Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (106 of 2009)
Schedule 1 Amendments
Part 1 Main amendments
Federal Court of Australia Act 1976
2 After Division 1 of Part III
Insert:
Division 1A - Original jurisdiction (indictable offences)
Subdivision A - Introduction
23AA Background and simplified outline
The following is background to, and a simplified outline of, this Division:
• This Division sets out procedures to be followed during criminal proceedings in the Court relating to certain indictable offences.
• This Division does not confer jurisdiction on the Court in relation to indictable offences. Other provisions need to have done this.
• This Division does not set out all of the procedures to be followed during these criminal proceedings. It is supplemented by procedures set out in the Rules of Court, and also by procedures set out in:
(a) State and Territory laws; and
(b) Rules of Court of State and Territory courts;
as applied by sections 68, 68B and 68C of the Judiciary Act 1903.
• The procedures set out in this Division include procedures about the following:
(a) preparing, amending and filing indictments;
(b) pre-trial hearings and disclosure;
(c) empanelling and discharging juries;
(d) pleas and verdicts;
(e) persons committed to the Court for sentencing.
23AB Application of Division
Events causing Division to apply, and meaning of key concepts
(1) This Division applies in relation to a person (the accused ) if any of the following events happen:
(a) either the accused, the prosecutor or both appear before the Court in accordance with an order committing the accused for trial on indictment, or sentencing, before the Court for an indictable offence;
(b) the prosecutor files in the Court an indictment against the accused for an indictable offence (whether or not the accused has been examined and committed for trial on indictment);
(c) the prosecutor applies to the Court for an extension of time in which to file in the Court an indictment of the kind covered by paragraph (b) against the accused;
(d) the accused applies to the Court in relation to the prosecutor’s failure to file an indictment against the accused in response to an order committing the accused for trial on indictment before the Court for an indictable offence;
(e) either the accused, the prosecutor or both appear before the Court in accordance with an order of a State or Territory court granting the accused bail in relation to an indictable offence.
Indictable primary proceedings
(2) This Division applies in relation to the following proceedings (the indictable primary proceedings ):
(a) proceedings in the Court that are commenced by, or that include, an event mentioned in subsection (1);
(b) proceedings in the Court for sentencing the accused if the Court, in proceedings covered by paragraph (a), has accepted a plea of guilty, or a verdict of guilty, for a count in the indictment in relation to the accused;
(c) proceedings in the Court that are ancillary to proceedings covered by paragraph (a) or (b).
Parties to the proceedings
(3) In indictable primary proceedings, the accused and the prosecutor are parties to the proceedings.
Note: More than one accused may be a party to the proceedings if they are prosecuted on a single indictment (see sections 23BB and 23BD).
Offences to which this Division applies
(4) A reference in this Division to an offence is a reference to any of the following:
(a) an offence against either of the following sections of the Trade Practices Act 1974:
(i) section 44ZZRF (making a contract etc. containing a cartel provision);
(ii) section 44ZZRG (giving effect to a cartel provision);
(b) if jurisdiction is conferred on the Court under subsection 32(4) in respect of a matter - an indictable offence to which the matter relates.
Note: Paragraph (b) covers any Commonwealth indictable offence associated with a particular prosecution of a cartel offence mentioned in paragraph (a).
Subdivision B - Matters relating to indictments
23BA Indictment may include alternate counts
The prosecutor may include alternate counts in an indictment.
23BB Single count can cover multiple accused
The prosecutor may, in an indictment, include a single count against more than one accused for the same indictable offence if the count is founded on alleged facts that are the same or substantially the same for each accused.
23BC Separating one or more accused from a single count
(1) The Court may order one or more accused included in a single count in an indictment to be tried separately:
(a) in the same proceedings on a different count in the same indictment; or
(b) in separate proceedings on one or more further indictments;
if the Court is satisfied that it is expedient to do so in the interests of justice.
(2) If the Court makes an order under subsection (1), the Court may make such other orders as it thinks appropriate in the circumstances.
(3) The Court may make an order under subsection (1) before trial or during the trial.
23BD Single indictment can include multiple counts
Single accused
(1) The prosecutor may, in a single indictment, include counts against the accused for more than one indictable offence if those counts:
(a) are founded on alleged facts that are the same or substantially the same; or
(b) are, or form part of, a series of alleged indictable offences:
(i) of the same or a similar character; or
(ii) committed in the pursuit of a single purpose.
Multiple accused
(2) The prosecutor may, in a single indictment, include counts against more than one accused for the same or different indictable offences if those counts:
(a) are founded on alleged facts that are the same or substantially the same; or
(b) are, or form part of, a series of alleged indictable offences:
(i) of the same or a similar character; or
(ii) committed in the pursuit of a single purpose.
23BE Separating one or more counts from a single indictment
(1) The Court may order one or more counts in an indictment to be tried separately:
(a) in separate proceedings; and
(b) on one or more further indictments;
if the Court is satisfied that it is expedient to do so in the interests of justice.
(2) If the Court makes an order under subsection (1), the Court may make such other orders as it thinks appropriate in the circumstances.
(3) The Court may make an order under subsection (1) before trial or during the trial.
23BF Time within which indictments must be filed following committal order
Scope
(1) This section applies if the accused is committed for trial before the Court for an indictable offence.
General rule - indictments must be filed within 3 months
(2) An indictment may only include a count that covers the offence if the indictment is filed in the Court as soon as practicable, and in any event within 3 months, after the committal order is made.
Extension - if accused/count separated from earlier indictment
(3) Subsection (2) does not prevent the inclusion of a count in an indictment if:
(a) the count contains the same offence, in relation to the accused, as an earlier count from which the accused was separated by an order under subsection 23BC(1); and
(b) the indictment is filed within 3 months after:
(i) if the Court accepts a plea of guilty, or a verdict of guilty, in relation to the earlier count and any of the other accused remaining covered by that count - the end of sentencing proceedings relating to that count; or
(ii) otherwise - the end of the trial of those other accused remaining covered by the earlier count.
(4) Subsection (2) does not prevent the inclusion of a count in an indictment if:
(a) the count is the same as another count relating to the accused that was separated from an earlier indictment by an order under subsection 23BE(1); and
(b) the first-mentioned indictment is filed within 3 months after:
(i) if the Court accepts a plea of guilty, or a verdict of guilty, in relation to any of the counts remaining in the earlier indictment - the end of sentencing proceedings relating to those counts; or
(ii) otherwise - the end of the trial relating to the counts remaining in the earlier indictment.
(5) The Court may order that subsection (3) or (4) does not apply in relation to an indictment, and may make such other orders about the time within which the indictment must be filed as the Court thinks appropriate in the circumstances.
Extension - by court order
(6) On application by the prosecutor, the Court may, by order, extend (or further extend) the time by which, under subsection (2), (3), (4) or (5), an indictment is required to be filed.
(7) The Court may exercise its power under subsection (6) only if the application for the extension (or further extension) is made before the end of the period to be extended (or further extended).
No effect on filing indictments in other courts
(8) This section does not prevent an indictment of the accused for the indictable offence being filed in another court that has jurisdiction in relation to the offence.
23BG Consequences of not filing indictment within time
(1) If the accused is committed for trial before the Court for an indictable offence and an indictment is not filed in the Court within the time required by section 23BF, the Court may:
(a) discharge the accused; and
(b) make such other orders as it thinks appropriate in the circumstances.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) The Court must not:
(a) proceed with the trial as if an indictment had been filed in the Court; or
(b) acquit the accused of the offence.
(4) Subsection (1) does not apply if an indictment of the accused for the indictable offence is filed in another court that has jurisdiction in relation to the offence.
23BH Amending indictments
Amendments before a trial
(1) The prosecutor may, in accordance with the Rules of Court, amend (or replace) an indictment in relation to an accused at any time during the proceedings before the start of a trial of the accused on the indictment.
Note: A trial starts when the accused is arraigned before a jury (see subsection 23FA(2)).
