Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
Division 80.1 Preliminary
1 Definitions for o 80
In this order:
"accused person" means a person charged with an indictable offence—
(a) who is committed to the court for trial or sentence; or
(b) for whom an indictment has been filed in the court.
Note For applications in relation to bail, see also the definitions of accused person in the following rules:
• r 4 (Meaning of accused person for div 80.4—bail applications)
• r 14 (Meaning of accused person for div 80.6).
"appearance date"—see rule 18.
"case statement"—see rule 19.
"sentence" means an order, decision or other sentence (however described) imposed by the court on a person—
(a) after the person has been convicted or found guilty; or
(b) after the person has pleaded guilty to an indictable offence under the Magistrates Court Act 1930 , section 90A (7) (Plea of guilty in committal proceedings).
Examples of sentences
1 a reparation order under the Crimes Act 1900 , section 350 (Reparation orders)
2 a person released on conditions under the Crimes Act 1900 , section 403 (Conditional release of offenders)
3 a treatment order under the Drugs of Dependence Act 1989 , section 123 (Treatment orders)
Note An example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Division 80.2 Dispensing with compliance—criminal proceedings
2 Dispensing with compliance with o 80
The court may dispense with compliance with any requirement of this order, before or after the time for compliance arises and on the conditions (if any) the court considers appropriate.
Division 80.3 Application of pt 2 to criminal proceedings
3 Application of civil rules to criminal proceedings
(1) In this rule:
"applied civil rules" means the following:
• order 39 rule 2A (Evidence by telephone etc by consent)
• division 39.2 (Taking evidence at trial from outside ACT by audiovisual link or audio link)
• order 39A (Exhibits, documents and objects)
• division 40.1 (Affidavits generally), other than rule 1
• order 54 (Motions) rules 10 to 15
• order 62 (Seals, filing, searches etc)
• order 63 (Offices of the court)
• order 64 rule 1 (Certain days not reckoned)
• order 64 rule 2 (Time expiring on Sunday or when offices closed)
• order 64 rule 3 (Time not reckoned)
• order 64 rule 4 (Time for proceedings where security ordered)
• order 64 rule 8 (Reckoning of time)
• division 66.1 (Style)
• division 66.2 (Refusal to accept documents for filing), other than order 66 rule 10A (2)
• order 69 (Effect of noncompliance).
(2) The applied civil rules apply to a criminal proceeding as if—
(a) a reference to a proceeding were a reference to a criminal proceeding; and
(b) the reference in order 40 rule 2 (1) (Form of affidavits generally) to form 1.49A were a reference to form 4.1; and
(c) the reference in order 40 rule 4 (3) (Annexures and exhibits) to form 1.49B were a reference to form 4.2; and
(d) the reference in order 40 rule 4 (9) to form 1.49C were a reference to form 4.3; and
(e) any other necessary changes were made.
Division 80.4 Service in criminal proceedings
4 Meaning of accused person for div 80.4—bail applications
In this division:
"accused person" includes—
(a) for an application under the Bail Act 1992 , division 6.2 (Review of decisions by courts)—a person who is an accused person for that division; and
(b) for any other application in relation to bail—a convicted person.
Note See also r 1, def accused person .
5 Application of o 10 to criminal proceedings
Order 10, other than rule 5, rule 6 and rule 15, applies to a criminal proceeding as if—
(a) a reference to a proceeding were a reference to a criminal proceeding; and
(b) a reference to a defendant were a reference to an accused person; and
(c) any other necessary changes were made.
6 Service on accused person by filing if no address for service
(1) This rule applies if an accused person in a criminal proceeding—
(a) is not in custody; and
(b) is not represented by a solicitor.
(2) If the accused person does not have an address for service, a document for which personal service is not necessary may be served on the person by—
(a) filing it; and
(b) sending a copy by prepaid post addressed to the accused person at the person's last-known address.
(3) A document filed under subrule (2) (a) must have endorsed on its first page a statement that it is filed under the paragraph.
