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

4   After Part VI

Insert:

Part VIA - Offences relating to juries

Division 1 - Offences

58AA Failing to attend for jury service

(1) A person commits an offence if:

(a) the person has been served with a summons under:

(i) section 23DP; or

(ii) a law applying under subsection 41(1); and

(b) the summons has not been withdrawn; and

(c) the person has not been excused from serving as a juror in the proceedings to which the summons relates; and

(d) the person fails to attend for service as a juror in accordance with the summons.

Penalty: 30 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

58AB Failing to comply with directions - persons attending for jury service

Criminal trials

(1) A person commits an offence if:

(a) the person is a potential juror in relation to indictable primary proceedings; and

(b) the person attends for service as a juror; and

(c) the person has not been discharged under section 23EI; and

(d) the person is given a direction by the Sheriff or the Court; and

(e) the person fails to comply with the direction.

Penalty: 30 penalty units.

Civil trials

(2) A person commits an offence if:

(a) the person is a potential juror in relation to civil proceedings before the Court; and

(b) the person attends for service as a juror; and

(c) the person has not been discharged under a law applying under subsection 41(1); and

(d) the person is given a direction by the Sheriff or the Court; and

(e) the person fails to comply with the direction.

Penalty: 30 penalty units.

(3) Subsections (1) and (2) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) - see subsection 13.3(3) of the Criminal Code.

58AC Failing to comply with directions - jurors

(1) A person commits an offence if:

(a) the person is a juror; and

(b) neither the jury nor the juror has been discharged; and

(c) the person is given a direction by the Sheriff or the Court; and

(d) the person fails to comply with the direction.

Penalty: 30 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

58AD Impersonating a juror or potential juror

(1) A person commits an offence if:

(a) the person impersonates another person; and

(b) the first-mentioned person does so with the intent of:

(i) being empanelled as a juror; or

(ii) causing the other person to be excused from serving as a juror.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person impersonates another person; and

(b) the first-mentioned person does so with the intent of:

(i) acting as a juror; or

(ii) causing the other person to be discharged from serving as a juror.

Penalty: Imprisonment for 2 years.

58AE Failing to complete and return a questionnaire

(1) A person commits an offence if:

(a) the person is sent a questionnaire under subsection 23DN(2); and

(b) the person either:

(i) fails to return the questionnaire in accordance with subsection 23DN(3); or

(ii) returns the questionnaire but fails to complete it in accordance with subsection 23DN(3).

Penalty: 30 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

58AF False or misleading information to avoid jury service

(1) A person commits an offence if:

(a) the person gives information to the Court, the Sheriff or another officer of the Court; and

(b) the information:

(i) is false or misleading; or

(ii) omits any matter or thing without which the information is misleading; and

(c) the person does so with the intent of avoiding service as a juror.

Penalty: 60 penalty units.

(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) - see subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

58AG Bribery of jurors or potential jurors

Giving a bribe

(1) A person commits an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the person does so with the intent of influencing:

(i) a juror (who may or may not be the other person) in the exercise of the juror’s duties as a juror; or

(ii) a potential juror (who may or may not be the other person) in the exercise of the potential juror’s duties as a potential juror.

Penalty: Imprisonment for 10 years.

Receiving a bribe

(2) A person commits an offence if:

(a) the person is a juror or potential juror; and

(b) the person dishonestly:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person; and

(c) the person does so with the intent:

(i) that the exercise of the person’s duties as a juror or potential juror will be influenced; or

(ii) of inducing, fostering or sustaining a belief that the exercise of the person’s duties as a juror or potential juror will be influenced.

Penalty: Imprisonment for 10 years.

Determination of dishonesty to be a matter for the trier of fact

(3) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

Expressions have Criminal Code meaning

(4) An expression used in this section that is also used in Chapter 7 of the Criminal Code has the same meaning in this section as it has in that Chapter.

