3. Definitions

3. Definitions

In this Act-

accused means a person who-

(a) is charged with an offence; or

(b) is directed under section 415 to be tried for perjury;

appeal includes application for leave to appeal;

appeal period means the period permitted by or under this Act or any other Act for commencing an appeal under Part 6.3 or, if a notice of appeal or notice of application for leave to appeal under Part 6.3 is filed within that period, the determination of the appeal;

appear, in relation to a party, has the meaning given in section 328; appellant includes an applicant for leave to appeal; appropriate registrar means-

(a) the registrar at the venue of the Magistrates' Court referred to in
section 11; or

(b) if an order is made under section 31, the registrar at the venue of
the Magistrates' Court at which the hearing is to be held;

arraignment has the meaning given in section 215(1);

attend, in relation to a person, means be physically present in court or, if authorised to do so under Division 2 or 3 of Part IIA of the Evidence Act 1958, appear or be brought before the court by audio visual link;

cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;

commencement of trial, in relation to the Supreme Court or the County Court, has the meaning given in section 210;

compulsory examination hearing means a hearing under section 106;

contest mention hearing means a hearing under section 55;

conviction, in Chapters 6, includes a finding of
guilt by a court, whether or not a conviction is recorded;

corporate accused means an accused that is a body corporate; criminal record, in relation to a person, means a document that-

(a) sets out all previous convictions of the person alleged by the prosecution; and

(b)complies with section 77 or 244, as the case requires;

Crown Prosecutor means the Chief Crown Prosecutor, a Senior Crown Prosecutor or a Crown Prosecutor appointed under the Public Prosecutions Act 1994;

depositions means the transcript of evidence given in a committal proceeding and any statements admitted in evidence in a committal proceeding in accordance with Chapter 4;

direct indictment means an indictment filed against an accused who has not been committed for trial in respect of the offence charged in the indictment or a related offence; DPP means the Director of Public Prosecutions for Victoria;

evidence in support of alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

filing hearing means a hearing referred to in section 101; full brief means a full brief described in section 41;

hand-up brief means a hand-up brief described in section 110; in detention means-

(a) in a prison in the legal custody of the Secretary to the Department of Justice; or

(b) in custody in a police gaol in the legal custody of the Chief Commissioner of Police; or

(c) detained in an approved mental health service within the meaning of
the Mental Health Act 1986 in the legal custody of the authorised
psychiatrist of the approved mental health service; or

(d) in custody in a remand centre, youth residential centre or youth
justice centre within the meaning of the Children, Youth and Families Act 2005 in the legal custody of the Secretary to the Department of Human Services; or

(e) in custody in a residential institution or a residential treatment
facility within the meaning of the Disability Act 2006 in the legal
custody of the Secretary to the Department of Human Services;

indictable offence that may be heard and determined summarily means an offence to which section 28(1) applies; informant means a person who commences a criminal proceeding in the Magistrates' Court;

infringements registrar has the same meaning as in the
Infringements Act 2006;

interlocutory appeal means an appeal under Division 4 of Part 6.3;

interlocutory decision means a decision made by a trial judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding;

Juries Commissioner has the same meaning as in the Juries Act 2000;

legal practitioner means-

(a) an Australian legal practitioner within the meaning of the Legal Profession Act 2004; or

(b) a person referred to in section 2.2.2(2)(g) of the Legal Profession Act 2004 who engages in legal practice in that capacity;

mention hearing means a hearing referred to in section 53;

notice to appear means a notice served under section 21;

ordinary service means service in accordance with section 394;

original jurisdiction includes-

(a) a proceeding for an indictable offence; and

(b) a proceeding for a related summary offence heard under section 242; and

(c) a proceeding for an unrelated summary offence heard under section 243;
and

(d) a proceeding for contempt of court; and

(e) a proceeding for variation or breach of a sentencing order under the Sentencing Act 1991;

originating court means the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction;

personal service means service in accordance with section 391;

plea brief means a plea brief described in section 117; police gaol has the same meaning as in the Corrections Act 1986;

preliminary brief means a preliminary brief described in
section 37;

previous conviction means a prior conviction or finding of guilt by a court (whether in or out of Victoria) but does not include-

(a) a conviction or finding of guilt set aside by the Magistrates' Court under section 92; or

(b) a conviction or finding of guilt set aside by the County Court under
section 256; or

(c) a conviction or finding of guilt set aside by the Court of Appeal under section 277; or

(d) a conviction or finding of guilt by a children's court (whether in or out of Victoria) made more than 10 years before the hearing at which it is sought to be proved; prison has the same meaning as in the Corrections Act 1986;

proceeding, in relation to the Magistrates' Court, includes a committal proceeding but does not include the exercise by a registrar of the Magistrates' Court of any jurisdiction, power or authority vested in the registrar as infringements registrar;

public official means-

(a) a public official within the meaning of the
Public Administration Act 2004; or

(b) a person employed by, or the holder of an office in, or on the
governing body of a Council within the meaning of the Local Government Act 1989; or