Amendments during a trial
(2) During a trial of the accused on an indictment, the prosecutor may amend (or replace) the indictment in relation to the accused only with the leave of the Court.
Consequences of amending indictments
(3) If the prosecutor replaces an indictment under subsection (1) or (2), the Court must dismiss the replaced indictment.
(4) If an indictment is amended or replaced, the Court may make such orders as it thinks appropriate in the circumstances.
Note: If, for example, an indictment was amended to remove a count against the accused, the Court could discharge the accused in relation to that count.
(5) This section does not affect the amendment of an indictment under other provisions of this Division.
Subdivision C - Pre-trial matters (hearings, disclosure and quashing indictments)
23CA Pre-trial hearings
(1) As soon as practicable after an indictment is filed in the Court, the Court must:
(a) order the prosecutor and the accused to attend a pre-trial hearing before the Court; and
(b) at the hearing, direct the accused to enter a plea to each count in the indictment that relates to the accused.
(2) Before a trial on the indictment starts, the Court may order the prosecutor and the accused to attend one or more further pre-trial hearings before the Court.
Note: The Court may also order pre-trial disclosure (see subsection 23CD(1)).
23CB Court may make orders during pre-trial hearings
(1) During a pre-trial hearing, the Court may make orders and determinations for the efficient management and disposal of a trial on the indictment.
(2) Without limiting subsection (1), the Court may do any or all of the following under that subsection:
(a) make orders, or give leave, under Subdivision B (matters relating to indictments);
(b) hear and determine an objection to the indictment;
(c) make an order under subsection 23CD(1) (pre-trial disclosure);
(d) determine the admissibility of evidence;
(e) hear and determine a submission that the matter should not proceed to trial for a reason not mentioned in a preceding paragraph of this subsection;
(f) rule on a matter of law that may arise during a trial on the indictment.
Note 1: The Court could, for example, rule whether business records are admissible.
Note 2: For the purposes of paragraph (2)(b), the bases on which the accused may object to an indictment are set out in subsection 23CP(1).
(3) If a trial on the indictment starts, an order or determination under subsection (1) applies for the trial unless the Court is satisfied that to follow the order or determination would be contrary to the interests of justice.
23CC Matters that must be raised during pre-trial hearings
If a matter covered by paragraph 23CB(2)(b) or (e) was not raised during the pre-trial hearings for an indictment, the matter cannot be raised during the trial unless the Court is satisfied that to not do so would be contrary to the interests of justice.
23CD Pre-trial and ongoing disclosure
(1) After the indictment is filed in the Court and before a trial on the indictment starts, the Court may order:
(a) the prosecutor to give the accused notice of the case for the prosecution in accordance with section 23CE; and
(b) the accused, after having been given notice of the case for the prosecution, to give the prosecutor notice of the accused’s response in accordance with section 23CF; and
(c) the prosecutor, after having been given notice of the accused’s response, to give the accused notice of the prosecution’s response to the accused’s response in accordance with section 23CG; and
(d) the prosecutor and the accused to make ongoing disclosures in accordance with section 23CH until, for each count in the indictment relating to the accused, the accused is either:
(i) convicted of the offence covered by the count; or
(ii) discharged in relation to the count.
The order may specify the time within which each disclosure is to be made.
(2) The accused must give the following to the prosecutor as soon as practicable after the accused’s first pre-trial hearing before the Court in relation to the indictment:
(a) if at the trial the accused proposes to adduce supporting evidence of an alibi - notice of particulars, prepared in accordance with the Rules of Court, of that alibi;
(b) if at the trial the accused proposes to adduce supporting evidence that the accused was suffering from a mental impairment (within the meaning of section 7.3 of the Criminal Code) - notice of particulars, prepared in accordance with the Rules of Court, of that impairment.
Note: A party may also be required to disclose additional information as a result of other laws (for example, subsection 44ZZRO(2) of the Trade Practices Act 1974).
23CE Disclosure of case for the prosecution
The notice of the prosecution’s case must include the following:
(a) an outline of the prosecution’s case that sets out the facts, matters and circumstances on which the prosecution’s case is based;
(b) for each witness the prosecutor proposes to call at the trial:
(i) a copy of a signed statement by the witness that sets out the evidence the witness is to give at the trial; or
(ii) a written summary of the evidence the witness is to give at the trial;
(c) for each witness:
(i) the prosecutor does not propose to call at the trial; but
(ii) who has signed a statement that sets out the evidence the witness could give at the trial;
a copy of the signed statement;
(d) copies of any documents the prosecutor proposes to tender at the trial;
(e) copies of, or an invitation to inspect, any other exhibits the prosecutor proposes to tender at the trial;
(f) a copy of any report, relevant to the trial, that has been prepared by an expert witness whom the prosecutor proposes to call at the trial;
(g) a copy or details of any information in the prosecutor’s possession that might adversely affect the reliability or credibility of a prosecution witness;
(h) a copy or details of any information, document or other thing in the prosecutor’s possession that the prosecutor reasonably believes contains evidence that may be relevant to the accused’s case;
(i) if the prosecutor reasonably believes information in the prosecutor’s possession suggests the existence of evidence that may be relevant to the accused’s case - a copy or details of so much of that information as is necessary to suggest that existence;
(j) a list identifying:
(i) any information, document or other thing not in the prosecutor’s possession that the prosecutor reasonably believes contains evidence that may be relevant to the accused’s case; and
(ii) for each item of information, and each document or other thing, a place where the prosecutor reasonably believes the item, document or thing to be;
(k) a copy or details of any information, document or other thing in the prosecutor’s possession that is adverse to the accused’s credit or credibility;
and may include other matters.
Note: Information and things do not need to be disclosed more than once (see section 23CK).
23CF Accused’s response
(1) The notice of the accused’s response to the notice of the prosecution’s case must include the following:
(a) a statement setting out, for each fact set out in the notice of the prosecution’s case:
(i) that the accused agrees that the fact is to be an agreed fact for the purposes of section 191 of the Evidence Act 1995 at the trial; or
(ii) that the accused takes issue with the fact;
and, if the accused takes issue with the fact, the general basis for taking issue;
(b) a statement setting out, for each matter and circumstance set out in the notice of the prosecution’s case:
(i) whether the accused takes issue with the matter or circumstance; and
(ii) if the accused does take issue - the general basis for taking issue;
(c) notice as to whether any statement by a person given under subparagraph 23CE(b)(i) can be tendered at the trial without the person being called as a witness at the trial;
(d) notice as to whether the accused requires the prosecutor to call witnesses to corroborate any specified surveillance evidence that was notified to the accused by the prosecutor under section 23CE;
(e) notice as to whether the accused requires the prosecutor to prove:
(i) the continuity of handling of any specified exhibits; or
(ii) the accuracy of any specified exhibits that are transcripts, summaries or charts;
that were notified to the accused by the prosecutor under section 23CE;
(f) in relation to each report given under paragraph 23CE(f), notice as to:
(i) whether the accused accepts or contests the opinions expressed in the report; and
(ii) whether the report can be tendered at trial without the expert being called as a witness at the trial;
(g) any consent that the accused gives under section 190 of the Evidence Act 1995 in relation to:
(i) any evidence notified under section 23CE as evidence proposed to be adduced by the prosecutor; or
(ii) any other evidence relating to the trial;
(h) any consent that the accused gives under section 184 of the Evidence Act 1995 in relation to the trial;
(k) a copy of any report, relevant to the trial, that has been prepared by an expert witness whom the accused proposes to call at the trial;
and may include other matters.
(2) Paragraph (1)(a) and subparagraph (1)(b)(ii) do not require the accused to disclose details of the accused’s proposed defence.