7 Service if no-one found at accused person's address for service
(1) This rule applies if—
(a) an accused person in a criminal proceeding—
(i) is not in custody; and
(ii) is not represented by a solicitor; and
(iii) has an address for service; and
(b) no-one can be found at the address.
(2) Any document in the proceeding (including a document for which personal service is otherwise necessary) may be served on the accused person by leaving a copy at the person's address for service.
8 Service of documents when unrepresented accused person in custody
(1) This rule applies if an accused person in a criminal proceeding—
(a) is in custody; and
(b) is not represented by a solicitor.
(2) A document required or permitted to be served by the accused person for the proceeding may be served on the registrar for service by the registrar on another party to the proceeding.
(3) A document required or permitted to be served on the accused person for the proceeding may be served by leaving the document with the person in charge of the place where the accused person is in custody.
(4) If a document mentioned in subrule (3) is served by or on behalf of the registrar, the document may be served—
(a) by sending a copy by prepaid post to the place where the accused person is in custody, addressed to the person in charge of the place; or
(b) if the place has a postbox at a post office—by sending a copy by prepaid post to the postbox, addressed to the person in charge of the place; or
(c) if the place has a fax machine—by sending a copy by fax to the place, addressed to the person in charge of the place; or
(d) if the person in charge of the place has an email address—by sending a copy by electronic communication to the email address.
Division 80.5 Representation in criminal proceedings
9 Definitions for div 80.5
In this division:
"criminal proceeding" does not include an application in relation to bail.
Note See also o 1 r 4, def criminal proceeding .
"solicitor"—to remove any doubt, solicitor includes a firm of solicitors.
10 Notice of solicitor acting
(1) If a solicitor begins acting for an accused person in a criminal matter after the matter becomes a criminal proceeding in the court, the solicitor must, as soon as practicable after, but within 14 days after the day, the solicitor begins acting—
(a) lodge a notice in accordance with form 4.4 for filing; and
(b) serve a copy of the notice on—
(i) the director of public prosecutions; and
(ii) any solicitor who was acting for the accused person immediately before the notice was lodged for filing.
(2) A notice under subrule (1) must contain an address for service.
(3) If a solicitor acts for 2 or more accused people in the same proceeding and at the same time, the solicitor must lodge for filing a single notice under subrule (1) that lists all the people the solicitor acts for in the proceeding.
(4) If a solicitor lodges for filing a notice under subrule (1) in relation to an accused person, the solicitor is taken to act for the accused person until—
(a) another solicitor lodges a notice under subrule (1) for filing in relation to the accused person; or
(b) the solicitor is given leave to withdraw under rule 12, and complies with rule 12 (5).
11 Solicitor's instructions to act for accused person ended
(1) This rule applies to a solicitor if the solicitor's instructions to act for an accused person in a criminal proceeding are ended before the proceeding is finally disposed of in the court.
Note Order 86 r 64 applies to a solicitor if the solicitor's instructions to act for a convicted person who is a party to an application or appeal in the Court of Appeal are ended.
(2) The solicitor must file and serve on each party to the proceeding (including the accused person) written notice that the solicitor is no longer acting for the accused person.
(3) The solicitor must file and serve the notice as soon as practicable after, but within 14 days after the day, the solicitor's instructions are ended.
(4) In this rule:
"accused person" includes a person who has been convicted of an offence and is awaiting sentence for the offence in the court.
Note See also r 1, def accused person .
"court "does not include the Court of Appeal.
12 Withdrawal of solicitor
(1) A solicitor may withdraw from acting for an accused person only with the court's leave.
(2) The application must be made by motion on notice in accordance with form 4.9.
(3) However, if the solicitor wants to withdraw from acting for the accused person during the person's trial or sentence hearing, the application may be made orally to the court.
(4) The notice must—
(a) state the solicitor moving the motion; and
(b) state the date and time when, and place where, the motion is to be made; and
(c) if the court makes an order under subrule (6)—state the terms of the order; and
(d) state briefly the order sought.
(5) A copy of the notice must be served—
(a) on the accused person—
(i) personally; or
(ii) by registered letter addressed to the person's last-known address; or
(iii) if the court orders another way of service—as ordered; and
(b) on the director of public prosecutions.
