Federal Crime & Related Proceedings Practice Note (CRIME-1)

J L B Allsop, Chief Justice 15 May 2017

National Practice Area Practice Note

1. Introduction

1.1 This practice note applies to proceedings within the Federal Crime and Related Proceedings National Practice Area (“NPA”) and provides guidance for parties to criminal proceedings in the Federal Court. For the purpose of this practice note “criminal proceedings” includes:

  • summary criminal proceedings;
  • indictable primary proceedings; and
  • criminal appeal proceedings.

Further details about the Court’s criminal jurisdiction and this NPA are available on the Court’s Federal Crime and Related Proceedings NPA “homepage”.

1.2 This practice note should be read together with the:

1.3 Parties and practitioners dealing with criminal proceedings should be particularly familiar with the Criminal Proceedings Rules. Those rules are designed, as far as practicable, to provide a single set of rules for the conduct of criminal proceedings in this Court. They address most of the issues which are likely to arise on a day-to-day basis in criminal proceedings, including:

(a) the general powers of the Court, such as the power to dispense with compliance with a rule (rr 1.06 - 1.08);

(b) the use of affidavits, including in interlocutory hearings (Division 1.8);

(c) summary criminal proceedings, which are heard by a judge sitting alone (Part 2);

(d) indictable primary proceedings, including how they can be commenced (Part 3);

(e) other aspects of indictable primary proceedings, including:

indictments and applications (Division 3.1);

pre-trial hearings and disclosure (Division 3.2);

juries and arraignment (Division 3.3);

(f) criminal appeal proceedings, including leave to appeal and the preparation and conduct of a criminal appeal (Part 4);

(g) bail (Part 5); and

(h) expert evidence requirements (Part 6).

2. Other Practice Notes

2.1 This practice note should also be read together with the Court’s other practice notes, including the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the National Court Framework of the Federal Court and key principles of case management procedure.

2.2 The Court has other practice notes on a range of subject matters. If an issue is not covered by this practice note or the Criminal Proceedings Rules but is covered by another practice note, a party to a criminal proceeding should comply with that other practice note to the extent that it is appropriate to do so.

2.3 Where there is inconsistency in procedure between this practice note or the Criminal Proceedings Rules on the one hand, and any another practice note on the other hand, parties should follow the procedures set out in this practice note or the Criminal Proceedings Rules.

2.4 All practice notes are available on the Court’s website.

3. Allocation and Case Management

3.1 A national allocations system is in place, with judges experienced in managing crime-related cases, including criminal appeals, and registrars experienced in the practice and procedure of criminal proceedings to assist the judges with the case management of such matters.  A comprehensive list of all Federal Crime and Related Proceedings NPA Judges nationally is available on the Court's website.

3.2 While any crime-related case is likely to be managed by the Court within this NPA, the Court will ensure that the judge allocated to manage the case has expertise in the underlying area of law the subject of the proceeding - for example, competition and consumer law or intellectual property law.

4. Preparing and Lodging Documents

4.1 A party to criminal proceedings should comply with the Technology and the Court Practice Note (GPN–TECH) when preparing and lodging documents,to the extent that it is appropriate to do so.

5. Case Management Generally

5.1 In summary criminal proceedings and indictable primary proceedings, the Judge who has been allocated the matter will hold such pre-trial hearings and make such pre-trial orders as are needed for the proper management of the case.  Provisions dealing with pre-trial hearings in indictable primary proceedings are included in ss 23CA to 23CQ of the Federal Court Act.

5.2 In criminal appeal proceedings the Court will generally apply the same case management procedures as in civil appeal proceedings, with any modifications required to meet the needs of the case.

6. Criminal Appeal Proceedings

6.1 A party to a criminal appeal proceeding should comply with the following practice notes, to the extent that it is appropriate to do so:

7. Bail

7.1 The affidavit which accompanies a written application for bail should include the following information:

(a) the name, address and date of birth of the accused;

(b) if the accused is in custody - the day the accused was taken into custody;

(c) the day the matter is next listed before the Court;

(d) whether the Court has previously refused to grant bail for one or more of the offences to which the application relates, and if so, a description of any material change in circumstances since the refusal;

(e) if charges for another offence against a law of the Commonwealth, a State, a Territory or a foreign country are outstanding against the accused:

(i) a description of the charges;

(ii) whether the accused was committed for sentence or trial for the charges; and

(iii) the day on which the committal order (if any) was made;

(f) whether the accused has been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country and, if so:

(i) a description of the offence;

(ii) the day the accused was convicted of the offence; and

(iii) the sentence (if any) imposed in respect of the offence;

(g) whether another court has refused another application for bail by the accused for an offence, and if so, the reasons stated by the other court for refusing the other application; and

(h) if the accused is proposing that the bail be granted subject to conditions - a description of the conditions.