58AH Causing or threatening harm to jurors, potential jurors or former jurors

Causing harm

(1) A person (the first person ) commits an offence if:

(a) the first person engages in conduct; and

(b) the first person’s conduct causes harm to another person (the second person ); and

(c) the second person, or a third person, (the targeted person ) is a juror, potential juror or former juror; and

(d) the first person intends that his or her conduct cause harm to the second person; and

(e) the harm is caused without the consent of the second person; and

(f) the first person engages in his or her conduct because of:

(i) the targeted person’s status as a juror, potential juror or former juror; or

(ii) any conduct engaged in by the targeted person in the targeted person’s capacity as a juror or potential juror.

Penalty: Imprisonment for 10 years.

Threatening to cause harm

(2) A person (the first person ) commits an offence if:

(a) the first person makes to another person (the second person ) a threat to cause harm to the second person or to a third person; and

(b) the second person, or the third person, (the targeted person ) is a juror, potential juror or former juror; and

(c) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the targeted person’s status as a juror, potential juror or former juror; or

(ii) any conduct engaged in by the targeted person in the targeted person’s capacity as a juror or potential juror.

Penalty: Imprisonment for 7 years.

When conduct causes harm

(3) For the purposes of this section, a person’s conduct is taken to cause harm if it substantially contributes to harm.

Unnecessary to prove that a threatened person actually feared harm

(4) In a prosecution for an offence against this section, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

Expressions have Criminal Code meaning

(5) An expression used in this section that is also used in Part 7.8 of the Criminal Code has the same meaning in this section as it has in that Part.

58AI Obstructing jurors or potential jurors

A person commits an offence if:

(a) the person knows that another person is a juror or potential juror; and

(b) the first-mentioned person obstructs, hinders, intimidates or resists the other person in the performance of the other person’s duties, or functions, as a juror or potential juror.

Penalty: Imprisonment for 12 months.

58AJ Publishing or broadcasting information identifying jurors, potential jurors or former jurors

(1) A person commits an offence if:

(a) the person publishes or broadcasts information to the public; and

(b) either:

(i) the information identifies another person as a juror, potential juror or former juror; or

(ii) a member of the public could reasonably be expected to identify the other person as a juror, potential juror or former juror either on the basis of the information or on the basis of the information in conjunction with other publicly-available information.

Penalty: 50 penalty units.

(2) A person commits an offence if:

(a) the person publishes or broadcasts information to a section of the public; and

(b) either:

(i) the information identifies another person as a juror, potential juror or former juror; or

(ii) a member of that section of the public could reasonably be expected to identify the other person as a juror, potential juror or former juror either on the basis of the information or on the basis of the information in conjunction with other information available to that section of the public.

Penalty: 50 penalty units.

(3) Subsections (1) and (2) do not apply to a publication or broadcast that occurs in circumstances specified in regulations made for the purposes of this section.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

58AK Soliciting information from jurors

(1) A person commits an offence if:

(a) the person (the first person ) solicits another person (the second person ) for information; and

(b) the second person is a juror or former juror; and

(c) one of the following subparagraphs applies:

(i) the information identifies a person as a juror or former juror;

(ii) the first person could reasonably be expected to identify a person as a juror or former juror either on the basis of the information or on the basis of the information in conjunction with other information available to the first person;

(iii) the information relates to the deliberations of the jury.

Penalty: 60 penalty units.

(2) A person commits an offence if:

(a) the person (the first person ) solicits another person (the second person ) for information; and

(b) the second person is a juror or former juror; and

(c) one of the following subparagraphs applies:

(i) the information identifies a person as a juror or former juror;

(ii) the first person could reasonably be expected to identify a person as a juror or former juror either on the basis of the information or on the basis of the information in conjunction with other information available to the first person;

(iii) the information relates to the deliberations of the jury; and

(d) the first person:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person;

in relation to the soliciting of the information.

Penalty: Imprisonment for 6 months.

(3) Subsections (1) and (2) do not apply if:

(a) a Judge or officer of the Court solicits the information because of a suspicion that a juror or former juror is or was biased in relation to the performance of that juror’s, or former juror’s, duties as a juror; or

(b) an investigating official solicits the information because of a suspicion that a juror or former juror committed:

(i) fraud; or

(ii) another offence against a law of the Commonwealth or a State or Territory;

in relation to the performance of that juror’s, or former juror’s, duties as a juror; or

(c) the information was solicited in accordance with the performance of a function under this Act; or

(d) the information was solicited in accordance with an authority granted by the Attorney-General for the conduct of a research project into matters relating to juries or jurors; or

(e) a health professional solicited the information from the former juror when treating the former juror in relation to issues arising out of the former juror’s service on the jury.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

(4) In this section:

benefit has the same meaning as in the Criminal Code.

investigating official means any of the following:

(a) the Attorney-General;

(b) the Director of Public Prosecutions;

(c) a member of the Australian Federal Police or of the police force or police service of a State or Territory;

(d) a Judge or officer of the Court.

