Criminal Procedure Act 2009

The Act distinguishes between the two fundamental modes of dealing with criminal charges: summary procedure under Chapter 3 and trial on indictment under Chapter 5. A charge for a summary offence must be heard and determined summarily (s 27). A charge for an indictable offence may be heard and determined summarily by the Magistrates' Court only if the offence is listed in Schedule 2 or falls within the description in s 28(1)(b) (level 5 or level 6 offences or those punishable by imprisonment not exceeding 10 years). The court must also consider the matters in s 29(2), including the seriousness of the offence, the adequacy of available sentences and whether a co-accused is charged with the same offence, and the accused must consent to a summary hearing (s 29(1)(b)). Indictable offences that are not heard summarily proceed through committal (Chapter 4) and then to trial in the County Court or Supreme Court.

A criminal proceeding can be commenced in three ways: by filing or signing a charge-sheet in the Magistrates' Court (s 5(a), s 6); by filing a direct indictment (s 5(b), s 159); or by a direction under s 415 that a person be tried for perjury. The summons, warrant to arrest, and notice to appear (s 21 to s 26) are the mechanisms for compelling or notifying attendance after a charge-sheet is filed. A notice to appear, served by a police officer or public official who reasonably suspects an offence, does not itself commence a proceeding; it lapses unless a charge-sheet is filed within 14 days (s 22, s 26).

Pre-trial disclosure operates in tiers. In summary matters, the informant serves a preliminary brief (s 37) and, on request, a full brief (s 41). In committal proceedings, the informant serves a hand-up brief (s 110) or, with consent, a plea brief (s 116, s 117). The prosecution has a continuing obligation of disclosure in both summary and indictable matters (s 42, s 111, s 185). The disclosure certificate, introduced by the 2022 amendments, requires the informant to identify material not disclosed due to privilege, public interest immunity, or statutory prohibition (s 41A, s 110A).

The committal proceeding is a pre-trial process for indictable offences. Its purposes include determining whether summary determination is appropriate, ascertaining how the accused proposes to plead, and ensuring a fair trial by adequate disclosure and definition of issues (s 97). The hearings within a committal proceeding are a filing hearing, special mention hearing, compulsory examination hearing, committal mention hearing, committal case conference and, in some matters, a committal hearing (s 100). Cross-examination of witnesses at committal hearings is tightly controlled. In proceedings involving sexual offences, family violence offences or stalking, the court must not grant leave to cross-examine any witness (s 123). For other proceedings, leave is required and the court must be satisfied that cross-examination is directly and substantially relevant to an identified issue and that there are substantial reasons why, in the interests of justice, the witness should be cross-examined (s 124).

Course of conduct charges are a special form of charge created by Schedule 1, clause 4A. They permit a single charge to encompass more than one incident of the same relevant offence occurring over a specified period, provided the incidents together amount to a course of conduct. This is available for sexual offences and certain offences under the Crimes Act 1958 including assault, stalking and threat offences. A course of conduct charge is a single offence, not multiple charges, and the prosecution need not prove any particular number of incidents or their dates, times or places with specificity (Schedule 1, clause 4A(9), (10)).

The Act applies to every person or entity involved in the Victorian criminal justice system.

The accused, whether a natural person or a body corporate, is the central subject of the procedural rules. The accused has rights to receive disclosure (s 32, s 35, s 39, s 107), to be informed of the charge (s 62), to consent to or decline summary hearing (s 29(1)(b)), to enter a plea (s 62 to s 64A), to make no-case submissions (s 66, s 226), to give or not give evidence (s 66, s 226), to apply for sentence indications (s 60, s 207, s 208) and to appeal (Chapter 6). Child accused who were 12 or 13 at the time of the offence are affected by the presumption against criminal responsibility, which may now be determined at a pre-trial hearing under s 206A to s 206G.

The informant, who commences the proceeding in the Magistrates' Court, bears the initial disclosure obligations, must serve briefs, file documents and comply with time limits. Where the Director of Public Prosecutions (DPP) conducts the proceeding, the informant has an additional statutory duty to disclose all relevant material to the DPP (s 415A). The DPP files indictments (s 159), discontinues prosecutions (s 177), conducts trials on indictment and brings Crown appeals against sentence (s 287, s 290A). Police officers are affected as informants and also as the issuer of notices to appear and summonses (s 14, s 21). The Chief Commissioner of Police may be liable for costs orders against police informants (s 401(5)).