23CG Prosecutor’s response to accused’s response
The notice of the prosecution’s response to matters contained in the accused’s response must include the following:
(a) notice as to whether the prosecutor requires the accused to prove:
(i) the continuity of handling of any specified exhibits; or
(ii) the accuracy of any specified exhibits that are transcripts, summaries or charts;
that were notified to the prosecutor by the accused under section 23CF;
(b) in relation to each report given under paragraph 23CF(1)(k), notice as to:
(i) whether the prosecutor accepts or contests the opinions expressed in the report; and
(ii) whether the report can be tendered at trial without the expert being called as a witness at the trial;
(c) any consent that the prosecutor gives under section 190 of the Evidence Act 1995 in relation to:
(i) any evidence notified under section 23CF as evidence proposed to be adduced by the accused; or
(ii) any other evidence relating to the trial;
(d) notice of any fact that the prosecutor agrees to as an agreed fact for the purposes of section 191 of the Evidence Act 1995 at the trial;
(e) a copy or details of any additional information, document or other thing in the prosecutor’s possession that the prosecutor reasonably believes contains evidence that may be relevant to the accused’s case;
(f) if the prosecutor reasonably believes additional information in the prosecutor’s possession suggests the existence of evidence that may be relevant to the accused’s case - a copy or details of so much of that information as is necessary to suggest that existence;
(g) a list identifying:
(i) any additional information, document or other thing not in the prosecutor’s possession that the prosecutor reasonably believes contains evidence that may be relevant to the accused’s case; and
(ii) for each item of information, and each document or other thing, a place where the prosecutor reasonably believes the item, document or thing to be;
and may include other matters.
Note: Information and things do not need to be disclosed more than once (see section 23CK).
23CH Ongoing disclosure obligations
(1) If the Court makes an order under subsection 23CD(1) requiring ongoing disclosure in accordance with this section:
(a) the accused’s ongoing disclosure obligations are set out in subsection (2); and
(b) the prosecutor’s ongoing disclosure obligations are set out in subsections (4) and (5).
Accused’s ongoing disclosure obligations
(2) If, contrary (or in addition) to the accused’s response under section 23CF, the accused later:
(a) no longer takes issue with, or no longer contests, something set out in the notice of the prosecution’s case; or
(b) takes issue with something set out in the notice of the prosecution’s case on an alternate or additional basis to the basis set out in the accused’s response; or
(c) no longer requires the prosecution to do something, or to ensure that something is done; or
(d) agrees or accepts, or consents to, something set out in the notice of the prosecution’s case; or
(e) obtains a report, relevant to the trial, that has been prepared by an expert witness whom the accused proposes to call at the trial;
the accused must notify this to the prosecutor. When giving notice of a report by an expert witness, the accused must include a copy of the report.
Note: The order may specify the time within which the accused must notify this to the prosecutor (see section 23CD).
Prosecution’s ongoing disclosure obligations
(4) If, contrary (or in addition) to the prosecution’s response under section 23CG, the prosecutor later:
(a) no longer contests something set out in the accused’s response; or
(b) no longer requires the accused to do something, or to ensure that something is done; or
(c) agrees or accepts, or consents to, something set out in the accused’s response; or
(d) obtains a report, relevant to the trial, that has been prepared by an expert witness whom the prosecution proposes to call at the trial;
the prosecutor must notify this to the accused as soon as practicable. When giving notice of a report by an expert witness, the prosecutor must include a copy of the report.
Note: The order may specify the time within which the prosecutor must notify this to the accused (see section 23CD).
(5) After giving the prosecution’s response under section 23CG, the prosecutor must give the accused:
(a) a copy or details of any additional information, document or other thing in the prosecutor’s possession that the prosecutor reasonably believes contains evidence that may be relevant to the accused’s case; and
(b) if the prosecutor reasonably believes information in the prosecutor’s possession suggests the existence of evidence that may be relevant to the accused’s case - a copy or details of so much of that information as is necessary to suggest that existence; and
(c) if the prosecutor reasonably believes any information, document or other thing not in the prosecutor’s possession contains evidence that may be relevant to the accused’s case - a statement to that effect identifying:
(i) the information, document or thing; and
(ii) a place where the prosecutor reasonably believes the information, document or thing to be.
Note 1: Information and things do not need to be disclosed more than once (see section 23CK).
Note 2: The order may specify the time within which the prosecutor must give these things to the accused (see section 23CD).
23CI Copies of things need not be provided if impracticable etc.
(1) Nothing in this Subdivision requires a copy or details of any information, document or other thing to be given if it is unlawful, impossible or impracticable to provide the copy or details.
(2) However, the party to the proceedings required (but for subsection (1)) to give the copy or details must:
(a) notify the other party of a reasonable time and place at which the information, document or other thing may be inspected; and
(b) allow the other party a reasonable opportunity to inspect the information, document or other thing.
23CJ Personal details need not be provided
(1) Nothing in this Subdivision requires the prosecutor to disclose the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless:
(a) the address or telephone number is a materially relevant part of the evidence; or
(b) on application by the accused - the Court makes an order directing the disclosure.
Note: The Court may make orders to protect witnesses, information, documents and other things (see section 23HC).
(2) The Court must not make an order under paragraph (1)(b) directing the disclosure of information unless it is satisfied that:
(a) the accused needs the information to prepare properly for the hearing of the evidence for the prosecution; and
(b) if the disclosure is likely to present a risk to a person’s safety or welfare - the accused’s need for the information outweighs this risk.
(3) This section does not prevent the disclosure of an address if:
(a) the disclosure does not identify it as a particular person’s address; and
(b) it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.
(4) If:
(a) a statement is to be given to the accused; and
(b) the statement contains an address or telephone number that must not be disclosed;
the address or telephone number may, without reference to the person who made the statement, be deleted from the statement, or rendered illegible, before the statement is given to the accused.
23CK Things need not be disclosed to a party more than once
A party to indictable primary proceedings (the current proceedings ) need not disclose anything under this Subdivision to another party if the first-mentioned party has already disclosed it to the other party:
(a) during the current proceedings; or
(b) during committal or other proceedings relating to an offence founded on alleged facts that are the same or substantially the same as those for an offence being prosecuted in the current proceedings.
23CL Effect on legal professional privilege and other privileges and duties etc.
Litigation privilege not an excuse for failing to comply with pre-trial disclosure requirements
(1) A party is not excused from disclosing material under this Subdivision on the basis of litigation privilege claimed by the party in relation to the material.
Note: The party can still be excused from disclosing material on the basis of advice privilege (that is, privilege that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 118 of the Evidence Act 1995).
(2) This Subdivision does not otherwise:
(a) abrogate or affect the law relating to legal professional privilege; or
(b) amount to a waiver of legal professional privilege.
Note: This means, for example, that legal professional privilege will apply for the trial.
Other privileges and duties unaffected
(3) This Subdivision does not abrogate or affect:
(a) the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004; or
(b) the law relating to public interest immunity.
(4) This Subdivision does not abrogate or affect the law relating to any duty of a person investigating the accused to ensure that information and other things are disclosed to the prosecutor or the accused.
Definitions
(5) In this section:
legal professional privilege includes privilege (however described) under Division 1 of Part 3.10 of the Evidence Act 1995, or a similar law of a State or Territory.
litigation privilege means privilege (however described) that would, if the material were evidence to be adduced in the Court, protect against a disclosure covered by section 119 of the Evidence Act 1995.
23CM Consequences of disclosure requirements
Orders to ensure non-compliance does not unfairly affect the other party
(1) The Court may make such orders as it thinks appropriate to ensure that:
(a) any failure by the prosecutor to comply with an order under subsection 23CD(1) does not cause unfairness to the accused; and
(b) any failure by the accused to comply with an order under subsection 23CD(1) does not prejudice the prosecutor’s ability to efficiently conduct the prosecution.
(2) However, the Court must not make an order under subsection (1) if it would result in an unfair trial.
Certain evidence cannot be adduced at trial unless there is earlier disclosure
(3) If the accused fails to comply with subsection 23CD(2) in relation to an alibi, the accused may only adduce evidence of the alibi with the leave of the Court.