58AL Disclosing information about a jury

(1) A person commits an offence if:

(a) the person is a juror or former juror; and

(b) the person discloses information to another person (the second person ); and

(c) one of the following subparagraphs applies:

(i) the information identifies a person as a juror or former juror;

(ii) the second person could reasonably be expected to identify a person as a juror or former juror either on the basis of the information or on the basis of the information in conjunction with other information available to the second person;

(iii) the information relates to the deliberations of the jury.

Penalty: 60 penalty units.

(2) A person commits an offence if:

(a) the person is a juror or former juror; and

(b) the person discloses information to another person (the second person ); and

(c) one of the following subparagraphs applies:

(i) the information identifies a person as a juror or former juror;

(ii) the second person could reasonably be expected to identify a person as a juror or former juror either on the basis of the information or on the basis of the information in conjunction with other information available to the second person;

(iii) the information relates to the deliberations of the jury; and

(d) the first-mentioned person:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person;

in relation to the disclosure.

Penalty: Imprisonment for 6 months.

(3) Subsections (1) and (2) do not apply if:

(a) the disclosure was to a Judge or officer of the Court because of a suspicion that a juror or former juror is or was biased in relation to the performance of that other juror’s, or former juror’s, duties as a juror; or

(b) the disclosure was to an investigating official because of a suspicion that a juror or former juror committed:

(i) fraud; or

(ii) another offence against a law of the Commonwealth or a State or Territory;

in relation to the performance of that other juror’s, or former juror’s, duties as a juror; or

(c) the disclosure was made in accordance with the performance of a function under this Act; or

(d) the disclosure was made in accordance with an authority granted by the Attorney-General for the conduct of a research project into matters relating to juries or jurors; or

(e) the disclosure was made by a former juror to a health professional who is treating the former juror in relation to issues arising out of the former juror’s service on the jury.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.

Interpretation

(4) An expression used in subsection (2) that is also used in Chapter 7 of the Criminal Code has the same meaning in that subsection as it has in that Chapter.

(5) In this section:

investigating official means any of the following:

(a) the Attorney-General;

(b) the Director of Public Prosecutions;

(c) a member of the Australian Federal Police or of the police force or police service of a State or Territory;

(d) a Judge or officer of the Court.

58AM Making improper inquiries as a juror or potential juror

A person commits an offence if:

(a) the person is a juror or potential juror; and

(b) the person makes an inquiry for the purposes of obtaining information relating to:

(i) in the case of indictable primary proceedings - the accused, or one of the accused, being tried; or

(ii) in every case - any matter relevant to the trial; and

(c) the inquiry is not directed to the presiding Judge, the Sheriff or a fellow juror or fellow potential juror.

Penalty: 60 penalty units.

Division 2 - Infringement notices

58BA When an infringement notice can be given

(1) If the Sheriff has reasonable grounds to believe that a person has committed an offence against section 58AA or 58AE, the Sheriff may give the person an infringement notice relating to the alleged offence.

(2) The infringement notice must be given within 12 months after the day on which the offence is alleged to have been committed.

58BB Matters to be included in an infringement notice

An infringement notice must:

(a) be identified by a unique number; and

(b) set out the name of the person to whom the notice is given (the recipient ); and

(c) set out the name of the person who gave the notice; and

(d) set out brief details of the alleged offence, including relevant dates and the maximum penalty a court could impose for the alleged offence; and

(e) state that criminal proceedings will not be brought in relation to the matter if the penalty specified in the notice is paid to the Sheriff, on behalf of the Commonwealth, within:

(i) 28 days after the notice is given; or

(ii) if the Sheriff allows a longer period - that longer period; and

(f) state that payment of the penalty is not an admission of guilt or liability; and

(g) give an explanation of how payment of the penalty is to be made; and

(h) invite the recipient to, within 28 days after the notice is given, notify the Sheriff in the manner set out in the notice of any reason why the Sheriff should withdraw the infringement notice; and

(i) state that the period referred to in paragraph (e) will be extended if the Sheriff is given a notification described in paragraph (h); and

(j) set out such other matters (if any) as are specified in the regulations.