Legal practitioners representing accused persons have specific obligations. They must advise the court of their intention to appear at trial at least seven days before the trial (s 249(1)). They may only relinquish a brief within seven days of trial with leave of the court (s 249(2)). They may be ordered to pay costs personally for unreasonable conduct (s 410). The court may also make complaints to the Victorian Legal Services Commissioner regarding non-compliance with the Act (s 250).

Witnesses, particularly complainants in sexual offence and family violence proceedings, are given extensive protections. They may give evidence by closed-circuit television (s 363), be supported by a support person (s 365), have their evidence-in-chief pre-recorded (Division 5 of Part 8.2) and be cross-examined at a special hearing (Division 6 of Part 8.2). A protected witness, including the complainant and their family members, must not be cross-examined by the accused in person (s 356). Intermediaries may be appointed to assist communication with child witnesses and those with cognitive impairment (s 389J).

Corporate accused face particular provisions. They may be heard and determined summarily in their absence if they fail to appear (s 82). They must comply with orders to appear by a representative or legal practitioner (s 144(2)(d)), and failure to do so is an offence carrying a penalty of 240 penalty units (s 252). Service on a corporation is governed by s 393.

Victims who are witnesses have a statutory entitlement to be present in court unless the court orders otherwise (s 336A). The Victims' Charter Act 2006 obligations interact with the disclosure regime, particularly regarding privacy (s 14 of that Act, noted in ss 48, 114, 187).

Prosecution disclosure is a central duty. In summary proceedings, the informant must serve a preliminary brief within 14 days if requested under s 35(2), and a full brief at least 14 days before the contest mention hearing or summary hearing on request (s 39). The full brief must contain a comprehensive list of material, including all witness statements, exhibits, forensic reports and any material relevant to the credibility of prosecution witnesses (s 41(1)(e)(viii)). The informant must complete a disclosure certificate describing material not disclosed due to privilege or statutory prohibition (s 41A). There is a continuing obligation to disclose material that comes into possession after initial service (s 42). The prosecution may refuse disclosure on specified grounds including prejudice to law enforcement, protection of confidential sources, and endangerment to safety (s 45). The accused may apply to the court for an order requiring disclosure if the informant refuses or fails to disclose (s 46).

In committal proceedings, the informant must serve a hand-up brief at least 42 days before the committal mention hearing (s 108(1)). The hand-up brief contains the charge-sheet, a statement of material facts, witness statements, transcripts of examinations, exhibits, and material relevant to witness credibility (s 110). A disclosure certificate must also be completed (s 110A). The DPP has duties of continuing disclosure after committal (s 185) and must serve a summary of prosecution opening and notice of pre-trial admissions at least 28 days before trial (s 182).

The accused has corresponding rights. The accused is entitled to a copy of the charge-sheet and reasonable particulars free of charge (s 32). The accused may request disclosure, request inspection of exhibits and apply to the court to compel disclosure (s 43, s 46). The accused must give notice of alibi evidence or expert evidence they intend to call (s 50, s 51, s 189, s 190). Failure to give notice of alibi may result in leave being required to adduce that evidence (s 51(2), s 190(1)). The accused must serve a response to the prosecution's summary of opening and notice of pre-trial admissions at least 14 days before trial (s 183).

The court has a duty to ensure a fair trial. Where the accused is unrepresented and charged with an imprisonable offence, the court must ask whether legal advice has been sought and inform the accused of the right to legal aid (s 33). The court may order Victoria Legal Aid to provide legal representation if it is satisfied a fair trial cannot otherwise occur and the accused cannot afford representation (s 197). The court must not hear a proceeding against a person who does not have sufficient English without a competent interpreter (s 335).

Diversion is a right available to an accused who acknowledges responsibility for a summary offence or an indictable offence that may be heard summarily, before a formal plea is taken. If the accused and prosecution consent, the court may adjourn for up to 12 months to enable completion of a diversion program. Successful completion results in discharge without a finding of guilt, and the participation is not treated as a finding of guilt except for limited purposes (s 59).