(4) If the accused fails to comply with subsection 23CD(2) in relation to a mental impairment (within the meaning of section 7.3 of the Criminal Code), the accused may only adduce evidence that the accused was suffering from the impairment with the leave of the Court.
23CN Restricting further disclosure of disclosed material
(1) This section restricts what a person (the entrusted person ) may do with any information, document or other thing (the protected material ) the person obtains as the result of a disclosure under this Subdivision.
(2) The entrusted person commits an offence if the person discloses any protected material to another person.
Penalty: Imprisonment for 2 years.
(3) Each of the following is an exception to the prohibition in subsection (2):
(a) the disclosure is for the purposes of the proceedings for which the entrusted person obtained the protected material;
(b) the Court has given leave for the disclosure;
(c) the disclosure happens for the purposes of, or in connection with, the performance of the duties of the entrusted person’s official employment;
(d) the disclosure is of protected material that has already been lawfully disclosed in proceedings in open court.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) The entrusted person is not to be required:
(a) to produce to a court or tribunal any document that is or contains protected material; or
(b) to disclose protected material to a court or tribunal.
(5) In this section:
disclose means divulge or communicate.
official employment means:
(a) service as:
(i) the Director of Public Prosecutions; or
(ii) a member of the staff of the Office of the Director of Public Prosecutions; or
(iii) a Special Prosecutor under the Special Prosecutors Act 1982; or
(iv) the Attorney-General; or
(v) a person appointed by the Governor-General in relation to the prosecution for which the entrusted person obtained the protected material; or
(b) representing, or otherwise performing services for, a person referred to in paragraph (a); or
(c) exercising the powers, or performing the functions, of the Director of Public Prosecutions.
23CO Restricting admissibility of disclosed material as evidence in other proceedings
(1) The Court may order that any or all of the material disclosed under this Subdivision is not admissible:
(a) in any other proceedings before the Court; or
(b) in any other court (whether exercising federal jurisdiction or not); or
(c) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.
(2) An order made under subsection (1) ceases to have effect if, during the indictable primary proceedings, the material is lawfully disclosed in open court.
(3) The Court may, on the application of an interested person (whether during the indictable primary proceedings or otherwise), order that an order made under subsection (1) be:
(a) set aside; or
(b) varied;
if the Court is satisfied it is in the interests of justice to do so.
(4) The Court may, before making an order under subsection (3), direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.
23CP Objecting to indictments
(1) The accused may object to a count in the indictment on the basis of:
(a) a formal defect apparent on the face of the indictment; or
(b) the Court lacking jurisdiction; or
(c) autrefois acquit or autrefois convict; or
(d) a pardon.
Note: The objection must be raised during a pre-trial hearing unless the Court allows otherwise (see section 23CC).
(2) If the Court upholds the objection, the Court may:
(a) in every case:
(i) make an order quashing the count in relation to the accused; and
(ii) if after quashing the count, no counts remain in the indictment in relation to the accused or any other accused - make an order quashing the indictment; and
(iii) discharge the accused in relation to the count; and
(iv) make such other orders as it thinks appropriate in the circumstances; or
(b) if the objection is covered by paragraph (1)(a) - make an order for the amendment of the indictment to remove the defect instead of quashing the count.
23CQ Examining witnesses after committal in absence of the jury
(1) After the indictment is filed in the Court, the Court may direct a person to appear for examination before the Court or a Judge, the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court if:
(a) a party applies for the direction; and
(b) the prosecutor has disclosed that the prosecutor proposes to call the person as a witness at a trial on the indictment; and
(c) if the indictment was filed in the Court as a result of proceedings in which the accused was committed for trial - the person was not examined in those proceedings; and
(d) the applicant satisfies the Court that it would be contrary to the interests of justice to proceed to trial without the person being examined.
Note: A person examined under this section will be examined in the absence of a jury.
(2) The Court may make such orders as it thinks appropriate in the circumstances to give effect to a direction under subsection (1).
(3) A direction under subsection (1) may permit either or both of the parties to examine the person named in the direction.
(4) For the purposes of paragraph (1)(d), the absence of committal proceedings does not, of itself, mean it will be contrary to the interests of justice to proceed to trial without the person being examined.
Subdivision D - Pre-trial matters (empanelling the jury)
23DA Simplified outline
The following is a simplified outline of this Subdivision:
• There are rules about the number of jurors on a jury.
• Before convening jury panels for trials in a State or Territory, the Sheriff needs to determine one or more jury districts for the State or Territory. A jury roll for each jury district can then be obtained.
• Not everyone on a jury roll is qualified to serve as a juror.
• For each trial, the Sheriff convenes a jury panel by:
(a) selecting the jury district and preparing a jury list from the corresponding jury roll; and
(b) randomly selecting some of the persons on the jury list and summonsing them to attend court for jury service.
• The jury is then selected from those persons on the jury panel.
• A person on the jury panel will not become a juror if they are excused from jury service, or if their inclusion on the jury is successfully challenged. A potential juror may also be asked to temporarily stand aside during the selection of the jury.
23DB Application to criminal proceedings
This Subdivision applies in relation to juries for indictable primary proceedings.
23DC Number of jurors on jury
(1) The number of jurors on a jury is:
(a) 12; or
(b) such larger number (not exceeding 15) as the Court orders.
(2) An order under paragraph (1)(b) must be made before the jury is empanelled for the proceedings.
23DD Continuation of the trial with a reduced jury
(1) Subject to subsection (3), if a juror is discharged during a trial, the Court may direct that the trial continue with the remaining jurors.
Note: For when a juror is discharged, see Subdivision E.
(2) If the Court gives a direction under subsection (1) after the jury has retired to consider its verdict on a count in the indictment, the verdict of the remaining jurors has the same effect as if it were the verdict of all the persons who were jurors when the jury retired to consider its verdict.
Note: There must not be more than 12 jurors when the jury retires to consider its verdict (see section 23DE).
(3) A trial must not continue with fewer than 10 jurors.
23DE Ballot to reduce additional jurors
If, before the jury is asked to retire to consider its verdict on a count in the indictment, there are more than 12 jurors, a ballot must be conducted to select at random 11 of the jurors who, together with the jury foreperson, will consider the verdict.
Note 1: This means the jury foreperson is excluded from the ballot. For the appointment of the jury foreperson, see section 23EA).
Note 2: The jurors not selected in the ballot are discharged at the end of the conduct of the ballot (see section 23EJ).
23DF Jury districts (establishment and boundaries)
(1) The Sheriff may, in writing, determine that the electoral Divisions specified in the determination constitute a jury district for a particular State or Territory.
(2) There may be more than one jury district for a State or Territory.
(3) A determination made under subsection (1) is not a legislative instrument.
23DG Jury roll for a jury district
(1) The Sheriff may prepare a written jury roll for a jury district.
(2) A jury roll prepared under subsection (1) is not a legislative instrument.
23DH Qualification and liability for serving on jury
Qualification for serving on jury
(1) A person is qualified to serve as a juror if:
(a) the person’s name is on the jury roll for the applicable jury district; and
(b) the person is entitled to vote at elections of Members of the House of Representatives in accordance with subsection 93(2) of the Commonwealth Electoral Act 1918.
This subsection has effect subject to sections 23DI and 23DJ.
Note 1: A person on the jury roll who is entitled to vote may not be qualified to serve as a juror, see sections 23DI and 23DJ.
Note 2: For applicable jury district , see section 23DL.
Liability to serve on jury
(2) A person who is qualified under subsection (1) to serve as a juror is liable to serve as a juror in particular proceedings unless the person:
(a) is excused from that service for those proceedings under section 23DQ, 23DR or 23DV; or
(b) is discharged as a juror or potential juror for those proceedings under Subdivision E.
Lack of qualification does not affect validity of verdict
(3) Anything done by a jury is not invalid merely because a juror on the jury was not qualified to serve as a juror.
23DI Disqualification from serving on jury (convictions, charges, detention orders etc.)