(6) Unless the court otherwise orders, there must be at least 2 clear days between the day of service of the notice and the day stated in the notice for hearing the motion.
(7) The court may order service of the notice on anyone it considers appropriate.
(8) If the court gives the solicitor leave to withdraw, the solicitor must—
(a) lodge a notice in accordance with form 4.5 (Notice of solicitor ceasing to act) for filing; and
(b) serve a copy of the notice on the accused person personally, or by registered letter addressed to the person's last-known address; and
(c) serve a copy of the notice on the director of public prosecutions.
13 Handing over depositions
If a solicitor ceases to act for an accused person, the solicitor must, as soon as practicable after ceasing to act, give the depositions (if any) the solicitor has received under the Magistrates Court Act 1930 , section 108 (Copies of depositions may be obtained by accused) to—
(a) if the solicitor has received a notice under rule 10 (Notice of solicitor acting) from another solicitor—the other solicitor; or
(b) if the solicitor has not received a notice under rule 10—the accused person.
Division 80.6 Bail
14 Meaning of accused person for div 80.6
In this division:
"accused person"—
(a) for an application under the Bail Act 1992 , division 6.2 (Review of decisions by courts)—means a person who is an accused person for that division; and
Note to par (a) Accused person is defined for that division in the Bail Act 1992 , dict.
(b) for any other application in relation to bail—includes a convicted person.
Note to par (b) See also r 1, def accused person .
15 Application in relation to bail by accused person
(1) An application in relation to bail by an accused person must be made by motion on notice in accordance with form 4.6.
(2) Unless the court otherwise orders, the notice must—
(a) state the accused person's name; and
(b) state the date and time when, and place where, the motion is to be made; and
(c) if the court makes an order under subrule (6)—state the terms of the order; and
(d) state briefly the order (or orders) sought; and
(e) state briefly particulars of the grounds relied on in support of the order (or orders) sought.
(3) The motion must be supported by an affidavit stating—
(a) the charges (if any) outstanding against the accused person; and
(b) if the accused person has been committed for sentence or trial to the court—that fact, and the date the person was committed; and
(c) if the accused person has been convicted or found guilty of an offence relevant to the application—that fact, the offence and the date the person was convicted or found guilty; and
(d) if the accused person has been sentenced for an offence relevant to the application—that fact, the sentence and the date the person was sentenced; and
(e) if bail has previously been refused for an offence relevant to the application—the reasons bail was refused; and
(f) the accused person's date of birth; and
(g) whether the accused person has a criminal record; and
(h) if the accused person is in custody—the day the person was placed in custody; and
(i) the day the matter is next listed before a court; and
(j) the informant's name; and
(k) if the Bail Act 1992 , section 9C (Bail for murder), section 9D (Bail for serious offence committed while charge for another pending or outstanding) or section 9E (Bail for person sentenced to imprisonment) applies in relation to the application—the special or exceptional circumstances that exist favouring the grant of bail; and
(l) if a court has made a decision in relation to an application for bail by the accused person and the application is a further application for bail—
(i) whether the accused person was represented by a lawyer at the hearing of the person's first application to a court for bail in relation to the offence with which the person is charged; or
(ii) any significant change in circumstances relevant to the granting of bail since the most recent application to a court for bail; or
(iii) any fresh evidence or information of material significance to the granting of bail that was unavailable on the most recent application to a court for bail; and
Note See the Bail Act 1992 , s 19 (General provisions relating to court bail).
(m) if the application is for review of a decision in relation to bail—
(i) any significant change in circumstances relevant to the granting of bail; or
(ii) the availability of fresh evidence or information of material significance to the granting of bail that was unavailable on the most recent application to the court for bail; and
Note See the Bail Act 1992 , s 43 (Power of Supreme Court to review).
(n) the conditions (if any) on which bail is sought.
(4) The supporting affidavit must be in accordance with form 4.7.
(5) The accused person must lodge the notice and supporting affidavit for filing and serve a copy on the director of public prosecutions.
