evidence given in proceedings before the commencement of those amendments or otherwise affect the validity of anything done, or omitted to be done, before that commencement.
(3)  The amendments made to this Act by Schedule 12.1 [4]–[7] to the amending Act do not extend to proceedings in a court if the proceedings have commenced in that court before the commencement of those amendments.
(4)  In this clause—
Part 23 Provisions consequent on enactment of Schedule 12.2 to Courts and Crimes Legislation Further Amendment Act 2010
69   Conduct of committal proceedings in the absence of the public
The amendment made to section 56 by the Courts and Crimes Legislation Further Amendment Act 2010 applies only to committal proceedings instituted on or after the commencement of the amendment.
70   Changes to trial by judge alone provisions
Section 132, as in force before its substitution by the Courts and Crimes Legislation Further Amendment Act 2010, continues to apply to criminal proceedings that were commenced in the Supreme Court or District Court before that substitution.
71   New penalties to apply prospectively
An amendment made to Schedule 1 by the Courts and Crimes Legislation Further Amendment Act 2010 applies only in respect of an offence that is committed, or alleged to have been committed, on or after the commencement of the amendment.
72   Case management provisions
A provision of Division 2A of Part 5 of Chapter 4 applies only in respect of proceedings that commence on or after the commencement of that provision.
Part 25 Provisions consequent on enactment of Schedule 1.1 to Courts and Crimes Legislation Amendment Act 2012
73   Changes in respect of Schedule 1 offences
(1)  An amendment made to section 267 or 268 by the Courts and Crimes Legislation Amendment Act 2012 applies only in respect of an offence that is committed, or alleged to have been committed, on or after the commencement of the amendment.
(2)  An amendment made to Schedule 1 by the Courts and Crimes Legislation Amendment Act 2012 extends to an offence that was committed, or alleged to have been committed, before the commencement of the amendment unless the accused person has been committed for trial or sentence before that commencement.
74   Use of random sample evidence
(1)  The amendments made to Part 4A of Chapter 6 by the Courts and Crimes Legislation Amendment Act 2012 extend to proceedings instituted or partly heard before the commencement of the amendments, which were not finally disposed of before that commencement.
(2)  Accordingly, that Part as so amended extends to offences under Division 15A of Part 3 of the Crimes Act 1900 alleged to have been committed before the commencement of the amendments to Part 4A of Chapter 6.
Part 26 Provision consequent on enactment of Crimes Legislation Amendment Act 2012
75   Sensitive evidence—audio recordings
The amendments made to Part 2A of Chapter 6 by the Crimes Legislation Amendment Act 2012 extend to a criminal investigation instituted, or criminal proceedings instituted or partly heard, before the commencement of Schedule 2 to that Act.
Part 27 Provisions consequent on enactment of Criminal Procedure Amendment (Court Costs Levy) Act 2013
76   Court costs levy applies to convictions in commenced proceedings
The amendments made by the Criminal Procedure Amendment (Court Costs Levy) Act 2013 extend to proceedings commenced but not finally determined immediately before the commencement of the amendments.
77   Review of amendments
(1)  The Minister is to ensure that the operation of the amendments made by the Criminal Procedure Amendment (Court Costs Levy) Act 2013 are reviewed to determine whether the policy objectives of those amendments remain valid and whether the relevant terms of this Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 12 months from the date of commencement of section 211A.
78   Definition
In this Part, amending Act means the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013.
79   Case management provisions
(1)  An amendment of Division 3 of Part 3 of Chapter 3 by the amending Act applies only in respect of proceedings in which the indictment was presented or filed on or after the commencement of the amendment.
(2)  Accordingly, a provision of Division 3 of Part 3 of Chapter 3, as in force before its amendment by the amending Act, continues to apply in respect of proceedings in which the indictment was presented or filed before the commencement of the amendment.
80   Review of policy objectives of amending Act
(1)  The Minister is to review the amendments made by the amending Act to determine—
(a)  whether they have been effective in reducing delays in proceedings on indictment, and
(b)  whether they have been effective in promoting the efficient management and conduct of trials, and
(c)  whether the interests of justice have been affected in relation to parties to proceedings on indictment, and
(d)  the cost impacts of the procedures.
