Victorian Current Acts Victorian Current ActsAfter Division 4 of Part 5.5 of the Criminal Procedure Act 2009 insert —
(1) At any time before trial of an accused for an offence allegedly committed at 12 or 13 years of age, the court may order that the issue of whether the presumption against criminal responsibility is rebutted be determined by a judge alone, without a jury, if—
(a) the offence is an indictable offence under an Act; and
(b) the charge for the offence will not be heard and determined summarily; and
(c) the court is satisfied that the accused has obtained legal advice on the effect of the issue being determined by a judge alone, without a jury, before the trial of the accused; and
(d) the court considers that it is in the interests of justice to determine the issue before the trial of the accused.
(2) The court may make an order under subsection (1) on the application of the accused.
(3) If the accused intends to raise the issue of whether the presumption against criminal responsibility is rebutted before trial, the accused must give notice to the court and the prosecution in accordance with section 200.
(4) In determining whether to make an order under subsection (1), the court is to have regard to the submissions, if any, of the prosecution and the accused.
(5) The court may make an order under subsection (1) whether or not the prosecution consents to the making of the order.
(6) Subsection (1) applies despite sections 181, 183 and 184.
(7) To avoid doubt, this section does not limit the application of section 199(1) in relation to any other issue that the court considers appropriate to hear and decide before a trial.
A pre-trial determination of the issue of whether the presumption against criminal responsibility is rebutted must be conducted at the earliest possible opportunity before the arraignment of a person accused of committing an offence at 12 or 13 years of age.
(1) Despite section 201, if a court is determining the issue of whether the presumption against criminal responsibility is rebutted before the trial of the accused, the court is to conduct an oral hearing to determine the issue.
(2) On the application of the accused, the court may excuse the accused from attending the hearing if—
(a) the accused is a child; and
(b) the court is satisfied that it is in the interests of justice to conduct the hearing without the attendance of the accused.
(3) For the purposes of subsection (2), in determining whether it is in the interests of justice, the court is to have regard to—
(a) the right of an accused to a fair hearing; and
(b) any information from the prosecution and the accused about the nature of any evidence that is proposed to be adduced; and
(c) whether the prosecution consents to the determination of the issue without the attendance of the accused.
Despite section 203, as far as practicable, in the trial of a person who is accused of committing an offence at 12 or 13 years of age, the court is to be constituted by the same judge who constitutes the court in the pre-trial hearing of the issue of whether the presumption against criminal responsibility is rebutted.
(1) At a pre-trial hearing of the issue of whether the presumption against criminal responsibility is rebutted in respect of a charge for an offence, the court—
(a) may determine that the prosecution has not rebutted the presumption and direct that an entry of not guilty be made on the record in respect of the charge; or
(b) may determine that the prosecution has rebutted the presumption and order that the matter proceed to trial or to the determination of other pre-trial issues (as the case requires).
(2) An entry of not guilty under subsection (1)(a) has the same effect as if it were the verdict of a jury on the trial of the accused on the charge.
(3) A determination under subsection (1)(b) has the same effect as if it had been made after the commencement of the trial of the accused on the charge.
In a pre-trial hearing of the issue of whether the presumption against criminal responsibility is rebutted, the reasons for judgment or decision must include—
(a) the principles of law applied by the court; and
(b) the facts on which the court relied.
(1) In a pre-trial hearing of the issue of whether the presumption against criminal responsibility is rebutted, the court, if satisfied that it is in the public interest to do so, may order that any of the following must not be published except in the manner and to the extent (if any) specified in the order—
(a) a report of the whole or any part of the hearing;
(b) evidence given in the pre-trial hearing;
(c) the content of any report or other document put before the court in the pre-trial hearing;
(d) information that might enable an accused or any person who has appeared or given evidence in the pre-trial hearing to be identified.
(2) An order under this section may be made—
(a) on the application of a party or on the court's own motion; and
(b) at any time, including at the time an order is made under section 206A(1).
(3) A person must not publish or cause to be published any material in contravention of an order under this section.
Penalty: in the case of an individual, Level 6 imprisonment (5 years maximum);
in the case of a body corporate, 3000 penalty units.".