Chapter 5
Trial on Indictment
,162 | Criminal Procedure Act 2009 – Legislative Guide
Chapter 5 – Trial on
Indictment
Chapter Overview
Chapter 5 regulates the procedures for all jury trials Trial on Indictment
under the following Parts:
Part 5.1 – Introduction
Part 5.2 – Indictment and Place of Trial
Part 5.3 – Notifying Accused of Indictment
Part 5.4 – Discontinuing a Prosecution
Part 5.5 – Pre-trial Procedure
Part 5.6 – Sentence Indication
Part 5.7 – Trial
Part 5.8 – General
Important definitions (found in section 3) related to this
Chapter include: arraignment, direct indictment,
commencement of trial and trial judge.
The Act also allows for interlocutory appeals to be taken
before or during trial on important points of law, evidence
and procedure. The procedures for interlocutory appeals
are in Part 6.3, commencing at section 295.
Important general powers relevant to trial procedures
(e.g. the power to adjourn proceedings and the power
to issue warrants) are in Chapter 8. In particular, many
of the special rules relating to the giving of evidence by
witnesses in sexual offence cases contained in Part 8.2,
apply to trials.
The following flowchart gives an overview of the
processes that the Chapter creates, including links
through to other relevant parts of the Act (e.g.
interlocutory appeals).
LEGEND:
Court responsibility
Accused responsibility
Optional process
, Chapter 5 | 163
Discontinuing a Committal proceeding
prosecution Chapter 4
Part 5.4
Arraignment File and serve
indictment
Parts 5.2 and 5.3
Not guilty or no plea Guilty plea
Pre-trial procedure
Part 5.5
Interlocutory appeal Sentence indication
Part 6.3 Part 5.6
Trial procedure
Part 5.7
Determine related Found not guilty or
and unrelated acquitted
summary offences
Part 5.8
Sentencing hearing
Indictable appeal
process
Chapter 6
, 164 | Criminal Procedure Act 2009 – Legislative Guide
Legislative History Contrary to the position of both parties, the court
held that the proceeding had commenced when the
Many provisions in Chapter 5 are based on provisions
presentment was filed. It further held that, on a retrial,
from the Crimes Act 1958 and the Crimes (Criminal
a new proceeding commenced with the filing of a
Trials) Act 1999.
new presentment. The reasoning applies to any new
presentment filed, whether as a result of a severance or
Relevant Rules/Regulations/Forms
by filing over.
Not applicable.
To clarify this issue section 5 of the Act provides that a
criminal proceeding is commenced by filing a charge-
Discussion
sheet in the Magistrates’ Court, by filing a direct
Trial procedure has traditionally been a mixture of indictment, or by a court direction that a person be tried
common law and legislation. Typically, legislation for perjury. The filing of an indictment that is not a direct
developed to overcome specific problems with the indictment (i.e. where the accused was committed
common law. As a result, the range of statutory provisions for trial on a charge in the indictment or for any related
in force immediately before the Act commenced was offence) will not commence proceedings; it will simply
neither complete nor particularly consistent. Without enliven proceedings that already exist.
attempting to be a code, Chapter 5 is structured so as
Before Taylor (No. 2), this approach was consistent with
to walk the reader through the trial process in a basic
the generally held view of the status of proceedings
chronological order starting with committal for trial and
where an indictment is filed after a committal for trial, as
finishing with sentencing after a jury verdict. The Chapter
acknowledged in Taylor (No. 2) citing R v Kelly [1921]
is designed to continue to operate alongside existing
VLR 489 (FC), at paragraph 17.
common law and fair trial principles.
The approach in Taylor (No. 2) also creates a difficult gap
The Chapter applies to trials in both the County Court
between committal for trial and the filing of the indictment.
and the Trial Division of the Supreme Court. Differences
It tends to suggest that no court is seized of the matter
in procedure and practice between those two courts
during that time as there is no underlying proceeding.
are usually reflected in practice directions. This Chapter
incorporates provisions from the Crimes Act 1958 and Such a gap causes difficulties for several reasons:
the whole of the Crimes (Criminal Trials) Act 1999.
• It is inconsistent with the approach that the Act takes
However, those processes have been amended and
of viewing criminal procedure as one process.
adapted in order to create a coherent regime. See the
Ready Reckoner Previous Law to Criminal Procedure • It does not sit easily with the fact that the accused has
Act 2009 which identifies what has happened to the been committed to a particular court for trial and will
substance of each relevant provision in those Acts. be on bail (or in custody) to appear in that court.
Overall, the Act takes the approach that there is one • It creates conceptual and practical difficulties for
criminal proceeding and the jurisdiction of an individual the court in dealing with matters during that period
court will be enlivened at different times during that such as pre-trial issues, sentence indications and
proceeding. This means that in indictable proceedings, directions hearings.
the filing of an indictment (previously known as a
The court in Taylor (No. 2) also relied on section 4(4)
‘presentment’) does not formally commence proceedings
of the Crimes (Criminal Trials) Act 1999, upon which
where there has been a committal for trial, but does
section 164 of this Act is based, and provided that, on
commence proceedings where there has been no
the filing of a new presentment, the ‘proceedings’ on the
committal for trial (i.e. a direct indictment, as defined in
previous presentment are stayed. The Court of Appeal
section 3).
considered that section 4(4) meant that each indictment
The issue of when a criminal proceeding commences was represented the termination of the old proceeding and
highlighted by a recent decision of the Court of Appeal the commencement of a new one.
in R v Taylor (No. 2) [2008] VSCA 57 (Taylor (No. 2)),
However, the Act treats criminal procedure as one
which concerned the interpretation of the phrase “any
process. Consistent with this approach, the filing of a first
proceeding that commences” in section 607 of the Crimes
indictment after committal or a subsequent indictment
Act 1958. The essential question was whether, in relation
(whether by way of filing over or otherwise), will represent
to a jury trial, the proceeding commenced on the filing of
a step in an existing criminal proceeding, rather than the
the presentment or with the filing of the initial charges in
commencement of a new one.
the Magistrates’ Court.
In order to clarify this, the Chapter:
• expressly applies when either an accused is committed
for trial or a direct indictment is filed (see section 158)