58BC Amount of penalty

The penalty to be specified in an infringement notice relating to an alleged offence must be a pecuniary penalty equal to one-fifth of the maximum penalty that a court could impose for the offence.

58BD Withdrawal of an infringement notice

Sheriff may withdraw an infringement notice

(1) This section applies if an infringement notice is given to a person.

(2) The Sheriff may, by written notice (the withdrawal notice ) given to the person, withdraw the infringement notice.

Withdrawal can only occur after first 28 days if Sheriff notified of reasons

(3) A withdrawal notice cannot be given more than 28 days after the infringement notice was given unless the person has notified the Sheriff in accordance with the infringement notice of a reason why the Sheriff should withdraw the infringement notice.

If person notifies Sheriff of reasons to withdraw

(4) If the person notifies the Sheriff in accordance with the infringement notice of a reason why the Sheriff should withdraw the infringement notice, the Sheriff must:

(a) decide whether to withdraw the infringement notice; and

(b) if the Sheriff decides to refuse to withdraw the infringement notice - give the person a written notice (the refusal notice ) of that decision.

(5) The refusal notice must contain a statement to the effect that criminal proceedings will not be brought in relation to the matter if the penalty specified in the infringement notice is paid to the Sheriff, on behalf of the Commonwealth, within 28 days after the refusal notice is given.

Refund of penalty if infringement notice withdrawn

(6) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

58BE What happens if the penalty is paid

(1) This section applies if:

(a) an infringement notice relating to an alleged offence against section 58AA or 58AE is given to a person; and

(b) the penalty is paid in accordance with:

(i) the infringement notice; or

(ii) if a refusal notice is given to the person under subsection 58BD(4) - the refusal notice; and

(c) the infringement notice is not withdrawn.

(2) Any liability of the person for the alleged offence is discharged.

(3) Criminal proceedings may not be brought against the person for the alleged offence.

(4) The person is not regarded as having been convicted of the offence specified in the infringement notice.

58BF Effect of this Division on criminal proceedings

(1) This Division does not:

(a) require an infringement notice to be given in relation to an alleged offence against section 58AA or 58AE; or

(b) affect the liability of a person to be prosecuted for an offence against section 58AA or 58AE if:

(i) the person does not comply with an infringement notice, or a refusal notice given to the person under subsection 58BD(4), relating to the offence; or

(ii) an infringement notice relating to the offence is not given to the person; or

(iii) an infringement notice relating to the offence is given to the person and subsequently withdrawn; or

(c) limit a court’s discretion to determine the amount of a penalty to be imposed on a person convicted of an offence against section 58AA or 58AE.

(2) Evidence of an admission made by a person in notifying the Sheriff in accordance with an infringement notice of a reason why the Sheriff should withdraw the infringement notice is inadmissible in proceedings against the person for the alleged offence concerned.

(3) Subsection (2) does not apply if the person gives evidence in the proceedings that is inconsistent with the admission.

58BG Regulations

The regulations may make further provision in relation to:

(a) infringement notices; and

(b) refusal notices given under subsection 58BD(4).

Part VIB - Bail

Division 1 - Introduction

58CA Simplified outline

The following is a simplified outline of this Part:

• During indictable primary proceedings or criminal appeal proceedings the Court may grant (and continue) bail for the accused.

• If granted bail, the accused must sign a bail undertaking.

• A decision about bail may be reconsidered if there is a change in circumstances.

• The Court must also reconsider bail if the accused fails to comply with the accused’s bail undertaking.

• A failure by the accused to appear before the Court in accordance with the accused’s bail undertaking may be an offence, and may lead to the forfeiture of security provided as a condition of bail.

Note 1: The procedures relating to bail and custody during committal proceedings, and during summary prosecutions in the Court, are those applying under subsection 68(1) of the Judiciary Act 1903 (see also paragraph 68B(1)(b) of that Act).

