The balance of the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 commenced operation on 18 March 2012, notified in Gazette S66 of 6 March 2012. These are the amendments that occur as a result.

(Right now, the Austlii version of the Criminal Procedure Act is not up-to-date — as another example of why we should be careful before relying on Austlii for practice and in-court use. I’ve sent a message to the Austlii web masters, and if they’re true to their usual form, they’ll probably update it very quickly. Till then…caveat emptor.)

Criminal records

The definition of criminal record in s 3 is now:

criminal record, in relation to a person, means a document that—

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

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

Infringement conviction is newly-defined in s 3 as:

infringement conviction means an infringement notice that has taken effect as a conviction of the offence specified in the notice

Infringement notices that can take effect as convictions are listed in Road Safety Act 1986 s 89A:

• drink-driving infringements (first-offences contrary to s 49(1)(b), (f) or (g) for less than 0.15%)
• drug-driving infringements (first offences contrary to s 49(1)(bb), (h) or (i))
• excessive-speed infringements (130 km/h or more, or 25 km/h over the permitted speed)

Other infringements do not take effect as convictions because of Infringements Act 2006 s 33. These include infringements for offences contrary to:

• Crimes Act 1958 s 74A (shop theft)
• Summary Offences Act 1966 s 6 (disobey direction to move on)
• Summary Offences Act 1966 s 9 (wilful damage)
• Summary Offences Act 1966 s 13 (public drunkeness)
• Summary Offences Act 1966 s 14 (drunk and disorderly)
• Summary Offences Act 1966 s 17A (disorderly behaviour in public)
• Summary Offences Act 1966 s 18 (offensive behaviour in a motor vehicle in a declared area aka gutter crawling)

It seems this changed meaning of criminal record will only apply to an accused: sections 43(1)(e), 119(e)(iii) and 187 still refer only to previous convictions of any witness the prosecution proposes to call. However, contrary to what the OPP sometimes maintains in summary proceedings, there is no cause to read previous convictions as not applying to traffic offences. I’ve never heard this issue arise with police prosecutors, who sensibly accept that relevant traffic matters fall within the meaning of previous conviction, defined in s 3:

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;

Note also that the Act distinguishes between convictions and infringements convictions, even though both may be contained in a criminal record: note to ss 77(1), 244(1).

Pre-hearing disclosure tinkering

A new s 53A has been inserted into the Act, requiring the police to have a copy of the brief available for the accused at a Magistrates’ Court at the first return of the charges.

53A Documents to be provided by police at first mention hearing

(1) This section applies if the informant is a member of the police force.

(2) At the first mention hearing, the informant must have the following documents available for provision to the accused or the legal practitioner representing the accused—

(a) a copy of the preliminary brief (if prepared);

(b) a copy of the full brief (if prepared);

(c) if neither a preliminary brief nor a full brief has been prepared—

(i) a copy of the charge-sheet in respect of the alleged offence; and

(ii) a statement of the alleged facts on which the charge is based; and

(iii) either—

(A) a copy of the criminal record of the accused that is available at the time of the first mention hearing; or

(B) a statement that the accused has no previous convictions or infringement convictions known at that time.

(3) This section does not apply to a proceeding for—

(a) an offence under the Road Safety Act 1986 or regulations or rules under that Act that is detected by a road safety camera, a speed detector or a process prescribed for the purposes of that Act; or

(b) an offence under the Melbourne City Link Act 1995 that is detected by a tolling device or a process prescribed for the purposes of Part 4 of that Act; or

(c) an offence under the EastLink Project Act 2004 that is detected by a tolling device or a process prescribed for the purposes of Part 9 of that Act.

One lawyer expressed concern that this development was intended to put off disclosure until at least the first mention. It seems though that police intend it to be used in addition to the current system of disclosure, and the explanatory memorandum suggests likewise.

However, I can say from personal experience that the police culture remains largely unaware of the new disclosure regime, with many police firmly wedded to the old Magistrates’ Court Act processes. (To be fair to them, I’ve seen a fair few disclosure requests from solicitors also relying on the old repealed provisions, so it’s not one-sided. Nonetheless, it’s common to have long drawn-out disclosure requests — I’ve had a fair few throughout the state in the last 18 months, and still have a few pending.)

However, s 53A obviously perpetuates some misunderstandings by the police between how they think the process works, and what the legislation actually says: the Act primarily anticipates preliminary briefs when a Notice to Appear is served, although it does permit the informant to serve one as an alternative to a full brief.

But in that case, the accused can simply request a full brief. The police aren’t obliged to comply until 14 days before a contest-mention, or if there’s no contest-mention, a summary hearing. Compounding that is the increasingly-common view at some court venues that every case must go to a summary case conference on a subsequent mention date, with associated delay and cost to the accused, when again, that’s not what the legislation actually says: summary case conferences are only prescribed by the Act if a preliminary brief is served within 7 days of filing a charge-sheet. I know the view of the folks at the steering group (and here also) is that summary case conferences can happen anytime, but it’s not always working that way.

But the biggest problem with s 53A is that it doesn’t address the fundamental problem with the Criminal Procedure Act disclosure process. The system was designed by folks who were dazzled by the large number of cases that resolve as a guilty plea at the Magistrates’ Court.

The most recent stats are in ABS Criminal Justice 2010 – 11 catalogue no. 4513.0 at pages 51 – 2, and esp page 60, which shows in Victoria 74.7% of cases in the Magistrates’ Court resolved as guilty pleas, and the accused was found guilty (pleas, findings and ex parte findings) in 86.1% of cases. That’s an increase since 2009 – 10, at page 63, when 68.6% of accused pleaded guilty, and a total of 79.8% were found guilty.

But that doesn’t mean there was no need for the police to do a full investigation in the cases finalised by guilty pleas, or to not fully disclose their case. In some cases an accused instructs that they are guilty, and that they want to finish their case quickly. But in many cases, they ask for advice. And in those cases, no lawyer worth their salt will advise their client they should plea until they have seen the proposed evidence and properly gauge the strength of the prosecution case as charged. That requires more than a summary of the case with a signature on it. It’s not unreasonable to ask to see what evidence the police rely on when they decide they have a reasonable prospect of obtaining a conviction. And if they don’t have it to hand when they make that decision, then the decision ought not be made until they do have the evidence.

I reckon the solution is prescribed disclosure timelines subject to judicial alteration when required, just as occurs in committal matters. Those timelines should be a bit more generous given the higher volume and relatively lower seriousness of offences determined in the Magistrates’ Court, but they should kick in once the accused is charged. At the very least, s 53A should go further than just requiring provision of briefs “if prepared”, especially given the Act’s promotion of early disclosure (see the legislative guide at pp 57, 69, 72 – 3,