When a person is not qualified
(1) A person is not qualified to serve as a juror if:
(a) the person has been:
(i) convicted of an offence against a law of the Commonwealth, a State or a Territory; and
(ii) sentenced to imprisonment for life, or to serve a term of imprisonment of more than 12 months, as a result of the conviction; or
(b) the person has been:
(i) convicted of an offence against a law of a foreign country; and
(ii) sentenced to death, imprisonment for life, or to serve a term of imprisonment of more than 12 months, as a result of the conviction; or
(c) the person has been:
(i) tried for an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(ii) ordered to be detained for life, or for a period of more than 12 months, in a hospital, juvenile facility or other detention facility as a result of the trial; or
(d) the person has, within the last 10 years, been:
(i) convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(ii) sentenced to serve a term of imprisonment (including by way of periodic detention) as a result of the conviction; or
(e) the person has, within the last 10 years, been:
(i) tried for an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(ii) ordered to be detained in a hospital, juvenile facility or other detention facility as a result of the trial; or
(f) the person is currently:
(i) serving a term of imprisonment (including by way of periodic detention); or
(ii) being detained in a hospital, juvenile facility or other detention facility; or
(iii) subject to an order for periodic home detention or periodic detention in a hospital, juvenile facility or other detention facility; or
(g) the person is currently subject to:
(i) a good behaviour bond or community service order; or
(ii) a similar order; or
(h) the person is currently being held in custody for the commission, or suspected commission, of a criminal offence; or
(i) the person:
(i) has been charged with an offence against a law of the Commonwealth, a State, a Territory or a foreign country; and
(ii) is currently at liberty in respect of the offence until the person is required to appear before a court in respect of the offence.
Note: For paragraph (i), the person will be at liberty in respect of the offence if bail is granted for the offence.
Extended meaning of serving a term of imprisonment
(2) For the purposes of subsection (1), serving a term of imprisonment includes:
(a) the case where:
(i) a person has been sentenced to a term of imprisonment; and
(ii) the sentence has been suspended; and
(iii) the period of suspension has not ended; and
(b) the case where:
(i) a person has been sentenced to a term of imprisonment; and
(ii) the person has started serving the sentence; and
(iii) the person has been released on parole or probation or on a similar basis; and
(iv) that period of release has not ended.
Disregard convictions etc. that have been set aside
(3) For the purposes of this section, disregard a conviction, sentence or order if the conviction, sentence or order has been set aside on appeal or as a result of a pardon.
23DJ Disqualification from serving on jury (professional ineligibility)
(1) A person is not qualified to serve as a juror if the person is:
(a) the Governor or Administrator of a State or Territory; or
(b) a judge, or other judicial officer, of a court of a State or Territory; or
(c) a member of the Parliament or Legislative Assembly of a State or Territory; or
(d) a qualified legal practitioner who holds a legal practising certificate in a State or Territory; or
(e) a person whose duties or activities involve or are connected with:
(i) the investigation or prosecution of criminal offences; or
(ii) the administration of justice; or
(iii) the punishment of offenders; or
(f) a person who:
(i) is excluded by a State or Territory law from serving as a juror in a court of that State or Territory; and
(ii) is so excluded because the person’s current duties or activities involve or are connected with public administration or emergency services.
(2) Subsection (1) has effect in addition to:
(a) section 147 of the Navigation Act 1912 and any other law that exempts other categories of persons from serving as jurors; or
(b) the Jury Exemption Act 1965 and any other law that provides that other categories of persons are not liable to serve as jurors.
For the purposes of this Division, a person exempt from serving, or not liable to serve, as a juror under a law referred to in paragraph (a) or (b) is taken to be not qualified to serve as a juror.
(3) Subsection (1) applies whether the position the person holds is paid or not.
23DK When Sheriff is to convene a jury panel
(1) The Court may give the Sheriff a written direction to convene a jury panel for indictable primary proceedings.
(2) The direction must specify the place (the sitting place ) in the State or Territory where the jury is to sit.
(3) The Sheriff must comply with the direction.
23DL Sheriff to select the jury district for the proceedings
(1) The Sheriff must, in writing, determine which jury district is to apply to the proceedings. This jury district (the applicable jury district ) must be:
(a) the jury district (if any) that includes the sitting place; or
(b) another jury district, in the same State or Territory as the sitting place, that is near the sitting place.
(2) A determination made under subsection (1) is not a legislative instrument.
23DM Sheriff to prepare the jury list for the proceedings
(1) The Sheriff must prepare a jury list for the proceedings.
(2) The jury list consists of:
(a) the names and addresses; and
(b) if readily available to the Sheriff - the dates of birth and sex;
of persons that the Sheriff selects from the jury roll for the applicable jury district.
Note 1: The jury list may be supplemented under subsection (5).
Note 2: The Sheriff may remove a person’s name from the jury list under section 23DO.
(3) The persons to be included in the jury list are to be selected at random from the jury roll.
(4) The number of persons to be selected is the number the Sheriff thinks is adequate to allow a jury to be empanelled.
(5) If:
(a) a jury list has been prepared under subsection (1); and
(b) the jury list no longer contains the number of persons the Sheriff thinks is adequate to allow a jury to be empanelled;
the Sheriff may supplement the list by selecting additional persons, who have not already been summonsed under section 23DP for the jury, at random from the jury roll for the applicable jury district.
Note: The situation described in paragraph (b) may arise because of a larger than expected number of persons being removed from the list under section 23DO.
(6) A jury list is not a legislative instrument.
23DN Investigation and questionnaires
(1) The Sheriff may make such enquiries as he or she thinks necessary to determine whether a person included on the jury list:
(a) is not qualified to serve as a juror; or
(b) should be excused from serving as a juror.
(2) Without limiting subsection (1), the Sheriff may send a questionnaire to some or all of the persons included in the jury list.
(3) A person who receives a questionnaire under subsection (2) must complete the questionnaire in the manner specified and return it to the Sheriff within 14 days.
Note: It is an offence if the person fails to return, or properly complete, the questionnaire (see section 58AE).
(4) A failure by a person to comply with subsection (3) does not affect the retention of the person’s name on the jury list.
(5) After preparing the jury list, the Sheriff may:
(a) give the Commissioner of the Australian Federal Police the name and other details of any or all of the persons included in the jury list; and
(b) request the Commissioner to give information about the criminal history (if any) of each of those persons.
The Commissioner must give the information to the Sheriff.
(6) The Sheriff may give the Court any information that the Commissioner gives the Sheriff under this section.
Note: If the information indicates that the person is not qualified, the Sheriff has power to remove the person’s name from the jury list under section 23DO and there is no need to pass the information on to the Court.
(7) The Sheriff must not disclose information given to the Sheriff by the Commissioner under this section except:
(a) to the Court under subsection (6); or
(b) otherwise for the purposes of this Act.
23DO Removing names from jury list
The Sheriff must remove a person’s name from the jury list if the Sheriff is satisfied that:
(a) the person is not qualified to be a juror; or
(b) the Sheriff would excuse the person from serving on the jury:
(i) under section 23DQ if the person were a potential juror who had applied under that section to be excused; or
(ii) under section 23DR if the person were a potential juror.
23DP Jury summonses
(1) The Sheriff must issue summonses to a sufficient number of persons on the jury list to allow the empanelment of the jury.
Note: It is an offence if a person issued with a summons fails to attend for jury service in accordance with the summons, and the person has not been excused (see section 58AA).
(2) The persons to be summonsed are to be selected at random from the jury list.
(3) A summons to a person must be in the form, and be served, as provided for in the Rules of Court.
(4) The Sheriff may withdraw a summons issued under this section.
23DQ Sheriff’s power to excuse - on application
(1) A potential juror (or an interested person on the potential juror’s behalf) may apply to the Sheriff, at any time before the potential juror is seated in the jury box under section 23DU, for the potential juror to be excused from serving on the jury.