Sentence indication is available in both the Magistrates' Court and the superior courts. In the Magistrates' Court, the court may indicate the type of sentence likely to be imposed on a guilty plea (s 60). In the County Court and Supreme Court, the court may indicate a sentence of a specified type or a specified maximum total effective sentence (s 207). The indication binds the court if the accused pleads guilty at the first available opportunity; the court must not impose a more severe sentence than indicated (s 61(1), s 209(1)). A second or subsequent indication may be given if there is a material change in circumstances (s 208(3A)).

The Act creates relatively few substantive offences, but those it does create carry significant penalties. Communicating with an alibi witness without the consent and presence of the accused's legal practitioner or the accused is an offence punishable by level 8 imprisonment (one year maximum) (s 52, s 191). Failure by a corporate accused to appear in compliance with a court order is punishable by 240 penalty units (s 252). Failure to comply with an undertaking given to the DPP for the release of property tendered in evidence is punishable by a level 10 fine (10 penalty units maximum) (s 157(5)). Publishing material in contravention of a suppression order made under s 206G in relation to a pre-trial hearing on the presumption against criminal responsibility carries a penalty of level 6 imprisonment (five years maximum) for individuals and 3000 penalty units for bodies corporate.

The Act's primary enforcement mechanism is not penal but procedural. Non-compliance with disclosure obligations may result in court orders compelling disclosure (s 46, s 122). Failure to serve documents within time limits may result in adjournments or, in the case of a notice to appear, the lapsing of the notice (s 22). Failure to appear may result in a warrant to arrest (ss 80, 81, 25). Adjournments may be granted on terms as to costs (s 331(1)(c)).

Costs orders operate as a significant enforcement tool. In the Magistrates' Court, costs are in the discretion of the court, which may take into account any unreasonable act or omission prolonging the proceeding (s 401). Costs may be awarded against the Chief Commissioner of Police where the informant is a police officer (s 401(5)). In the Supreme Court and County Court, costs may be ordered against a party or a party's legal practitioner for unreasonable acts or omissions before trial, departures from disclosed positions, or non-compliance with Part 5.5 requirements (s 404). Legal practitioners may be ordered to pay costs personally for improper conduct, undue delay or negligence (s 410).

Warrants to arrest are the primary coercive mechanism for securing attendance. They may be issued in the first instance only on sworn or affirmed evidence establishing that the accused will not answer a summons, has absconded or is likely to do so, or for other good cause (s 12(5)). Warrants may also be issued for failure to attend when required (s 330(4), (5)). A person arrested on a warrant issued by a court other than the Magistrates' Court must, if practicable, be brought before the issuing court (s 411(2)).

The Act operates alongside a suite of Victorian and Commonwealth legislation. It expressly preserves the operation of the Evidence Act 2008, particularly in relation to credibility evidence (noted at s 124(4)), expert certificates (s 177 of that Act), admissions (s 184), and the hearsay rule (s 387). The Jury Directions Act 2015 governs the content of directions given to the jury, with the Act providing for a general jury guide (s 223A) and specific jury documents (s 223). The Sentencing Act 1991 is central to the Act's sentencing provisions, including the definition of sentence (s 3), the maximum penalties available on summary hearing (noted at s 28), and the orders that may be made on appeal (s 256, s 282, s 290). The Bail Act 1977 governs bail decisions made under the Act, including bail pending appeal (s 265, s 310, s 323) and the presumption of bail for accused charged under the double jeopardy provisions (s 327G).

The Children, Youth and Families Act 2005 applies to proceedings involving children, with the Act providing for the commencement of proceedings in the Children's Court (noted at s 6(1)), the transfer of charges back to the Children's Court (s 168, s 168A), and the power to return an accused to a youth justice centre (s 333). The Youth Justice Act 2024 establishes the presumption against criminal responsibility for children aged 12 or 13, with the Act providing the procedural mechanism for its pre-trial determination (s 206A to s 206G).

