Supplementary Order Paper No 286

No 286

House of Representatives

Supplementary Order Paper

Thursday, 29 September 2011

Criminal Procedure (Reform and Modernisation) Bill


Proposed amendments

Charles Chauvel, in Committee, to move the following amendments:

New clause 25A

To insert the following clause after clause 25 (after line 25 on page 45):

25A Summons following arrest
  • (1) Where any person, who has been arrested without warrant and who is charged with a Category 1 or Category 2 offence, cannot be practicably be brought immediately before a court, any constable may, if he deems it prudent to do so, release the defendant without bail to appear on summons to answer the charge.

    (2) Every constable who releases a defendant under this section shall, at the time of the release of the defendant, sign and serve on the defendant a summons in a form prescribed for the purposes of this section. Every such summons shall require the defendant to appear on a day not later than 2 months after the date thereof at the Court where the information required by subsection (3) of this section is to be filed.

    (3) The summons must contain—

    • (a) the particulars of the defendant:

    • (b) the particular of the charge:

    • (c) the court and date and time at which the defendant is required to appear:

    • (d) any other information required by rules of court.

    (4) An information under this Part of this Act in respect of the offence with which the defendant is charged shall be laid and filed by a constable as soon as practicable after the release of the defendant, and in any event not later than 7 days after the day on which the defendant is released.

    (5) It shall be the duty of every constable who releases a defendant under this section to ensure that the information required by subsection (3) of this section is laid and filed.

    (6) A copy of the summons served under subsection (2) of this section shall be filed with the information. That copy shall bear an endorsement showing the fact, time, and mode of service and that endorsement shall be signed by the constable who released the defendant.

To omit clauses 26 to 28 (line 27 on page 45 to line 32 on page 46) and substitute the following clauses:

26 Summons following evidential breath test
  • (1) If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive, but the person who underwent the test does not advise an enforcement officer within 10 minutes of being advised of the matters specified in section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test, an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.

    (2) Every such summons shall require the person to appear on a day not later than 2 months after the date of the summons at the Court where the information required by subsection (3) of this section is to be filed.

    (3) The summons must contain—

    • (a) the particulars of the defendant:

    • (b) the particular of the charge:

    • (c) the court and date and time at which the defendant is required to appear:

    • (d) any other information required by rules of court.

    (4) An information under this Part of this Act in respect of the offence with which the person is charged shall be laid and filed by an enforcement officer as soon as practicable after the evidential breath test was administered, and in any event not later than 7 days after the day the test was administered.

    (5) It is the duty of every enforcement officer who issues a summons under this section to ensure that the information required by subsection (3) of this section is laid and filed.

    (6) A copy of a summons served under this section shall be filed with the information, and the copy shall bear an endorsement, signed by the enforcement officer who issued the summons, showing the fact, time, and mode of service.

    (7) In this section, the term enforcement officer [[has the same meaning as it has in section 2(1) of the Land Transport Act 1998.

Clause 35

To omit subclause (1) (lines 14 to 18 on page 53) and substitute the following subclause:

  • (1) If the defendant has not pleaded to a charge under section 33 or 34, the court may require a defendant to plead if the court is satisfied that the defendant has received initial disclosure in accordance with section 12(1) of the Criminal Disclosure Act 2008, and also the defendant or his or her counsel (if the defendant is represented), had no less than 21 days to consider the disclosure.

Heading to clause 58

To omit “indication” (line 23 on page 67) and substitute “undertaking”.

Clause 58

To omit “indication” and substitute “undertaking” wherever it occurs.

To omit “be likely to” (line 28 on page 67).

To omit paragraphs (a) and (b) (line 30 to line 33 on page 67).

Heading to clause 59

To omit “indication” (line 4 on page 68) and substitute “undertaking”.

Clause 59

To omit “indication” and substitute “undertaking” wherever it occurs.

Heading to clause 60

To omit “indication” (line 23 on page 68) and substitute “undertaking”.

Clause 60

To omit “indication” (line 24 on page 68) and substitute “undertaking”.

To omit “may” (line 25 on page 68) and substitute “must”.

Clause 60(1A)

To omit this subclause (line 28 to line 36 on page 68).

Heading to clause 61

To omit “indication” (line 8 on page 69) and substitute “undertaking”.

Clause 61(1)

To omit “indication” and substitute “undertaking” wherever it occurs.

Heading to clause 62

To omit “indication” (line 20 on page 69) and substitute “undertaking”.

Clause 62(a)

To omit this paragraph (line 22 on page 69).

Clause 62(b)

To omit “5 working days” (line 23 on page 69) and substitute “21 working days”.

To omit “indication” (line 24 on page 69) and substitute “undertaking”.

Heading to clause 63

To omit “indication” (line 27 on page 69) and substitute “undertaking”.

Clause 105(5)

To omit this subclause (line 10 to 13 on page 97) and substitute the following subclause:

  • (5) Unless the Court directs otherwise the parties may address the Court on both the evidence and the law.