(2) The Sheriff may excuse the potential juror if the Sheriff is satisfied that there is good cause to excuse the potential juror because of:
(a) the potential juror’s health; or
(b) undue hardship, financial or otherwise, to the potential juror, or to another person, if the potential juror is not excused; or
(c) the potential juror’s recent service on a jury in any jurisdiction in Australia; or
(d) substantial inconvenience to the public resulting from the potential juror’s serving on the jury; or
(e) the potential juror’s inability, in all the circumstances, to perform the duties of a juror to a reasonable standard.
Note: For paragraph (e), the Sheriff must have regard to the Disability Discrimination Act 1992.
23DR Sheriff’s power to excuse - on own initiative
(1) At any time before a potential juror is seated in the jury box under section 23DU, the Sheriff may excuse the potential juror from serving on the jury if the Sheriff is satisfied that the potential juror:
(a) is, in all the circumstances, unable to perform the duties of a juror to a reasonable standard; or
(b) is otherwise not required for jury service.
Note: The Sheriff must have regard to the Disability Discrimination Act 1992.
(2) If the Sheriff becomes aware that a potential juror is not qualified to serve as a juror, the Sheriff must excuse the potential juror from serving on the jury.
23DS Preparing the jury panel
(1) The Sheriff must prepare a jury panel by listing the names, addresses and dates of birth of:
(a) each potential juror who has attended in accordance with a jury summons; or
(b) an adequate number of potential jurors, selected at random, from those who have attended in accordance with a jury summons.
(2) Only potential jurors who:
(a) are qualified to serve as jurors; and
(b) are not excused from serving on the jury;
are to be included on the jury panel.
(3) The Sheriff must assign a number to each potential juror who is included on the jury panel, indicating the number next to the person’s name on the list prepared.
(4) A potential juror, who is not excused by the Sheriff, remains liable to be included on the jury panel until the potential juror is discharged.
Note: A potential juror will be discharged if excused or successfully challenged (see section 23EI).
23DT Preparing to empanel the jury
(1) At the beginning of the trial, the Sheriff must:
(a) give the Court the list of potential jurors on the jury panel prepared under subsection 23DS(1); and
(b) facilitate the attendance in court of those potential jurors.
(2) Before the selection of persons to be empanelled as the jury for the trial, the Court must inform the parties to the trial that:
(a) the potential jurors whose names and/or numbers are to be called may become jurors for the trial; and
(b) if the party wishes to challenge any of them, the party must make the challenge before the potential juror sits in the jury box.
(3) Before the selection of persons to be empanelled as the jury for a trial, the Court must:
(a) inform the potential jurors on the jury panel of the nature of the trial in question, including the offences for which the accused is being tried; and
(b) inform the potential jurors on the jury panel of the identities of:
(i) the parties; and
(ii) to the extent known to the Court, the principal witnesses to be called during the trial; and
(c) call on the potential jurors on the jury panel to apply to be excused if they consider that:
(i) they are not able to give impartial consideration to the case; or
(ii) they should be excused for any other reason.
23DU Empanelling the jury
(1) The Court must ensure that an officer of the Court calls:
(a) the name; or
(b) if a direction under section 23EB has modified the procedure - the number;
of a potential juror selected at random from the jury panel.
(2) If:
(a) 2 or more potential jurors have the same name; and
(b) their name is required to be called under subsection (1);
the officer of the Court must call their name and number.
(3) If a potential juror’s name and/or number is called, the potential juror must sit in the jury box unless, before the potential juror can do so, the potential juror is:
(a) excused under this Subdivision from serving on the jury; or
(b) stood aside under section 23DZA; or
(c) discharged under subsection 23EI(2).
Note: A potential juror is discharged under subsection 23EI(2) if the potential juror’s inclusion on the jury is successfully challenged (see sections 23DX to 23DZ).
(4) The officer of the Court must continue to call the names and/or numbers of potential jurors, as provided under subsection (1), until the required number of jurors under section 23DC are seated in the jury box.
(5) When the required number of jurors under section 23DC are seated in the jury box, those potential jurors must be sworn or make an affirmation.
(6) When every potential juror seated in the jury box has been sworn, or has made an affirmation, those potential jurors are taken to have been empanelled as the jury for the trial.
23DV Court’s power to excuse a person from serving on jury
(1) Before a potential juror sits in the jury box, the Court may:
(a) if the potential juror requests (including by giving a note to the Judge); or
(b) of the Court’s own motion;
excuse the potential juror from serving on the jury if the Court is satisfied that it is appropriate to do so in the circumstances.
(2) If:
(a) a jury has been empanelled under section 23DU; and
(b) either:
(i) the jury is not discharged under subsection 23EL(1); or
(ii) if the jury is so discharged, the Court does not give a direction under subsection 23EM(3);
all the potential jurors who were not empanelled for the trial are taken to be excused by the Court from serving on the jury.
23DW Supplementary jurors
(1) If there is an insufficient number of potential jurors available on the jury panel for empanelment of the jury under section 23DU, the Court may direct the Sheriff to supplement the jury panel by:
(a) if the original panel did not include each potential juror who attended in accordance with a jury summons - selecting additional potential jurors from those attending in the same manner as was done in the formation of the original panel under section 23DS; or
(b) both:
(i) causing additional summonses to be issued under section 23DP to persons not already summonsed under that section for the jury; and
(ii) selecting additional persons from those summonsed and appearing in accordance with that section, in the same manner as was done in the formation of the original panel under section 23DS; or
(c) selecting a sufficient number of persons in the vicinity of the Court who are qualified to serve on the jury.
(2) For the purposes of this Division, a person selected under paragraph (1)(c) is taken to be a potential juror included on the jury panel.
23DX Challenges to potential jurors - general
(1) This section and sections 23DY and 23DZ set out each party’s rights to challenge the inclusion of a potential juror in a jury.
(2) If a party wishes to challenge the inclusion of a potential juror in the jury, the party must do so:
(a) after the potential juror’s name and/or number has been called in accordance with section 23DU; and
(b) before the potential juror sits in the jury box.
(3) If:
(a) the inclusion of a potential juror on the jury is challenged; and
(b) the challenge is upheld;
the potential juror must not be empanelled on the jury.
Note: The potential juror is taken to be discharged (see subsection 23EI(2)).
23DY Challenges for cause
(1) Each party to the proceedings may exercise an unlimited number of challenges for cause.
(2) A challenge to a potential juror for cause must be tried by a Judge before whom the jury is being empanelled.
23DZ Peremptory challenges
The accused is entitled to:
(a) 4 peremptory challenges; and
(b) an additional peremptory challenge if more than 12 jurors are to be empanelled for the proceedings.
Note: If more than one accused is being tried (see sections 23BB and 23BD), then each accused is entitled to this number of challenges.
23DZA Prosecutor may request that potential jurors be stood aside
(1) This section sets out the prosecutor’s right to request that a potential juror be stood aside.
(2) If:
(a) a potential juror’s name and/or number is called under subsection 23DU(1); and
(b) before the potential juror sits in the jury box, the prosecutor requests the Court to order the potential juror to stand aside;
the Court must order the potential juror to stand aside until all other potential jurors on the jury panel have been called for a first time.
(3) If:
(a) all potential jurors on the jury panel have been called for a first time; and
(b) there is fewer than the required number of jurors under section 23DC seated in the jury box;
any potential juror who has been ordered to stand aside is eligible to have his or her name and/or number called a second time in accordance with section 23DU.
Note: Subsection 23DU(1) requires potential jurors to be called at random.
(4) If a potential juror has his or her name and/or number called for a second time in accordance with subsection (3) the prosecutor may not request that the potential juror be stood aside.
Note: The prosecutor may still challenge the potential juror’s inclusion in the jury (see section 23DY).
(5) The prosecutor is entitled to:
(a) 4 requests under subsection (2); and
(b) an additional request under subsection (2) if more than 12 jurors are to be empanelled for the proceedings.
Subdivision E - Other jury matters
23EA Appointing the jury foreperson
The jury must appoint a foreperson:
(a) when directed by the Court; or
(b) in the absence of such a direction - as soon as practicable after being empanelled.