Note 2: During indictable primary proceedings, the Court may decide to remand the accused in custody (see section 23HA).

Division 2 - Granting bail

58DA Applying for bail

(1) During indictable primary proceedings or criminal appeal proceedings, the accused can apply to the Court for bail for one or more offences.

(2) However, if the Court refuses to grant bail to the accused for an offence, the accused cannot apply again for bail for the offence unless there has been a material change in circumstances since the refusal.

58DB Granting bail

(1) The Court may, by order, grant bail to the accused for one or more of the offences.

(2) In deciding whether to grant bail, the Court must consider the following:

(a) whether the accused will appear in court if bail is granted;

(b) the interests of the accused;

(c) the protection of any other person;

(d) the protection and welfare of the community, including whether there is a risk that the accused will commit offences if bail were granted;

(e) whether there is a risk that the accused will approach witnesses or attempt to destroy evidence.

(2A) An accused applying for bail during indictable primary proceedings is entitled to be granted bail during the proceedings in relation to an offence against either of the following sections of the Trade Practices Act 1974:

(a) section 44ZZRF (making a contract etc. containing a cartel provision);

(b) section 44ZZRG (giving effect to a cartel provision);

unless the Court decides otherwise after considering the matters mentioned in subsection (2).

(3) In deciding whether to grant bail during criminal appeal proceedings, the Court must also be satisfied that there are exceptional circumstances that justify granting bail.

(4) This section has effect subject to any other Act.

58DC Bail may be granted subject to conditions

(1) A bail order may be made unconditionally or subject to one or more specified conditions.

(2) Without limiting subsection (1), the conditions can include one or more of the following:

(a) the accused reside at a specified place;

(b) the accused report to a specified person at a specified place at a specified time or times;

(c) the accused surrender any passport held by the accused and agree not to approach a point of international departure;

(d) the accused provide security in the form of money, or other property, for forfeiture if the accused fails to appear before the Court in accordance with the accused’s bail undertaking;

(e) one or more other specified persons provide security in the form of money, or other property, for forfeiture if the accused fails to appear before the Court in accordance with the accused’s bail undertaking.

(3) Money or other property deposited with the Court, or otherwise provided, as security in accordance with a condition of bail must be dealt with by the Court in accordance with the Rules of Court.

58DD Bail to be stayed pending appeal

(1) If:

(a) the Court makes a bail order; and

(b) the prosecutor requests the Court to stay the bail order pending appeal;

the bail order is stayed by force of this section for 48 hours.

(2) If a notice of appeal from the bail order is filed within that 48 hours, the stay of the bail order continues by force of this section until:

(a) the appeal is finally disposed of; or

(b) the prosecutor withdraws the appeal in accordance with the Rules of Court; or

(c) a Full Court orders, under this subsection, that the stay be set aside;

whichever happens first.

(3) If the prosecutor makes a request under paragraph (1)(b), the appeal from the making of the bail order must be dealt with as quickly as possible.

(4) If a bail order is stayed by force of this section, the Court must, by warrant of commitment, remand the accused in custody for the duration of the stay.

(5) A warrant of commitment under subsection (4) may be signed by any Judge, the Registrar or any Deputy Registrar, District Registrar or Deputy District Registrar of the Court.

58DE Bail undertakings etc.

(1) If the Court grants bail to the accused, then the accused can only be released on bail if:

(a) the accused has signed an undertaking (a bail undertaking ) containing the matters set out in subsection (2) and made in accordance with the Rules of Court; and

(b) each other person (if any), who as a condition of bail has agreed to provide security, has signed an undertaking (a third party security undertaking ) made in accordance with the Rules of Court; and

(c) subsection 58DC(3) is complied with in relation to any security required as a condition of bail.

(2) A bail undertaking must set out:

(a) an undertaking by the accused to:

(i) appear in person before the Court in accordance with the bail order; and

(ii) promptly notify the Court if the accused changes his or her residential address; and

(b) an undertaking by the accused to comply with the specified conditions, if any, on which bail has been granted.