(6) Unless the court otherwise orders, there must be at least 2 clear days between the day of service of the notice and the day stated in the notice for hearing the motion.
(7) The court may order service of the notice and supporting affidavit on anyone it considers appropriate.
16 Application in relation to bail by informant
(1) An application in relation to bail by an informant must be made by motion on notice in accordance with form 4.6.
(2) Unless the court otherwise orders, the notice must—
(a) state the accused person's name; and
(b) state the date and time when, and place where, the motion is to be made; and
(c) if the court makes an order under subrule (5)—state the terms of the order; and
(d) state briefly the order (or orders) sought; and
(e) state briefly particulars of the grounds relied on in support of the order (or orders) sought.
(3) The motion must be supported by an affidavit.
(4) The informant must lodge the notice and supporting affidavit for filing and serve a copy on the accused person.
(5) Unless the court otherwise orders, there must be at least 2 clear days between the day of service of the notice and the day stated in the notice for hearing the motion.
(6) The court may order service of the notice and supporting affidavit on anyone it considers appropriate.
Division 80.7 Pre-trial procedure
17 Application of div 80.7
This division applies if an accused person is committed to the court for trial or sentence.
18 Appearance of accused person
The accused person must appear before the court on the date (the appearance date ) set as a condition of bail or by the court or Magistrates Court.
19 Appearance when committed for sentence
If the accused person is committed for sentence, the court may, on the appearance date—
(a) ask the accused person about the person's representation, including legal aid; and
(b) if the accused person pleaded guilty in the Magistrates Court—confirm the accused person's plea of guilty; and
(c) direct the director of public prosecutions to lodge with the court a statement of the facts (the case statement ) on which the prosecution relies; and
(d) direct the director of public prosecutions to give a copy of the case statement to the accused person or, if the accused person is represented by a lawyer, the person's lawyer by the date set by the court; and
(e) ask the parties if the matter is urgent; and
(f) set a date for sentence; and
(g) make orders in relation to pre-sentence reports; and
(h) ask if any variation of bail is sought; and
(i) deal with any application to suppress the accused person's name; and
(j) give any other directions that the court considers appropriate.
20 Appearance when committed for trial
If the accused person is committed for trial, the court may, on the appearance date—
(a) ask the accused person about the person's representation, including legal aid; and
(b) ask the accused person whether the person has decided to have the trial by judge alone; and
Note See the Supreme Court Act 1933 , s 68B (Trial by judge alone in criminal proceedings).
(c) direct the director of public prosecutions to lodge with the court—
(i) a draft indictment; and
(ii) the case statement; and
(iii) a list of proposed prosecution witnesses; and
(d) direct the director of public prosecutions to give a copy of the draft indictment, case statement and list of proposed prosecution witnesses to the accused person or, if the accused person is represented by a lawyer, the person's lawyer by the date set by the court; and
(e) direct the parties to complete and lodge with the court a pre-trial questionnaire in accordance with form 4.8 by the date set by the court; and
(f) ask the parties if the matter is urgent; and
(g) ask about any unusual features of the matter; and
(h) ask about the length of the trial; and
(i) ask if any variation of bail is sought; and
(j) deal with any application to suppress the accused person's name; and
(k) give any other directions that the court considers appropriate.
21 Pre-trial questionnaire
If the parties are directed to complete a pre-trial questionnaire—
(a) the director of public prosecutions must—
(i) complete the column of the questionnaire headed ‘DPP'; and
(ii) give the completed questionnaire to the accused person or, if the accused person is represented by a lawyer, the person's lawyer —
(A) at least 7 days before the day the questionnaire must be lodged with the court; or
(B) if the court sets another date—by that date; and
(b) the accused person or the person's lawyer must—
(i) complete the column of the questionnaire headed ‘Accused'; and
(ii) lodge the completed questionnaire with the court by the date set by the court.
22 Pre-arraignment conference
(1) After the pre-trial questionnaire is completed by the accused person or the person's lawyer, and lodged with the court, the registrar must—
(a) set a date and time for a pre-arraignment conference; and
(b) tell the parties the date and time for the conference.