23EB Confidentiality directions
(1) The Court may give such directions as the Court thinks necessary in order to protect the security of a juror or potential juror.
(2) Without limiting subsection (1), the Court may direct that a potential juror:
(a) be called under subsection 23DU(1) by number only; and
(b) be referred to during the proceedings by number only.
(3) A direction under this section may cover more than one juror or potential juror.
23EC Things to help jury understand issues
(1) The Court may order such things (including copies of documents) as it thinks appropriate in the circumstances to be given to the jury to assist the jury to understand issues during the trial.
(2) The Court may specify in an order under subsection (1) when, and the manner in which, the things are to be given to the jury.
23ED Recalling the jury for further directions or evidence
After the jury retires to consider its verdict on a count in the indictment, but before the jury reaches its verdict on the count, the Court may recall the jury in order for the jury:
(a) to be given further directions; or
(b) to hear further evidence.
23EE When jury can separate
(1) The jury:
(a) may separate at any time before the jury retires to consider its verdict on a count in the indictment; but
(b) must not separate after the jury retires to consider its verdict on the count;
unless the Court orders to the contrary.
(2) The Court need not be in the presence of the jury when making an order under subsection (1).
23EF Directions and potential jurors and jurors
(1) Each juror is subject to the direction of the Sheriff and the Court.
Note: Failing to comply with a direction is an offence (see section 58AC).
(2) Each potential juror is, after attending for service as a juror in accordance with the jury summons, subject to the direction of the Sheriff and the Court.
Note: Failing to comply with a direction is an offence (see section 58AB).
23EG Sheriff’s powers
Investigations
(1) The Sheriff must investigate whether the verdict of a jury is being, or has been, affected because of the improper conduct of a juror or jurors if:
(a) the Sheriff has reason to suspect that the verdict is being, or has been, so affected, and the Court has consented to the investigation; or
(b) the Court requests the investigation.
Note: During and after the investigation, the Court or the Sheriff can give a direction to a juror under section 23EF.
(2) The Sheriff must report the outcome of the investigation to the Court.
Disclosing information
(3) Subsection (4) applies in relation to a person (the officer ) whose duties include convening juries for trials before a court of a State or Territory.
(4) The Sheriff may disclose to the officer information identifying a juror or former juror so that the officer can consider whether to summons the juror or former juror when convening a trial before the State or Territory court.
Note: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.
23EH Jurors’ remuneration
The regulations may provide for remuneration and allowances to be payable to the following persons:
(a) a potential juror who attends for service as a juror in accordance with a summons issued under section 23DP;
(b) a juror.
23EI Discharge of potential jurors
(1) A potential juror is discharged if the potential juror is excused from serving on the jury under Subdivision D.
(2) A potential juror is discharged if a challenge to the inclusion of the potential juror on the jury is upheld.
23EJ Discharge of jurors - by law
(1) A juror is discharged if the juror is not selected in a ballot conducted under section 23DE in relation to the jury.
(2) A juror is taken to be discharged if the juror dies.
23EK Discharge of jurors - by the Court
The Court, during a trial, must discharge a juror if it appears to the Court that the juror:
(a) is not impartial; or
(b) is incapable of continuing to act as a juror; or
(c) should not continue to act as a juror for any other reason.
23EL Discharge of jury
Discharge if composition of jury unsatisfactory
(1) Immediately following the empanelment of the jury for a trial, the Court may discharge the entire jury if the Court is satisfied that the exercise of challenges has resulted in a jury whose composition is such that the trial might be, or might appear to be, unfair.
Discharge if each count relating to the accused is dealt with
(2) The Court must discharge the jury in relation to an accused if each count in the indictment that relates to the accused is covered by one of the following paragraphs:
(a) the Court is satisfied that the jury is not able to reach a unanimous verdict on the count in relation to the accused;
(b) the jury delivers its verdict on the count in relation to the accused;
(c) the Court, under subsection 23FJ(1), accepts a plea of guilty by the accused to the count;
(d) the Court enters, under subsection 23FH(2), a judgment of acquittal for the count in relation to the accused;
(e) the count is an alternate to a count covered by one of the above paragraphs.
Discharge in the interests of justice
(3) The Court may, at any time during a trial, discharge a jury if the Court is satisfied that it is expedient to do so in the interests of justice.
Discharge if Judge incapable of proceeding
(4) If, during a trial, a Judge becomes incapable of proceeding with the trial or directing the discharge of the jury, another Judge must discharge the jury.
Discharge if number of jurors falls below 10
(5) The Court must discharge the jury immediately if the number of jurors falls below that permitted in subsection 23DD(3).
23EM Consequences of discharging the jury
General rule
(1) The Court must order a new trial of an accused in relation to a count in the indictment if:
(a) the jury is discharged without delivering a unanimous verdict on the count in relation to the accused; and
(b) the count is not covered by paragraph 23EL(2)(c), (d) or (e).
If Court thinks it appropriate to empanel a new jury from the same jury panel
(2) Subsection (1) does not apply if:
(a) the jury is discharged under subsection 23EL(1); and
(b) the Court thinks it appropriate to give a direction under subsection (3).
(3) If the jury is discharged under subsection 23EL(1), the Court may direct an officer of the Court to start the process for empanelling a new jury under section 23DU from the same jury panel.
(4) For the purposes of empanelling the new jury, this Division (other than this section) applies as if the first jury had not been empanelled.
Note 1: This has the effect of resetting the limits on challenges, and for the standing aside, of potential jurors.
Note 2: The Court may direct the Sheriff to supplement the jury panel under section 23DW.
(5) Despite subsection (4):
(a) the jurors on the first jury, and any potential jurors discharged before the empanelling of the first jury, cannot be empanelled on the new jury and remain discharged; and
(b) to avoid doubt, section 23DT is taken to have been satisfied in relation to the empanelling of the new jury.
Subdivision F - Matters relating to pleas, the trial and verdicts
23FA Accused to be arraigned before the jury
(1) If the prosecution of the accused is to proceed to trial, the accused must be arraigned before a jury in accordance with the Rules of Court.
(2) The trial on indictment of the accused starts when the accused is arraigned before the jury.
23FB Practice and procedure applicable to the trial
Unless the Court orders otherwise:
(a) the laws of the Commonwealth; and
(b) the laws of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; and
(c) the Rules of Court;
relating to the practice and procedure to be followed during the trial, are to be those in force at the time the indictment is filed in the Court.
23FC Admissibility of evidence given in committal proceedings
(1) If the trial happens as the result of a court committing the accused for trial before the Court, then this section applies to:
(a) evidence given by witnesses; and
(b) documents tendered in evidence;
( committal evidence ) during those committal proceedings (whether or not the committal evidence was given, or tendered, in relation to an offence being determined at the trial).
(2) The Court may allow a party to admit committal evidence, in whole or in part, as evidence at the trial if the Court is satisfied:
(a) that the individual who gave the evidence, or tendered the document, in the committal proceedings:
(i) is dead, or is so ill as not to be able to travel or to give evidence without a risk of endangering the individual’s life; or
(ii) is absent from Australia; or
(b) that there are other valid reasons for doing so.
23FD Entering pleas
(1) The accused may enter a plea of guilty, or not guilty, to a count in the indictment.
Note: The Court may reject a plea of guilty in the interests of justice (see subsection 23FJ(1)).
(2) The accused is taken to have entered a plea of not guilty to a count in the indictment if the accused fails to enter a plea to the count when directed by the Court.
Note: A failure to enter a plea includes a failure to say anything and a failure to give a direct answer.
(3) The accused may both:
(a) enter a plea to a count in the indictment; and
(b) object to the count.
23FE Pleading to some counts in satisfaction of other counts
If:
(a) the accused enters a plea of guilty to one or more counts in the indictment; and
(b) the prosecutor advises the Court that the prosecutor accepts the plea or pleas of guilty in satisfaction of the indictment;
the indictment is taken to be amended so that no other count in the indictment covers the accused.