(3) A bail undertaking, and any third party security undertaking made in relation to the accused’s bail, must be expressed to cover:

(a) the period for which bail was granted; and

(b) each period for which bail may be continued under subsection 58GA(1).

(4) The Registrar must cause the parties to be given a copy of:

(a) the accused’s bail undertaking; and

(b) any third party security undertaking made in relation to the accused’s bail.

58DF Effect of granting bail

(1) If an accused is released on bail under this Part for an offence, the accused is entitled to be at liberty in respect of the offence in accordance with the accused’s bail undertaking.

Note: This does not prevent the accused from being held in custody for some other offence.

(2) Subsection (1) is subject to a stay under section 58DD.

58DG Seeking discharge from undertaking to give security

(1) A person who has made a third party security undertaking in relation to the accused’s bail may apply to the Court to be discharged from the person’s liability under that undertaking.

(2) If:

(a) the person so applies; and

(b) at the time of applying, the accused has not failed to appear before the Court in accordance with the accused’s bail undertaking;

the Court must direct that the person be discharged from this liability, unless satisfied it would be contrary to the interests of justice to do so.

Note: A direction will cause a reconsideration of the accused’s bail (see Division 3).

58DH Dealings with property given as security for bail

A person commits an offence if:

(a) the person is:

(i) an accused who has signed a bail undertaking; or

(ii) a person who has signed a third party security undertaking made in relation to the accused’s bail; and

(b) the person has, under that undertaking, undertaken to forfeit security if the accused does not appear before the Court in accordance with the accused’s bail undertaking; and

(c) while the person’s undertaking is in force, the person:

(i) disposes of, or otherwise deals with, any of that security that is not money; and

(ii) intends by this to prevent the forfeiture of the security, to destroy the security or to reduce its value.

Penalty: Imprisonment for 2 years.

Division 3 - Reconsidering bail orders

58EA Reconsidering bail - discharge of security or accused fails to comply with the accused’s bail undertaking

(1) This section applies if, in relation to a bail order:

(a) the Court gives a direction under subsection 58DG(2); or

(b) the prosecutor applies for the bail order to be varied or revoked on the basis that the accused has failed to comply with the accused’s bail undertaking.

(2) The Court must cause the accused to be brought before the Court in accordance with the Rules of Court.

Note: In a case where the accused failed to appear before the Court in accordance with the accused’s bail undertaking, the Court may be asked to commence forfeiture proceedings (see section 58FB).

(3) The Court may, by order, vary or revoke the bail order.

(4) In deciding whether to vary or revoke the bail order, the Court must consider:

(a) the matters set out in subsection 58DB(2); and

(b) if the decision is to be made during criminal appeal proceedings - the principle that exceptional circumstances must exist for the accused to be released on bail.

58EB Reconsidering bail - change in circumstances

(1) The Court may, by order, vary or revoke the accused’s bail order under this section if:

(a) the Court is satisfied that there has been a sufficient change in circumstances since the making of the bail order; and

(b) the Court considers:

(i) the matters set out in subsection 58DB(2); and

(ii) if the decision is to be made during criminal appeal proceedings - the principle that exceptional circumstances must exist for the accused to be released on bail.

(2) If the Court is satisfied an application for an order under this section is frivolous or vexatious, the Court may refuse the application without a hearing.

58EC Consequences if bail is varied or revoked

(1) If the Court varies the accused’s bail under this Division, then the accused can only be released on bail if:

(a) the accused has signed a new bail undertaking under paragraph 58DE(1)(a); and

(b) each other person (if any), who has undertaken to provide security as a condition of bail, has signed a new third party security undertaking under paragraph 58DE(1)(b); and

(c) subsection 58DC(3) is complied with in relation to any security required as a condition of bail.

(2) If the Court revokes the accused’s bail under this Division, the Court may cause the accused to be committed to prison in accordance with the Rules of Court.

Division 4 - Further consequences if accused fails to appear in accordance with bail undertaking

58FA Offence for failing to appear before the Court

(1) A person commits an offence if:

(a) the person is the accused; and

(b) the person gives the Court a bail undertaking; and

(c) the person is released on bail under this Part; and

(d) the person fails to appear before the Court in accordance with the bail undertaking.

Penalty: Imprisonment for 2 years.