(c) in the case of a charge for an offence referred to in section 24(1) of
the Prevention of Cruelty to Animals Act 1986, a full-time officer of
the Royal Society for the Prevention of Cruelty to Animals authorised
under section 24(1)(b) of that Act;

related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character;

related summary offence means a summary offence the proceedings for which are transferred from the Magistrates' Court under section 145;

responsible person, in relation to a person in detention, means-

case of a prison, the officer in charge of the prison;

(b) in the case of a police gaol, the Chief Commissioner of Police;

(c) in the case of an approved mental health service within the meaning of
the Mental Health Act 1986, the authorised psychiatrist of the
approved mental health service;

(d) in the case of a remand centre, youth residential centre or youth
justice centre within the meaning of the Children, Youth and Families Act 2005, the Secretary to the Department of Human Services;

(e) in the case of a residential institution or a residential treatment
facility within the meaning of the Disability Act 2006, the Secretary
to the Department of Human Services;

return date, in relation to a criminal proceeding in the Magistrates' Court, means the first date on which the proceeding is listed before the court;

sentence includes-

(a) the recording of a conviction; and

(b) an order made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991,
other than an order incidental to or preparatory to the making of the
order; and

(c) an order made under section 11 of the Sex Offenders Registration Act 2004; and

(d) an order made under section 84S or 84T of the Road Safety Act 1986;
and

(e) an order made under section 365, 367, 373, 380 or 387 of the Children, Youth and Families Act 2005 made by the Supreme Court in its original jurisdiction or the County Court in its original jurisdiction;

Note Section 586 of the Children, Youth and Families Act 2005 gives the Supreme Court and the County Court, when sentencing a child for an indictable offence, to impose any sentence which the Children's Court may make.

sexual offence means-

(a) an offence under Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment; or

(b) an attempt to commit an offence referred to in paragraph (a); or

(c) an assault with intent to commit an offence referred to in paragraph

a,

special hearing means a hearing conducted under section 370;

summary case conference means a conference referred to in section 54;

summary hearing means a hearing conducted in accordance with Part 3.3;

trial judge means the judge of the Trial Division of the
Supreme Court or the judge of the County Court before whom an accused
is tried;

Victoria Legal Aid means Victoria Legal Aid established
under section 3 of the Legal Aid Act 1978;

youth justice centre means a youth justice centre established under section 478 of the Children, Youth and Families Act 2005.

The definition of accused was amended by s 3 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 as a result of the re-numbering required by the amending legislation. These sorts of minor amendments are reflected throughout the legislation, but will not be the cause of further commentary.

Use of the term accused creates a departure from other states' UEA which continues to use the term defendant to refer to the subject of criminal charges. The term defendant is intended to be used in the Victorian jurisdiction to refer to the subject of civil actions only.

The definition of attend was amended by s 69 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. The distinction between appearances and attendances continues to generate confusion, not least because references to 'attendance' often use the word 'appear' as though it were synonymous.

The Criminal Procedure Act 2009 distinguishes between attendance (which requires the accused to be phycially present) and appearances (which allow the accused to be represented before the court by a legal practitioner). The issue is provided for at ss 328 and 330.

The Act creates a presumption in favour of appearance, but requires attendance where the accused is on bail or remanded, or where the hearing is a trial, committal or contest mention. Courts are granted the flexibility to require (with reasonable notice) attendance where appearances would usually suffice, and to grant leave (in certain circumstances) to appear where an attendance would usually be required.

A flowchart to these processes is provided at p 21 of the Criminal Procedure 2009 Legislative Guide.

Reference to appropriate registrar carries over from s 3 of the Magistrates' Court Act 1989 and refers to what was then known as the proper venue. The Criminal Procedure Act replaces this term with the place of hearing at s 11, which is far more lenient in its approach to jurisdictional issues. The nearest sitting of the Magistrates' Court to a particular suburb can be discovered using a software program on the Magistrates' Court of Victoria website created for that purpose.

The defintion of contest mention hearing is new. The provision at s 55 itself was transferred and re-enacted from its previous location at clause 3A of Schedule 2 of the Magistrates' Court Act 1989.

The definition of conviction was amended by s 3 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 to remove reference to Chapter 8.

The definition of evidence in support of alibi was inserted by s 3 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009.

The definition of informant is consistent with that previously existing in the Magistrates' Court 1989. The Criminal Procedure Act 2009 Legislative Guide provides:

A large number of sections in the Act refer to the informant by giving the informant certain obligations (e.g. to disclose material) or rights (e.g. to refuse to disclose material on certain grounds under section 45).

However, it is important to note that only a small number of sections require the informant to do something personally. The primary example is section 12 which requires an informant to apply personally for a warrant to arrest. As a result, there is nothing preventing steps being taken by another person on behalf of the informant in accordance with ordinary principles of agency. This is particularly relevant for police cases where the day to day conduct of a prosecution is increasingly managed by police prosecutors. The Act does not prevent this from occurring. The steps which can be taken on behalf of an informant include serving or receiving documents, withdrawing charges or negotiating on summaries.

An exception to this broad agency approach is made in relation to who may appear on behalf of an informant in court where section 328(c) recognises the role of police prosecutors explicitly. This is necessary because ordinary agency principles do not extend to an entitlement to appear on behalf of another person in court.

The definition of notice to appear was inserted by s 3 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 as being found at s 21.

The definition of prison officer has been repealed by s 3 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009.