Clause 105(6)

To omit “despite subsection 5, the” (line 14 on page 98) and substitute “The”.

Heading to clause 122

To omit “indication” (line 13 on page 107) and substitute “undertaking”.

Clause 122

To omit “indication” and substitute “undertaking” wherever it occurs.

Clause 122(2)

To omit “the judicial officers that gave it” (lines 18 and 19 on page 107) and substitute “the court”.

Clause 122(2)(a)

To omit “indication” (line 19 on page 107) and substitute “undertaking”.

Clause 122(2)(b)

To omit “judicial officer” (line 21 on page 107) and substitute “the court”.

Clause 122(3)

To omit this subclause (lines 23 and 24 on page 107).

Clause 128

To omit this clause (line 7 on page 112 to line 18 on page 113) and substitute the following clauses:

128 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing
  • (1) This section applies to any hearing, other than a trial or a sentencing hearing, if—

    • (a) the offence charged is a category 2, 3, or 4 offence; and

    • (b) a not guilty plea has been entered to the offence charged; and

    • (c) the defendant is required, under section 125, to be present at the hearing; and

    • (d) the prosecutor attends the hearing, but the defendant does not.

    (2) When this section applies, the court may do either or both of the following:

    • (a) proceed in the absence of the defendant:

    • (b) issue a warrant to arrest the defendant and bring him or her before the court.

    (3) Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

    (4) Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:

    • (a) any information available to the court about the reasons for the defendant’s absence:

    • (b) any issues that the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues:

    • (c) the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

    • (d) the nature and seriousness of the offence:

    • (e) the interests of any co-defendant.

    (5) If the hearing is in front of a Registrar under section 55(4), the Registrar may—

    • (a) proceed with the hearing in the absence of the defendant; or

    • (b) issue a warrant to arrest the defendant and bring him or her before the court.

128AA Non-attendance of defendant at trial for offence in category 2, 3, or 4
  • (1) This section applies to any trial if—

    • (a) the offence charged is a category 2, 3, or 4 offence; and

    • (b) the defendant is required, under section 125, to be present at the trial; and

    • (c) the prosecutor attends the trial, but the defendant does not.

    (2) If the court is satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court must not proceed with the trial unless it is satisfied that the defendant will not be prejudiced by his or her absence and the defendant consents.

    (3) If the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, the court may do either or both of the following:

    • (a) proceed with the trial in the absence of the defendant:

    • (b) issue a warrant to arrest the defendant and bring him or her before the court.

    (4) Despite subsection (3), the court must not proceed with the trial in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

    (5) Without limiting the matters the court may consider in making its decision under subsection (4), the court must consider the matters set out in section 128(4).

New clause 176A

To insert the following clause after clause 176 (after line 32 on page 152):

176A Prosecution Adjournment during Hearing
  • The Court must not allow the prosecution an adjournment after a hearing to determine the defendant’ guilt or innocence has commenced—

    • (a) to bring new evidence, if the need for such evidence was reasonably foreseeable; or

    • (b) to correct any deficiency in the admissibility of its evidence, if the inadmissibility was reasonably foreseeable.

Clause 361(1) and (2)

To omit these subclauses (lines 18 to 31 on page 251) and substitute the following subclauses:

  • (1) In this section and section 378,—

    costs order means an order under subsection (2)

    procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act

    prosecution—

    • (a) means any proceedings commenced by the filing of a charging document; but

    • (b) does not include an appeal.

  • (2) A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is exceptional and intentional and there is no reasonable excuse for that failure.


Explanatory note

This Supplementary Order Paper will further clarify the Criminal Procedure (Reform and Modernisation) Bill to better protect the Rule of Law while achieving the Bill’s overall aim of reducing litigation, cost and delay in our criminal justice system.

Clause 25A inserts a procedure modelled on S19A and 19B of the Summary Proceedings Act to provide for an on the spot summons procedure to apply in certain limited circumstances.

Clause 26 omits clauses 26 to 28 and inserts a new clause 26 which clarifies the procedure to be followed following an evidential breath test.

Clause 35 ensures that the defendant is not required to plead unless the defendant has had at least 21 days to consider material obtained under disclosure from the Crown. This is likely to reduce litigation events by reducing the number of tactical not guilty pleas entered.

Clauses 58 to 63: to ensure greater certainty and efficiency, the word indication is substituted for the word “undertaking”. This will put current practice on a statutory footing.

Clause 105(5) modernises the law as to when the court may be addressed on evidential issues.

Additions to clause 128 will further confine the circumstances under which trial and sentencing can continue in the absence of the defendant. This is to ensure that the court may not proceed in the absence of the defendant when a reasonable excuse for the defendant's absence exists.

Clause 176A will prevent the prosecution from offering new evidence or correct deficiencies where earlier offering or correction was reasonably foreseeable.

Clauses 361(1) and 361(2) restricts the circumstances in which a costs order against a defendant or the defendant’s counsel may be made to cases where a failure is exceptional and intentional, and done without reasonable excuse.