Note: The accused’s bail will also be reconsidered under Division 3.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) - see subsection 13.3(3) of the Criminal Code.

58FB Notice of proposed forfeiture

(1) The prosecutor may apply to the Court for a direction under subsection (2) if the accused allegedly fails to appear before the Court in accordance with the accused’s bail undertaking.

(2) The Court may direct the Registrar to give a notice to:

(a) each person who provided security for the accused’s bail; and

(b) any other person who the Court considers may have an interest in security provided for the accused’s bail.

A failure by the Registrar to give a notice to a person covered by the direction, if the Registrar has made reasonable efforts to do so, does not affect the validity of any forfeiture order.

(3) The notice must:

(a) invite the person to show cause, by filing an objection in accordance with paragraphs 58FC(3)(b) and (c), why the security should not be forfeited; and

(b) contain the particulars set out in the Rules of Court.

(4) An application under subsection (1) cannot be made more than 6 months after the alleged failure to appear before the Court.

58FC Ordering forfeiture

(1) The Court must order the forfeiture of all specified security provided by a particular person for the accused’s bail if the Court is satisfied that the accused failed to appear before the Court in accordance with the accused’s bail undertaking.

Note 1: For the forfeiture of security provided by more than one person, separate forfeiture orders will be required.

Note 2: A forfeiture order may be appealed (see subsection 30AA(3)).

(2) However, the Court may decide to not make a forfeiture order, or to reduce the amount of security to be forfeited, if the Court is satisfied that:

(a) the accused had a reasonable excuse for failing to appear; or

(b) it is in the interests of justice to do so.

(3) In deciding whether to make a forfeiture order, the Court must consider any objection:

(a) filed by a person who the Court is satisfied either provided security for the accused’s bail or has an interest in such security; and

(b) filed before the end of the 28th day after:

(i) if the person was given a notice under subsection 58FB(2) - the day of being given the notice; or

(ii) otherwise - the first day on which a notice was given to a person under subsection 58FB(2); and

(c) containing the particulars set out in the Rules of Court.

The Court may also invite the person to make submissions.

58FD When forfeiture orders take effect

(1) A forfeiture order never takes effect if it is set aside on appeal.

(2) If the forfeiture order is not set aside on appeal, it takes effect:

(a) if a notice of appeal was not filed in relation to the order - at the end of the time for filing such a notice under section 30AF; or

(b) otherwise - when the appeal is finally disposed of.

Note: If a forfeiture order is varied on appeal, it will take effect as varied.

(3) If a forfeiture order takes effect, the Registrar must give written notice that it has taken effect to:

(a) the person who provided the security forfeited by the order; and

(b) each other person (if any) who objected to the making of the order in relation to that security.

58FE Effect of forfeiture orders

Security is money held by the Court or property other than registrable property

(1) If security specified in a forfeiture order is:

(a) money deposited with or otherwise provided to the Court; or

(b) property other than:

(i) money; or

(ii) registrable property;

the security vests absolutely in the Commonwealth at the time the order takes effect.

Security is money not held by the Court

(2) If security specified in a forfeiture order is an amount of money that has not been deposited with or otherwise provided to the Court, then:

(a) the amount is taken to be a civil debt payable by the provider of the security to the Commonwealth at the time the order takes effect; and

(b) the Commonwealth may enforce the forfeiture order as if it were an order made in civil proceedings against the provider to recover a debt due by the provider; and

(c) the debt arising from the order is taken to be a judgment debt; and

(d) if the undertaking under which the amount was provided as security also specified property to secure payment of the amount - the Commonwealth may enforce the undertaking in respect of that property.

Security is registrable property

(3) If security specified in a forfeiture order is registrable property, then:

(a) that property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; and

(b) the prosecutor may, on behalf of the Commonwealth, do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; and

(c) the Commonwealth is entitled to be registered as the owner of that property; and

(d) the Court may, by order, authorise a person to:

(i) do; or

(ii) authorise the doing of;

anything necessary or convenient to obtain the registration of the Commonwealth as the owner.

(4) The powers of a person who is the subject of an order under paragraph (3)(d) include executing any instrument required to be executed by a person transferring an interest in property of that kind.