23FF Pleading to different offences capable of being supported by indictment
(1) The accused may enter a plea of guilty to an offence not specified in the indictment if:
(a) the Court has jurisdiction to try a person for the offence; and
(b) the prosecutor consents; and
(c) the matters alleged in the indictment can support an allegation that the accused committed the offence.
(2) For the purposes of this Act, if the accused pleads guilty to an offence in accordance with subsection (1), the indictment is taken to have always included a count against the accused for the offence.
Note: If the accused proposes to enter a plea of guilty to an offence that cannot be supported by the matters alleged in the indictment, the prosecutor will need to amend the indictment under section 23BH to include a count for the offence before the accused can enter the plea to that offence.
23FG Changing pleas
Accused may change plea
(1) The accused may change his or her plea in accordance with this section.
Changing plea to guilty
(2) If the accused has entered a plea of not guilty in relation to a count in the indictment, the accused may change the plea to guilty.
Note: The Court may reject the change of plea in the interests of justice (see subsection 23FJ(1)).
Changing plea to not guilty
(3) If the accused has entered a plea of guilty in relation to a count in the indictment, the accused may change the plea to not guilty only with the leave of the Court. The Court may grant leave at any time before the Court imposes a sentence on the accused in relation to an offence specified in the count.
(4) If the accused changes the plea in accordance with subsection (3):
(a) the Court must direct that the accused be put on trial in relation to the count; and
(b) the Court may make such orders as to matters preliminary to the trial as the Court thinks appropriate.
Note: The Court could, for example, make orders under Subdivision C.
23FH Court’s verdict if no case to answer
(1) This section applies if:
(a) after the close of the prosecutor’s case for a count in the indictment in relation to the accused; and
(b) before the jury delivers its verdict for the count in relation to the accused;
the Court finds the accused has no case to answer in relation to the count.
(2) The Court must:
(a) enter a judgment of acquittal for the count in relation to the accused; and
(b) discharge the accused in relation to the count.
(3) The Court must not direct the jury to deliver a verdict for the count in relation to the accused.
23FI Jury’s verdict
Verdict must be unanimous
(1) The jury’s verdict on each count in the indictment must be unanimous. If the indictment includes alternate counts, the jury need only reach a verdict on one of those counts.
(2) Before the jury retires to consider its verdict on a count in the indictment, the Court must inform the jury that its verdict must be unanimous.
Jury may deliver alternative verdicts
(3) If an offence specified in a count in the indictment is an offence for which an Act allows the jury to find the accused:
(a) not guilty of the offence; but
(b) guilty of another offence;
the Court may inform the jury of this.
(4) If, in accordance with an Act referred to in subsection (3), the jury unanimously finds the accused:
(a) not guilty of an offence specified in a count in the indictment; but
(b) guilty of another offence;
the indictment is taken to have always included a count against the accused for the other offence.
Foreperson is to deliver the verdict
(5) The jury’s verdict is to be delivered by the jury foreperson.
23FJ Consequences of guilty pleas and guilty verdicts
Guilty pleas
(1) If the accused:
(a) enters a plea of guilty; or
(b) changes, in accordance with subsection 23FG(2), a plea of not guilty to a plea of guilty;
to a count in the indictment, the Court must accept the plea of guilty unless:
(c) the Court gives leave under subsection 23FG(3) for the accused to change the plea of guilty to a plea of not guilty; or
(d) it would be contrary to the interests of justice to accept the plea of guilty.
(2) If a plea of guilty is not accepted under subsection (1):
(a) the plea has no further effect; and
(b) the accused is taken to have entered a plea of not guilty to the count.
Guilty verdicts
(3) If the jury delivers a unanimous verdict of guilty for a count in the indictment in relation to an accused, the Court must accept the verdict unless it would be contrary to the interests of justice to do so.
Consequences of accepting a guilty plea or guilty verdict
(4) If a plea of guilty, or a verdict of guilty, is accepted for a count in the indictment in relation to an accused, then:
(a) the Court is taken to have found the count proven in relation to the accused; and
(b) the accused is taken to be convicted of the offence covered by the count; and
(c) the Court must proceed to sentence the accused in relation to the offence (whether or not the Court first adjourns the proceedings); and
(d) if there is an alternate count included in the indictment for the accused and the first-mentioned count - the Court must discharge the accused in relation to the alternate count.
(5) However, if the accused changes, in accordance with subsection 23FG(3), a plea of guilty to the count to a plea of not guilty, then:
(a) paragraphs (4)(a) and (b) are taken never to have applied in relation to the plea of guilty; and
(b) the Court must cease any sentencing proceedings to the extent that those proceedings relate to the plea of guilty; and
(c) if the Court has discharged the accused under paragraph (4)(d) in relation to an alternate count - the accused is taken never to have been so discharged.
(6) Paragraph (4)(b) does not apply if, when sentencing the accused in relation to the offence, the Court makes an order under section 19B of the Crimes Act 1914.
23FK Consequences of not guilty verdicts
If the jury delivers a unanimous verdict of not guilty for a count in the indictment in relation to the accused, the Court must acquit and discharge the accused in relation to the count.
Subdivision G - Procedure on committal for sentencing
23GA When Subdivision applies
This Subdivision applies if, as a result of the accused entering a plea of guilty to an indictable offence, a court (the committal court ) makes an order (the committal order ) committing the accused for sentencing before the Court for the offence.
23GB Accused taken to have been committed for trial etc.
(1) For the purposes of this Act and the Judiciary Act 1903, the committal court is taken to have made an order:
(a) on the day it made the committal order; and
(b) to the effect of committing the accused for trial before the Court for the indictable offence.
(2) If an indictment including a count covering the indictable offence is filed in accordance with this Division, then this Division applies as if:
(a) the accused entered before the Court, immediately after that filing, a plea of guilty to the count; and
(b) paragraph 23CA(1)(b) were omitted.
Note: The Court must accept the plea unless either the Court gives leave to the accused to change the plea to a plea of not guilty, or if it would be contrary to the interests of justice to accept the plea (see subsection 23FJ(1)).
Subdivision H - Custodial and other matters
23HA Remanding in custody when proceedings adjourned
(1) If, during indictable primary proceedings:
(a) there is no bail order having effect for the accused for the offence; or
(b) if a bail order is so having effect, the accused cannot be released on bail for the offence (see subsection 58DE(1));
the Court may, by warrant of commitment, remand the accused in custody during an adjournment in the proceedings.
Note 1: Before the accused’s first appearance before the Court, the person may be being remanded in custody or granted bail under the law of a State or Territory applied by subsection 68(1) of the Judiciary Act 1903.
Note 2: Subject to this subsection, State or Territory law will apply in relation to custody matters before the Court during the proceedings (see sections 68 and 68B of the Judiciary Act 1903).
(2) A warrant of commitment under subsection (1) may be signed by any Judge, the Registrar or any Deputy Registrar, District Registrar or Deputy District Registrar of the Court.
23HB Oaths and affirmations
(1) A person required to make an oath or affirmation under this Division must make the oath or affirmation in the form provided for in the Rules of Court.
(2) The Court may require a person to make an oath or affirmation for the purposes of this Division if the Court thinks this is reasonably necessary.
23HC Protecting witnesses etc.
(1) The Court may make such orders as it thinks appropriate in the circumstances to protect:
(a) witnesses called or proposed to be called; or
(b) information, documents and other things admitted or proposed to be admitted;
in indictable primary proceedings.
Note: The Court may also restrict or prohibit the publication of information about witnesses and evidence (see section 50).
(2) Without limiting subsection (1), the Court may do either or both of the following under that subsection:
(a) order the exclusion of the public, or of persons specified by the Court, from a sitting of the Court;
(b) direct how a witness may give evidence.
23HD Accused cannot make unsworn statements
An accused cannot make an unsworn statement in indictable primary proceedings.
23HE Costs
Nothing in this Act gives the Court power to award costs in indictable primary proceedings.