Criminal Amendment (Directions Hearing) Rules 2008

1. Short title

2. Commencement

3. Principal Rules

4. Rule 3 amended (Interpretation)

5. Part 1A inserted

6. Rule 42 amended (Associate to record result of trial, &c.)

7. Legislation rescinded

Schedule 1 - Legislation rescinded

We, the Honourable Peter George Underwood, Officer of the Order of Australia, Chief Justice, the Honourable Ewan Charles Crawford, the Honourable Pierre William Slicer, the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, and the Honourable Shan Tennent, Puisne Judges of the Supreme Court of Tasmania, make the following Rules of Court under the Criminal Code Act 1924.

1. Short title

These Rules of Court may be cited as the Criminal Amendment (Directions Hearing) Rules 2008.

2. Commencement

These Rules of Court take effect on 1 February 2008.

3. Principal Rules

In these Rules of Court, the Criminal Rules 2006 are referred to as the Principal Rules.

4. Rule 3 amended (Interpretation)

Rule 3 of the Principal Rules is amended as follows:

(a) by inserting the following definition after the definition of "Code":

"committal order" means an order committing a defendant to the Court under section 60 of the Justices Act 1959;

(b) by omitting the definition of "Director" and substituting the following definitions:

"Crown Counsel" means a legal practitioner employed in, or instructed by, the Office of the Director;

"Director" means –

(a) the person who is, or who is acting in the office of, the Director of Public Prosecutions pursuant to the Director of Public Prosecutions Act 1973; or

(b) the person who is, or who is acting in the office of, the Director of Public Prosecutions pursuant to the Director of Public Prosecutions Act 1983 of the Commonwealth;

"file" means file in the registry;

"legal practitioner" means a legal practitioner as defined by the Legal Profession Act 1993;

"legal representative" means any legal practitioner or firm of legal practitioners whose name is recorded in the registry under rule 3C as the legal representative of a defendant;

"preliminary proceedings order" means an order of the Court under section 331B of the Code;

(c) by inserting the following definition after the definition of "Registrar":

"registry" means the registry of the Court;

5. Part 1A inserted

After rule 3 of the Principal Rules, the following Part is inserted:

PART 1A - Criminal Directions Hearings

3A. Application and purpose of Part

      (1) This Part applies to a criminal process that is conducted in court and relates to a defendant who is the subject of a committal order or against whom an indictment has been filed.

      (2) The purpose of this Part is to –

(a) ascertain the plea of a defendant early in proceedings; and

(b) eliminate any lapse of time from the committal order to the final determination of a criminal process beyond that reasonably required for its fair and just determination; and

(c) enable all such orders to be made as are necessary to ready and expedite the criminal process leading up to the disposition of a matter.

3B. Notice of instruction to act

A legal practitioner, or firm of legal practitioners, who is instructed or briefed to act for a defendant who is the subject of a committal order, must –

(a) file a notice in writing of that fact; and

(b) deliver a copy of the notice to the relevant Director –

within 7 days of the committal order or, where instructions or the brief to act have been received after the making of the committal order, within 7 days after receipt of such instructions or brief.

3C. Legal representative of defendant

      (1) The name of the legal practitioner, or firm of legal practitioners, filed under rule 3B is the legal representative of the defendant.

      (2) Any document, notice or proceeding required to be delivered under these rules is to be delivered to or by –

(a) the legal representative of the defendant; or

(b) the defendant, if he or she is unrepresented.

3D. Notice of change of instruction to act

      (1) If a legal representative intends to cease acting for a defendant, the legal representative must –

(a) file a notice in writing of that fact; and

(b) deliver a copy of the notice to the Director.

      (2) On the filing of the notice, the legal representative ceases to be the legal representative of the defendant.

3E. If notice of instruction to act not filed

If a defendant has instructed a legal practitioner or firm of legal practitioners to act on his or her behalf but a notice of that fact has not been filed, the practitioner or firm of practitioners is taken to be the legal representative of the defendant.

3F. First appearance in Court following committal order

The first appearance in the Court for a defendant following a committal order is to be a directions hearing.