Meaning of registrable property

(5) In this section:

registrable property means property, title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory.

Division 5 - When bail ends

58GA Continuing bail orders

(1) The Court may direct that a bail order continue to have effect.

(2) Unless the Court orders otherwise, if:

(a) the accused appears before the Court in accordance with the accused’s bail undertaking; and

(b) the accused’s bail order would no longer have effect after that appearance (otherwise than because of section 58GB); and

(c) the Court does not make a direction under subsection (1) during that appearance;

the Court is taken to have directed under subsection (1) that the bail order continue to have effect until the accused’s next scheduled appearance before the Court.

(3) If the Court gives a direction under subsection (1), each of the following continue to have effect:

(a) the accused’s bail undertaking;

(b) each third party security undertaking made in relation to the accused’s bail;

subject to any contrary intention in the undertaking and to any variation ordered by the Court.

58GB Bail discharged if the Court discharges the accused

A bail order ceases to have effect if the Court discharges the accused in relation to all the offences for which bail was granted.

58GC Continuing security undertakings when bail ends

(1) This section applies if:

(a) security was provided for the accused’s bail; and

(b) the accused’s bail order is revoked under section 58EA because of a failure by the accused to appear before the Court in accordance with the accused’s bail undertaking.

(2) Despite the revocation, each of the following continue to have effect to the extent to which they relate to the security provided for the accused’s bail:

(a) the accused’s bail undertaking;

(b) each third party security undertaking made in relation to the accused’s bail.

Note: Generally, the bail undertaking and any third party security undertaking will automatically end at the same time as the bail order.

(3) This continuation of an undertaking to provide security ceases if:

(a) a forfeiture order cannot take effect in relation to the security and the failure; or

(b) the Court orders the continuation to cease.

Note 1: When a forfeiture order takes effect is set out in section 58FE.

Note 2: A forfeiture order cannot be made unless an application is made within 6 months of the failure (see subsection 58FB(4)).

58GD Returning security when bail ends

If:

(a) a person provides security for the accused’s bail under a bail undertaking or third party security undertaking; and

(b) the accused’s bail order ceases to have effect; and

(c) if section 58GC applies - the continuation of the undertaking to provide the security ceases under subsection 58GC(3); and

(d) the Court holds the security solely because of the undertaking;

the Court must return the security to the person.

Note: The money or property will not be returned if it was forfeited under Division 4 or is being held as security in relation to another bail order.

Division 6 - Other matters

58HA Admissibility of certain matters

(1) Each of the following documents is to be received in all courts and proceedings as prima facie evidence of their contents:

(a) a bail order;

(b) a bail undertaking;

(c) a third party security undertaking;

(d) a notice referred to in subparagraph 58DE(2)(a)(ii) (about change of address) given by the accused to the Court.

(2) A copy, certified by an officer of the Court, of a document referred to in subsection (1) is admissible in evidence in all courts and proceedings without further proof or production of the original.

Note: This means that a certified copy is to be received in all courts and proceedings as prima facie evidence of the original’s contents.

(3) An officer of the Court may issue a written certificate stating that:

(a) a condition specified in a bail order:

(i) has not been varied; or

(ii) has been varied in a specified way; or

(b) a notice was given under subsection 58FB(2) to a specified person in a specified way on a specified day; or

(c) the accused did not appear in person before the Court:

(i) at a specified place; or

(ii) on a specified day or during a specified period; or

(d) the accused did not notify the Court of a change in the accused’s residential address; or

(e) the accused notified the Court of a change in the accused’s residential address:

(i) to a specified address; and

(ii) on a specified day.

(4) The certificate is to be received in all courts and proceedings as prima facie evidence of the statements in the certificate.

(5) A document purporting to be a certificate under subsection (3) is taken to be such a certificate and to have been duly given, unless the contrary is established.

58HB Indemnifying a person providing security

(1) A person commits an offence if:

(a) the person signs a bail undertaking, or a third party security undertaking, to provide security as a condition of bail; and

(b) the person agrees to be indemnified by another person against any forfeiture under this Part of that security.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if the person agrees to indemnify another person against any forfeiture under this Part of security provided by that other person as a condition of bail.

Penalty: Imprisonment for 2 years.