(2) At the pre-arraignment conference, the registrar may—
(a) give directions about matters raised in the pre-trial questionnaire, including a direction that the matter be listed before a judge; and
(b) ask the parties about the length of the trial; and
(c) consider whether it is appropriate for the matter to be dealt with as a reserve trial and, if so, give appropriate directions; and
(d) set a date, at least 14 days after the day of the pre-arraignment conference, for arraignment of the accused person before the court; and
(e) adjourn the conference to another date.
(3) The registrar may refer a matter to a judge, if a party does not comply with directions made by the registrar or the court.
23 Arraignment
(1) On the arraignment of the accused person, the director of public prosecutions may present an indictment in relation to the person to the court.
(2) If an indictment is presented by the director of public prosecutions, the accused person must enter a plea.
Note The Crimes Act 1900 , s 282 provides that if a person refuses to plead, the court may order a plea of not guilty to be entered on behalf of the person, and the plea has the same effect as if the person had pleaded not guilty.
(3) If the accused person enters a plea of guilty, the court must set a date for sentence.
(4) If the accused person enters a plea of not guilty, the court must—
(a) allocate a date for trial; and
(b) set a date for the pre-trial directions hearing; and
(c) order the accused person to appear before the court on the date set for the pre-trial directions hearing.
24 Pre-trial directions hearing
At the pre-trial directions hearing, the court may—
(a) confirm the trial length; and
(b) hear and decide any preliminary or other matters.
Division 80.8 Pre-trial applications
25 Applications to set aside or stay proceedings
(1) An accused person may apply to set aside or stay any criminal proceeding against the person.
(2) The application must be made and heard before the accused person is arraigned.
(3) If the application is dismissed, the accused person may make a further application under subrule (1) in relation to the same or similar charges only if—
(a) there has been a significant change of circumstances; and
(b) the application is limited to the change of circumstances.
26 Applications for separate trials
An accused person may apply for—
(a) separate trials of different charges alleged against the person in the same indictment; and
(b) a separate trial from that of someone else committed for trial and charged in the same indictment.
27 Other pre-trial applications
An application made in the course of a criminal proceeding must be made in writing if—
(a) the application—
(i) is made before the prosecution's case opens or witnesses are called; and
(ii) raises any question about the admissibility of evidence, or any other question of law affecting the conduct of the trial, or
(b) the application would postpone or delay a trial that has been listed for hearing if it were granted; or
(c) the application cannot reasonably be made without notice to other parties; or
(d) the application is directed by a judge to be in writing.
28 Applications under r 25, r 26 and r 27
(1) An application under rule 25, rule 26 or rule 27 must be made by motion on notice in accordance with form 4.9.
(2) Unless the court otherwise orders, the notice must—
(a) state the party moving the motion; and
(b) state the date and time when, and place where, the motion is to be made; and
(c) if the court makes an order under subrule (3)—state the terms of the order; and
(d) state briefly the order (or orders) sought; and
(e) state briefly particulars of the grounds relied on that are sufficient for any other party to decide whether to call evidence to resolve the issues raised; and
(f) state briefly any questions of law; and
(g) be supported by an affidavit lodged for filing with the notice stating—
(i) any evidence necessary to establish the grounds of the application; and
(ii) any evidence that the applicant wants the court to receive.
(3) Unless the court otherwise orders—
(a) the notice and any supporting affidavits must be served on all other parties as soon as possible after the notice is lodged for filing but at least 14 days before the date set for the trial to which the notice relates; and
(b) there must be at least 2 clear days between the day of service of the notice and the day stated in the notice for hearing the motion.
(4) The court may order service of the notice on anyone it considers appropriate.
(5) This rule is subject to rule 25 (2) (Applications to set aside or stay proceedings).
(6) The registrar—
(a) must endorse the notice with the date, time and place of hearing; and
(b) if the trial date has been set, may endorse the notice to be heard by the court immediately before the trial begins.
Division 80.9 Criminal proceedings—other provisions
29 Arraignment dates
The registrar must publish a list of arraignment dates for each year.
