So what's important here?

Well, it's all important.

But, if I were on a really tight schedule I would have a look at Chapter 8, under the innocuous-sounding title of General.

What will make the Evidence Act 2008 so difficult for generations of legal students to come is that it's natural, given the title it has been given and the way it has been laid out, to assume that it's a one-stop shop on evidence law. And, come to think of it, that's the way it was sold, too.

Then you get to s 8 of that Act and realise that any contradictory provision in any other act is going to have primacy.

So for that reason alone, dip into s 328 through 389 and see how they modify the existing law.

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389. Audiovisual link evidence from overseas in certain proceedings

389. Audiovisual link evidence from overseas in certain proceedings

(1) This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against section 49A(1) of the Crimes Act 1958.

(2) The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if—

(a) the witness will give the evidence from outside Australia; and

(b) the witness is not an accused in the proceeding; and

(c) the facilities required by subsection (3) are available or can reasonably be made available; and

(d) the court is satisfied that attendance of the witness at the court to give the evidence would—

(i) cause unreasonable expense or inconvenience; or

(ii) cause the witness psychological harm or unreasonable distress; or

(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link.

(3) A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting (the Victorian point) and the place where the evidence is given (the overseas point) are equipped with audiovisual facilities that—

(a) enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and

(b) enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point.

(4) The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence.

(5) An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either—

(a) by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or

(b) at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court.

(6) A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section.

(7) This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies.

(8) Nothing in this section limits the application of this Part to a charge for an offence against section 49A(1) of the Crimes Act 1958.

Section 49A(1) of the Crimes Act is principally directed to prohibiting the facilitation of sex tourism, but may also extend to other offences.

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331. Power to adjourn proceeding

331. Power to adjourn proceeding

(1) A court may adjourn the hearing of a criminal proceeding before the court—

(a) to any time and place; and

(b) for any purpose; and

(c) on any terms as to costs or otherwise—

that it considers appropriate.

(2) If at any time a court adjourns the hearing of a criminal proceeding, the court may—

(a) allow the accused to go at large; or

(b) remand the accused in custody; or

(c) grant the accused bail or extend his or her bail.

Note

See section 333 of this Act and section 5A of the Bail Act 1977 where accused is undergoing a sentence of detention in a youth justice centre.

(3) If a court has adjourned the hearing of a criminal proceeding to a particular time, it may order that the hearing be held or resumed before that time.

(4) A court may only make an order under subsection (3)—

(a) with the consent of all the parties; or

(b) on the application of a party who has given reasonable notice of the application to the other parties.

(5) If a court adjourns a criminal proceeding in which a jury has been sworn, whether or not the accused is present, the court may discharge the jury from giving a verdict and order a new trial.

(6) If a court has adjourned the hearing of a criminal proceeding to a particular time and has remanded the accused in custody, the court may order that the accused be brought at any time before then—

(a) before the court; or

(b) to another place specified in the order where facilities exist to enable the accused to appear before the court by audio visual link (within the meaning of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958)—

in order that the hearing may be held or continued.

(7) The officer in charge of the prison or youth justice centre or other officer who has custody of the accused must obey an order under subsection (6).

The Best Practice Guide was released after the enactment of the Criminal Procedure Act.

[It] was commissioned by the Summary Procedure Steering Group which oversees the implementation and roll out of the changes. It aims to promote common understanding of the legislative framework and provide best practice advice. It is important for criminal law practitioners to appreciate the impact that the changes may have on their practice.

It's hardly comprehensive, but offers the most detail so far of what the powers-that-be have in mind for the summary process. One of the key points seems to be an expectation that the Magistrates' Court will refuse many adjournment applications which would previously have been granted as a matter of course (at page 7):

The Good Adjournment

In Notice to Appear cases a spare copy of the preliminary brief will be available at court on the return date. Therefore, a case can no longer be adjourned because the accused or their legal practitioner does not have a copy of the brief.

It also means that where a summary case conference could not be conducted before court, it can now be conducted at court on the return date. The idea that an accused is entitled to a couple of initial adjournments without question will be a thing of the past. The accused will no longer automatically obtain an adjournment at the counter.

Generally, adjournments should only occur to advance the progress of the case. Good adjournments will be for:

• a plea hearing

• to obtain further disclosure

• to obtain the full brief

• contest mention

• contested hearing.

The Magistrates' Court of Victoria Listing Protocols (updated in January) don't offer much more explanation of this, although they do seem to suggest that adjournments may be shorter than previously granted:

Listing Timeframes

The Court aims to list criminal cases in accordance with the following timeframes:

* Return Date to further mention hearing: 2-4 weeks

* Return Date/second mention hearing to plea: 2-4 weeks

* Return Date to contest mention hearing: 4-8 weeks

* Return Date to hearing (less than 1 Day with Case Conference, if appropriate) but no contest mention: 6-10 weeks

* From contest mention hearing to hearing: 10-14 weeks

The above timeframes do not apply to cases involving persons in custody.

Note: Return Date is the first date on which the proceeding is listed before the Court Proceedings may be adjourned at the discretion of the court. There is no right to an "automatic" adjournment on the first return of a case. One of the case management objectives of the court is to reduce delay.

None of these guidelines are referred to by the Act. How strictly they will be adhered to remains to be seen. It seems likely that, until funding issues for counsel are resolved, the new procedures may prove difficult to comply with.

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329. When accused etc. is required to appear at hearing

329. When accused etc. is required to appear at hearing

(1) An accused must appear at every hearing in the criminal proceeding against the accused, unless otherwise provided by this Act or the rules of court.

(2) A party to an appeal who was the accused in the criminal proceeding to which the appeal relates must appear at every hearing in the appeal, unless otherwise provided by this Act or the rules of court.

(3) The court may excuse a person from appearing at a hearing.

Notes

1 See section 328 for the ways in which an accused may appear.

2 Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 permits the appearance of an accused before the court by audio visual link in certain circumstances.

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