3G. Conduct of directions hearings

      (1) A judge may do one or more of the following:

(a) direct that a directions hearing be in court or in chambers;

(b) direct that a directions hearing be held by telephone, video link or other means;

(c) give directions as to the manner in which such a hearing is to be conducted and the persons who are to attend it.

      (2) A directions hearing is to be held in court unless otherwise directed by a judge.

      (3) The defendant, his or her legal representative and Crown Counsel must attend the directions hearing and any adjournment of the directions hearing unless otherwise directed by a judge.

      (4) The Chief Justice or his or her delegate may issue practice directions from time to time with respect to the conduct of directions hearings.

3H. Orders that may be made at directions hearings

      (1) Where a defendant has been committed for sentence, a judge may do one or more of the following:

(a) list the defendant for sentencing;

(b) remand the defendant in custody or admit him or her to bail;

(c) make any order necessary or convenient to facilitate the matters referred in paragraphs (a) and (b) or to give effect to any relevant law or legislative instrument.

      (2) Where a defendant has been committed for trial but an indictment has not been filed with respect to him or her, a judge may do one or more of the following:

(a) make a preliminary proceedings order;

(b) remand the defendant in custody or admit him or her to bail to appear before the Court or justices on a specified day;

(c) adjourn the directions hearing;

(d) make any order necessary or convenient to facilitate the matters referred to in paragraphs (a), (b) and (c), to give effect to any relevant law or legislative instrument or to ensure the fair and expeditious conduct of the trial.

      (3) Where a defendant has been committed for trial and an indictment has been filed with respect to him or her, a judge may do one or more of the following:

(a) take a plea from the defendant;

(b) make a preliminary proceedings order;

(c) remand the defendant in custody or admit him or her to bail to appear before the Court or justices on a specified day;

(d) adjourn the directions hearing;

(e) order the delivery by Crown Counsel of written notice identifying the witnesses whom Crown Counsel intends to call at the trial and setting out the evidence proposed to be adduced from each witness;

(f) make any order necessary or convenient to facilitate the matters referred to in paragraphs (a), (b), (c), (d) and (e), to give effect to any relevant law or legislative instrument or to ensure the fair and expeditious conduct of the trial.

      (4) At a directions hearing, a judge may make such inquiries as he or she considers necessary to achieve the purposes of this Part and to achieve the outcomes listed in subrules (1), (2) and (3).

3I. Dispensing with rules

The Court may at any time dispense with compliance with any or all of the provisions in this Part.

6. Rule 42 amended (Associate to record result of trial, &c.)

Rule 42 of the Principal Rules is amended by omitting subrules (1) and (2) and substituting the following subrules:

      (1) On the conclusion of a trial, the associate to the judge is to record particulars of the result of the trial and of any sentence imposed by the Court on, or attach those particulars to –

(a) the original indictment filed in the Court; or

(b) where an accused person has been committed for sentence under the provisions of section 60(1)(a) of the Justices Act 1959, the certified copy of the complaint supplied for the use of the judge.

      (2) When the associate has recorded the particulars specified in subrule (1) in the manner specified in that subrule, the judge is to sign the particulars.

7. Legislation rescinded

The legislation specified in Schedule 1 is rescinded.

SCHEDULE 1 - Legislation rescinded

Rule 7

P. G. UNDERWOOD

Chief Justice

E. C. CRAWFORD

Puisne Judge

P. W. SLICER

Puisne Judge

P. E. EVANS

Puisne Judge

A. M. BLOW

Puisne Judge

S. E. TENNENT

Puisne Judge

Countersigned,

E. A. KNIGHT

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 23 January 2008.

These Rules of Court are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule)

(a) amend the Criminal Rules 2006 by –

(i) making provision in respect of the conduct of criminal directions hearings; and

(ii) providing that particulars of the result of a trial and any sentence imposed by the Supreme Court are to be recorded on, or attached to, the indictment or complaint; and

(iii) removing the requirement for such particulars to be entered in a recording apparatus; and

(b) rescind the Criminal (Case Management) Rules 2001.