7.2 If an accused wants to make an oral application for bail, the accused can apply for leave at a hearing of the Court.

7.3 If an accused is given leave to make an oral application for bail, the accused can provide information in any way acceptable to the Court. However, whatever form the information takes, it should cover the matters listed in paragraph 7.1.

7.4 The Court can ask an accused to provide further information to support a bail application. The Court may adjourn the hearing of a bail application if it is not satisfied that it has been given sufficient information or if it considers that the prosecution should be given more time to respond to matters raised by the accused.

8. Expert Witnesses

8.1 A party to criminal proceedings who wants to retain an expert to give an expert report or to call an expert to give expert evidence should comply with the Expert Evidence Practice Note (GPN-EXPT), to the extent that it is appropriate to do so.

9. Subpoenas

Part 8 of the Criminal Proceedings Rules

9.1 The rules that apply to subpoenas in criminal proceedings are set out in Part 8 of the Criminal Proceedings Rules.  Those rules are similar to the rules for civil proceedings that appear in Part 24 of the Federal Court Rules.

GPN-SUBP: Subpoenas and Notices to Produce

9.2 The procedures that apply to subpoenas in civil proceedings are set out in Subpoenas and Notices to Produce Practice Note (GPN-SUBP). The same general procedures apply to subpoenas in criminal proceedings.

9.3 Accordingly, a party to criminal proceedings should comply with the procedures set out in GPN-SUBP, to the extent that it is practicable to do so, as if the references in that practice note to Part 24 of the Federal Court Rules included references to Part 8 of the Criminal Proceedings Rules.

Applying for Leave to Issue a Subpoena

9.4 A party to criminal proceedings who wants to apply for leave to issue a subpoena can:

(a) make an oral application at a pre-trial hearing; or

(b) send a written Subpoena Request (as defined in paragraph 3.1 of GPN-SUBP) to the chambers of the relevant Judge.

9.5 A written Subpoena Request should:

(a) include a brief statement of the reasons why leave is sought; and

(b) attach a draft subpoena.

There is no need for a supporting affidavit unless the Court requests one.

9.6 If a party proposes to issue subpoenas to a large number of people who are in the same category, the party can:

(a) apply, at a pre-trial hearing, for an order dispensing with the requirement for leave to issue subpoenas to people in that category; or

(b) use a single written Subpoena Request that covers all the people in that category (and which would consist of a single request form (Request for Leave to Issue a Subpoena – Form NCF7) with an attached list of names, if necessary, to supplement item 3.5 of the form).

That may apply if, for example, the prosecution proposes to issue subpoenas to every person who provided a statement that was included in a brief of evidence delivered to the accused.

9.7 Further information on the procedure for applying for leave to issue a subpoena is set out in Part 3 of GPN-SUBP.

Applying for leave to inspect or uplift documents

9.8 The procedure for inspecting or uplifting a document in civil proceedings is set out in Part 8 of GPN-SUBP.

9.9 A party to a criminal proceeding should comply with that procedure to the extent that it is practicable to do so.

10. Proceeds of Crime Act

10.1 The Court has jurisdiction to make orders under the Proceeds of Crime Act 2002 (Cth) (“PoC Act”) by operation of s 335(7) of that Act. Section 335(7) provides that, if the Court has jurisdiction to try a person (whether on indictment or summarily) for an indictable offence, the Court has jurisdiction to make an order under the PoC Act on the basis of:

(a) a proposal that the person be charged with the offence; or

(b) the person having been charged with the offence; or

(c) the person's conviction of the offence.

10.2 The Court can potentially hear an application for an order under the PoC Act at any stage of the criminal process. That may be before criminal proceedings are before the Federal Court, and even before charges have been laid.

10.3 Section 315 of the PoC Act provides that proceedings under that Act are civil, not criminal. Accordingly, a person who wants to apply to the Federal Court for an order under the PoC Act should comply with the Federal Court Rules and any practice notes that are relevant to civil proceedings.

11. Contempt of Court

11.1 The Federal Court has power to punish contempts of court under s 31 of the Federal Court Act.

11.2 In CFMEU v Boral Resources[1] the High Court ruled that proceedings for contempt of court are essentially criminal in nature but do not involve the exercise of criminal jurisdiction.

11.3 Rules for the conduct of contempt proceedings before the Federal Court are in Part 42 of the Federal Court Rules.

11.4 Parties should also be familiar with the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF), and in particular Parts 5– 8 of that practice note dealing with contempt of court.

12. Further Information

12.1 Further practice and procedure information and resources for this NPA can be found on the Court’s Federal Crime and Related Proceedings NPA “homepage”.

12.2 General queries concerning the practice arrangements in the Federal Crime and Related Proceedings NPA should be raised, at first instance, with your local registry. For more complex enquires specific to this NPA, the Court will arrange a registrar experienced in the NPA to address your query. Contact details for your local registry are available on the Court’s website.

 

J L B ALLSOP
Chief Justice

15 May 2017 



[1] [2015] HCA 21