30 Production of person in custody
(1) The court may make the following orders:
(a) an order requiring the production of a person who is in custody;
(b) an order about the continuing custody of a person who is in custody.
(2) The court may order that the person in custody be produced—
(a) in person; or
(b) by audiovisual link or audio link in accordance with the Evidence (Miscellaneous Provisions) Act 1991 , part 3 (Use of audiovisual links and audio links).
(3) The registrar may exercise the jurisdiction of the court for subrule (1) (a) or (2).
(4) An order under this rule may be made on the application of a party or on the court's initiative.
(5) An order under this rule may, but need not, be in accordance with form 4.10.
31 Defence response to prosecutor's opening address
If an accused person, or the person's lawyer, makes an opening response to the prosecutor's opening address in a trial, the response—
(a) must identify the acts, facts, matters and circumstances with which issue is taken in the prosecutor's opening address and the basis on which issue is taken; and
(b) must not state facts that cannot be supported by evidence to be presented, or that has been presented, at the trial.
32 Execution of documents
The registrar or a justice of the peace may witness any recognisance or other document required or permitted to be entered into under an order, decision or other sentence (however described) of the court in a criminal proceeding.
33 Inspection of registry files
(1) During office hours, anyone may search the registry for, inspect, or take a copy of, any document filed in the registry in a criminal proceeding.
Note A fee may be determined under the Court Procedures Act 2004 for this rule.
(2) However, a person who is not a party to a matter may search the registry for, inspect, or take a copy of, any of the following documents about the matter only with the court's leave:
(a) a judgment, order, transcript of a proceeding, or any other document, that the court has ordered to be kept confidential;
(b) an affidavit that has not been read in court;
(c) a part of an affidavit ruled to be inadmissible in evidence;
(d) an admission that has not been admitted into evidence;
(e) a subpoena, or a document filed with the registrar in answer to a subpoena for production of documents;
(f) a deposition taken before an examiner;
(g) a document filed in support of an application made in the absence of a party;
(h) a written submission that has not been read in court;
(i) an unsworn statement of evidence;
(j) a draft indictment lodged with the court by the prosecution;
(k) a case statement filed by the prosecution until read in court;
(l) a questionnaire completed by the parties;
(m) a document that the registrar decides should be confidential to the parties to the matter in the interests of justice.
(3) Also, a party to a matter may search the registry for, inspect, or take a copy of, a subpoena issued at the request of another party only with the court's leave.
(4) Further, a party to a matter may search the registry for, inspect, or take a copy of, a document filed to support any of the following applications only with the court's leave:
(a) an application for a document, evidence or thing to be kept confidential;
(b) an application for a document or thing to be granted privilege from production.
(5) In this rule:
"document"—to remove any doubt, document includes a document kept electronically or in any other way.
Note The Legislation Act, dict, pt 1, defines document to mean any record of information, and includes—
(a) anything on which there is writing; or
(b) anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for persons qualified to interpret them; or
(c) anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or
(d) a drawing, map, photograph or plan.
34 Certificate of conviction
(1) For a criminal proceeding, the registrar may issue a certificate of conviction.
(2) In this rule:
"conviction", for a person who has been found guilty at a trial on an indictment or pleaded guilty to an offence charged in an indictment, means—
(a) a conviction recorded by the court for the person; or
(b) a finding of guilt recorded by the court for the person.
35 Preparation of judgments
(1) In this rule:
"judgment" means sentence or other order.
(2) At any time after a judgment has been given in a criminal proceeding, a party may give a draft of the judgment to the registrar.
(3) If an appeal is made from the judgment, or an application is made in relation to the judgment, the appellant or applicant must give a draft of the judgment to the registrar, unless the judgment has been already entered.
(4) The registrar—
(a) may approve a draft of the judgment given to the registrar, with or without amendment; and
(b) must, on the filing of the engrossed judgment with the approved draft, enter the judgment.
(5) The registrar may file a minute of a judgment on the registrar's own initiative.
(6) A draft judgment must be in accordance with form 4.11.