(2)  The review is to be undertaken as soon as possible after the period of 2 years from the commencement of this clause.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.
Part 29 Provisions relating to child sexual offence evidence pilot scheme
Division 1 Preliminary
81   Duration of pilot scheme
This Part operates from 31 March 2016 until 31 March 2019 (or such later date as is prescribed by the regulations).
82   Definitions
In this Part—
child means a child who is under 18 years of age.
children’s champion or witness intermediary—see clause 88.
Court means the District Court.
pre-recorded evidence hearing—see clause 84.
prescribed places means the following—
(a)  Newcastle,
(b)  Downing Centre, Sydney,
(c)  such other places as may be prescribed by the regulations.
prescribed sexual offence—see section 3 (1).
recording means—
(a)  an audio recording, or
(b)  a video and audio recording.
witness, in relation to proceedings to which this Part applies, means a child who is a complainant or prosecution witness in the proceedings.
83   Application of Part
(1)  This Part applies to proceedings before the Court sitting at a prescribed place in relation to a prescribed sexual offence whenever committed (or, if the proceedings relate to more than one offence, at least one of those offences is a prescribed sexual offence whenever committed) commenced by a court attendance notice filed or indictment presented—
(a)  on or after the commencement of this Part, or
(b)  before the commencement of this Part but only if the matter—
(i)  was not listed for trial before that commencement, or
(ii)  was listed for trial before that commencement, but was or is re-listed for trial after that commencement.
(2)  This Part applies at any stage of such a proceeding, including an appeal or rehearing.
(3)  The amendments to subclause (1) by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 are taken to have commenced on the commencement of this Part.
Division 2 Pre-recorded evidence hearings
84   Pre-recorded evidence hearing
(1)  Subject to any contrary order of the Court, evidence of a witness in proceedings to which this Part applies who is less than 16 years of age when the accused person was committed for trial or sentence must be given at a hearing under clause 85 (a pre-recorded evidence hearing) in accordance with that clause.
(2)  The Court may, on its own motion or on the application of a party to proceedings to which this Part applies, order that evidence of a witness in the proceedings who is 16 or more years of age when the accused person was committed for trial or sentence, be given at a pre-recorded evidence hearing in accordance with clause 85.
(3)  The evidence is to be subsequently dealt with in accordance with clause 85.
(4)  The Court may make an order under subclause (1) or (2) only if it is satisfied that it is appropriate to do so in the interests of justice.
(5)  The wishes and circumstances of the witness and the availability of court and other facilities necessary for a pre-recorded evidence hearing to take place are the primary factors to be considered by the Court in determining whether to make an order under subclause (1).
(6)  Without limiting the other factors that the Court may take into account in determining whether to make an order under subclause (1), the Court may also take into consideration the following—
(a)  sufficiency of preparation time for both parties,
(b)  continuity and availability of counsel at both the pre-recorded evidence hearing and the trial,
(c)  any other relevant matter.
(7)  A witness to whom an order under subclause (2) applies is entitled to give evidence in accordance with the order even if the person becomes an adult.
85   Provisions relating to timing and other aspects of pre-recorded evidence hearing
(1)  A pre-recorded evidence hearing is to be held as soon as practicable after the date listed for the accused person’s first appearance in the Court in the proceedings, but not before the prosecution has made the pre-trial disclosure required by section 141.
(2)  At the pre-recorded evidence hearing, the witness is entitled to give, and may give—
(a)  evidence in chief—as provided by section 306U, and
(b)  any other evidence—by closed-circuit television facilities or by means of any other technology prescribed by the regulations for the purposes of this clause.
(3)  The pre-recorded evidence hearing is to be held in the absence of the jury (if any).
(4)  Evidence given at the pre-recorded evidence hearing is to be recorded and subsequently viewed or heard (or both) by the Court in the presence of the jury (if any).
(5)  A witness who gives evidence at a pre-recorded evidence hearing must not, unless the witness otherwise chooses, be present in the Court, or be visible or audible to the Court by closed-circuit television or other technology while it is viewing or hearing a recording made as provided by section 306U or made at the hearing.
(6)  If evidence in chief is given under subclause (2) (a), section 306U (3) is to be read as if it required the witness to be available for cross-examination or re-examination under subclause (2) (b).
86   Access to recording and transcripts
(1)  The accused person, and his or her Australian legal practitioner (if any), are not entitled to be given possession of a recording made under this Part or a copy of it (despite anything to the contrary in this Act or the Evidence Act 1995).
(2)  However, the accused person and his or her Australian legal practitioner (if any) are to be given reasonable access to the recording to enable them to listen or view the recording, or both.
(3)  This may require access to be given on more than one occasion.
(4)  The regulations may make provision for the procedures to be followed in connection with the giving of access under this clause, and may provide for the giving of access to other persons assisting the accused person or his or her Australian legal practitioner.
(5)  The Court may order that a transcript be supplied to the Court or jury (if any), or both, of all or part of a recording made under this Part if it appears to the Court that a transcript would be likely to aid its or the jury’s comprehension of the evidence.
87   Witness may give further evidence only with leave
(1)  A witness in proceedings to which this Part applies whose evidence is pre-recorded at a pre-recorded evidence hearing cannot give further evidence without the leave of the Court.
(2)  An application for leave may be made by any party to the proceedings.
(3)  The Court must not give leave under subclause (1) unless it is satisfied—
(a)  that the witness or other party is seeking leave because of becoming aware of a matter of which the party could not reasonably have been aware at the time of the recording, or
(b)  it is otherwise in the interests of justice to give leave.
(4)  The further evidence is, so far as practicable, to be given by pre-recording at a hearing in the same way as the original pre-recorded evidence unless the Court otherwise directs.
(5)  Subclause (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.
Division 3 Children’s champions
88   Role of children’s champions
(1)  A person appointed as a children’s champion (who may also be called a witness intermediary) for a witness is to communicate—
(a)  to the witness, questions put to the witness, and
(b)  to any person asking such a question, the answers given by the witness in replying to them,
and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
(2)  A children’s champion for a witness is an officer of the Court and has a duty to impartially facilitate the communication of, and with, the witness so the witness can provide the witness’s best evidence.
89   Appointment of children’s champions
(1)  Victims Services in the Department of Justice (or another agency nominated by the Attorney General) is to establish a panel of persons who are suitable persons to be appointed as children’s champions.
(2)  A person must not be included on a panel unless the person has a tertiary qualification in Psychology, Social Work, Speech Pathology, Teaching or Occupational Therapy or such other qualifications, training, experience or skills as may be prescribed by the regulations (or both).
(3)  For the purposes of proceedings to which this Part applies, the Court—
(a)  must (except as provided by subclause (4)) appoint a children’s champion for a witness who is less than 16 years of age, and
(b)  may, on its own motion or the application of a party to the proceedings, appoint a children’s champion for a witness who is 16 or more years of age if satisfied that the witness has difficulty communicating.
(4)  The Court is not required to appoint a children’s champion if it considers—
(a)  there is no person on the panel established under this clause available to meet the needs of the witness, or
(b)  it is otherwise not practical to appoint a children’s champion, or
(c)  it is unnecessary or inappropriate to appoint a children’s champion, or
(d)  it is not otherwise in the interests of justice to appoint a children’s champion.
(5)  A person must not be appointed as a children’s champion for a witness if the person—
(a)  is a relative, friend or acquaintance of the witness, or
(b)  has assisted the witness in a professional capacity (otherwise than as a children’s champion), or
(c)  is a party or potential witness in the proceedings concerned.
(6)  The children’s champion appointed for a witness must, if requested by the Court, provide a written report, on the communication needs of the witness.
(7)  A copy of any such report is to be provided to the parties to the proceedings concerned before the witness gives evidence in the proceedings.
90   Giving of evidence of witness in presence of children’s champion
(1)  Subject to the rules of court and any practice direction, in a proceeding to which this Part applies, the evidence of a witness for whom a children’s champion has been appointed is to be given in the presence of the children’s champion.
(2)  The evidence is to be given in circumstances in which—
(a)  the Court and any Australian legal practitioner acting in the proceedings are able to see and hear the giving of the evidence and are able to communicate with the children’s champion, and
(b)  except in the case of evidence given under Part 6 of Chapter 6 or this Part by a recording, the jury are able to see and hear the giving of the evidence.
(3)  During any part of the proceedings to which this Part applies in which a children’s champion for a witness is present, the children’s champion is exempt from any requirement or direction under this Act that requires the proceedings or part of the proceedings to be heard in camera.
(4)  The provisions of the Evidence Act 1995 apply to and in respect of a person who acts as a children’s champion for a witness in the same way as they apply to and in respect of an interpreter under that Act.
Note.
 Section 22 of the Evidence Act 1995 requires an interpreter to take an oath, or make an affirmation, before acting as an interpreter.
(5)  The regulations may prescribe the form of oath or affirmation to be taken by the children’s champion for the purposes of subclause (4).
Division 4 General
91   Warnings
In any proceedings to which this Part applies, in which evidence of a witness is given by a pre-recording or a children’s champion is used, the Court must—
(a)  inform the jury that it is standard procedure to give evidence in that way or to use a children’s champion in such proceedings, and
(b)  warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because evidence was given in that way or a children’s champion used.
92   Relationship to other provisions of this Act
(1)  Except as provided by this Part, the regulations or rules of court, this Part does not affect the application of this Act to proceedings for offences to which this Part applies.
(2)  In particular, and without limiting subclause (1), the provisions of this Part are in addition to, and do not affect the following—
(a)  the entitlement of a witness to give, and the giving of, evidence under Parts 5 and 6 of Chapter 6,
(b)  the rights of the accused person under those Parts,
(c)  any powers of the Court under those Parts.
(3)  To avoid doubt, section 20 applies to an indictment presented at a pre-recorded evidence hearing.
93   Regulations and rules of court
(1)  The regulations may make provision for or with respect to the following—
(a)  the giving, taking, recording and access to evidence of witnesses under this Part,
(b)  children’s champions.
(2)  Rules of court may (subject to the regulations) be made for or with respect to any matter referred to in subclause (1).
94   Practice directions
The Chief Judge may give such directions as the Chief Judge considers appropriate in connection with the following—
(a)  the taking and giving of evidence of witnesses under this Part,
(b)  children’s champions.
95   Definitions
In this Part—
former provisions means clauses 6, 7 and 8 of Table 1 of Schedule 1 to this Act as in force before the commencement of Schedule 1 [2] to the amending Act.
96   Application of amendments
(1)  Each of the former provisions continues to apply in relation to proceedings for offences alleged to have been committed before the repeal of section 5 of the Crimes Act 1900.
Note.
 Section 5 of the Crimes Act 1900 defined the term maliciously for the purposes of that Act and was repealed by the Crimes Amendment Act 2007.
(2)  A reference in any of the former provisions to maliciously is taken to have always included a reference to intentionally or recklessly for offences alleged to have been committed on or after the repeal of section 5 of the Crimes Act 1900.
(3)  Clause 8A of Table 1 of Schedule 1 to this Act does not apply to proceedings for offences for which alleged offenders were charged before the commencement of that clause.
Part 31 Provision consequent on enactment of Justice Legislation Amendment Act 2018
97   Application of amendments
An amendment made to Schedule 1 to this Act by the Justice Legislation Amendment Act 2018 does not apply to proceedings for an offence that commenced before the commencement of that amendment.
Part 32 Provisions consequent on enactment of Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017
98   Definitions
In this Part—
existing proceedings means committal proceedings for an offence commenced before the substitution of the former committal provisions by the amending Act.
former committal provisions means Divisions 2–5 of Part 2 of Chapter 3 of this Act, as in force before their substitution by the amending Act.
99   Existing proceedings
The former committal provisions continue to apply to existing proceedings as if those provisions had not been substituted by the amending Act.
100   Previous offences
This Act, as amended by the amending Act, extends to proceedings for an offence committed before the substitution of the former committal provisions by the amending Act, if proceedings for the offence commence on or after the substitution of the former committal provisions.
Part 33 Provisions consequent on enactment of Justice Legislation Amendment Act (No 2) 2018
101   Definition
In this Part, amending Act means the Justice Legislation Amendment Act (No 2) 2018.
102   Compellability of family members
Section 279, as amended by the amending Act, does not apply in relation to proceedings the hearing of which began before the section was amended. Section 279, as in force before it was amended, continues to apply in relation to such proceedings.
103   Terrorism evidence
Part 2B of Chapter 6, as inserted by the amending Act, extends to a criminal investigation or criminal proceedings commenced but not finally determined before the commencement of that Part.
104   Sexual assault communications privilege
Section 298A, as inserted by the amending Act, extends to proceedings commenced but not finally determined before the commencement of that section.
Part 34 Provisions consequent on enactment of Criminal Procedure Amendment (Pre-trial Disclosure) Act 2018
105   Case management provisions
(1)  An amendment made by the amending Act applies only in respect of proceedings in which the indictment was presented or filed after the commencement of the relevant amendment.
(2)  Accordingly, a provision of Division 3 of Part 3 of Chapter 3, as in force before its amendment by the amending Act, continues to apply in respect of proceedings in which the indictment was presented or filed before the commencement of the relevant amendment.
(3)  In this clause—
Part 35 Provisions consequent on enactment of Justice Legislation Amendment Act (No 3) 2018
106   Definition
In this Part, amending Act means the Justice Legislation Amendment Act (No 3) 2018.
107   Back up summary offences
The amendments made to section 179 by the amending Act do not apply in respect of a back up summary offence if the conviction for the related indictable offence is set aside by the District Court on appeal before the commencement of the amendments.
108   Giving of evidence by vulnerable persons
(1)  Part 6 of Chapter 6, as amended by the amending Act, extends to an interview carried out, or a recording made, by an interstate investigating official before the commencement of the amendments to that Part made by that Act.
(2)  An interstate investigating official means a person who is an investigating official because of the amendments to section 306M made by the amending Act.
Part 36 Provisions consequent on enactment of Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
109   Indictment for indecent assault
Clause 14 of Schedule 3, as in force immediately before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence committed before that substitution.
Part 37 Provision consequent on enactment of Crimes Legislation Amendment (Victims) Act 2018
110   Application of amendments
An amendment made to this Act by the Crimes Legislation Amendment (Victims) Act 2018 applies only to proceedings commenced after the commencement of the amendment.
Part 38 Provisions consequent on enactment of COVID-19 Legislation Amendment (Emergency Measures) Act 2020
111   Use of pre-recorded evidence in particular circumstances
(1)  If, before the commencement of this clause, relevant evidence was given and recorded at a hearing in the absence of the jury (if any), the evidence is taken to have been given at a pre-recorded evidence hearing under Division 2 of Part 5 of Chapter 7.
(2)  Evidence given at a pre-recorded evidence hearing under Division 2 of Part 5 of Chapter 7 may be heard or viewed, in accordance with that Division, at a hearing that takes place after the Division is repealed as if it were still in force.
(3)  In this clause—
relevant evidence means evidence of a relevant witness in a trial proceeding that, if given after the commencement of this clause, would be evidence given at a pre-recorded evidence hearing under Division 2 of Part 5 of Chapter 7.
112   Use of original evidence in particular circumstances
(1)  The original evidence of a witness recorded in a proceeding before the commencement of this clause is, for the purposes of Division 3 of Part 5 of Chapter 7, to be treated in the same way as the original evidence of a witness recorded after the commencement.
(2)  The original evidence of a witness may be heard or viewed, in accordance with Division 3 of Part 5 of Chapter 7, at a hearing that takes place after the Division is repealed as if it were still in force.