The Act interacts with the Confiscation Act 1997 in relation to proceeds of crime, with the diversion program exception preserving certain confiscation provisions (s 59(4)(c)(i)). The Family Violence Protection Act 2008 is relevant to the definition of family violence offence and the operation of recorded evidence provisions in Division 7B of Part 8.2. The Open Courts Act 2013 governs the closure of proceedings, with the Act noting its application to sentence indication hearings (s 207 note). The Charter of Human Rights and Responsibilities Act 2006 is engaged throughout, with the Act specifically stating that certain provisions operate despite the Charter (s 197(2), s 194(2)) and noting the referral of questions of law under s 33 of the Charter (s 302 note).

The Crimes Act 1958 creates most of the substantive offences to which the Act applies. The Act specifically incorporates the definition of child abuse material from s 51A of the Crimes Act (s 3), and the Prosecution Act 1994 governs the functions of the DPP in filing indictments and conducting prosecutions (s 159). The Infringements Act 2006 and Fines Reform Act 2014 provide alternative enforcement pathways for infringement offences, with the Act preserving those procedures (s 85, s 27 note).

The Act has been amended extensively since its commencement. The most significant recent amendments are those made by the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, which introduced the disclosure certificate (s 41A, s 110A), the DPP's obligation of disclosure to the DPP by the informant (s 415A), and the non-disclosure order regime (s 416A to s 416C). These changes were intended to address systemic failures in prosecutorial disclosure that had been identified in multiple reviews and inquiries. The amendments also introduced the second or subsequent sentence indication (s 208(3A)) to respond to changes in circumstances and amended the effect of sentence indications to refer to a specified maximum total effective sentence rather than a specified type of sentence (s 207(1)(b)).

The Justice Legislation Amendment (Committals) Act 2025 made substantial reforms to the committal system, effective from 28 December 2025. Division 1 of that Act repealed s 97(b) and s 97(d)(iii), removing the purpose of determining whether the evidence is of sufficient weight to support a conviction from the committal proceeding. The Act introduced early committal for trial in the Supreme Court for applicable offences under new Part 4.6A (ss 127A to 127F), requiring the Magistrates' Court to commit accused charged with offences outside the County Court's jurisdiction or prescribed by regulation directly to the Supreme Court. Cross-examination at committal hearings was further restricted by requiring that cross-examination be directly and substantially relevant and that there be substantial reasons in the interests of justice (s 124(3), s 132(2), s 198A(4)). The Act also removed the requirement for a committal mention hearing or committal hearing in proceedings where Part 4.6A applies (s 125(1A)). These changes reflect a policy shift away from the committal as a testing ground for prosecution evidence and towards early committal and earlier trial dates for serious matters.

The Youth Justice Act 2024 introduced the pre-trial hearing mechanism for determining whether the presumption against criminal responsibility is rebutted for child accused aged 12 or 13 (s 206A to s 206G). This allows the issue to be resolved before trial by judge alone, with reasons to be given in writing, and with the potential for suppression orders. The provision applies from 30 September 2025.

The Sex Work Decriminalisation Act 2022, effective from 1 December 2023, amended the definition of sexual offence to exclude offences under the Sex Work Act 1994 that are not listed in s 4(1)(a)(iii), reflecting the decriminalisation of sex work in Victoria.

The Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 introduced s 7B, addressing the charging of sexual offences where the law changed during a period of alleged conduct, allowing the accused to be charged with the offence having the lowest maximum penalty. The amendments also clarified and tightened the leave criteria for cross-examination at committal hearings, inserting s 124A and amending s 132 and s 198A.

The Act's provisions on cross-examination at committal hearings have generated significant controversy and litigation. Section 123, introduced by the 2018 amendments and strengthened in 2022 and 2025, prohibits any cross-examination in proceedings for sexual offences, family violence offences and stalking. Section 124 imposes a strict leave requirement for other proceedings, requiring the court to be satisfied that cross-examination is directly and substantially relevant to an identified issue and that there are substantial reasons in the interests of justice. The 2025 amendments removed the former requirement that the court consider whether cross-examination would be likely to clarify matters relevant to a potential plea of guilty or discontinuance of prosecution (s 124(4)(e), (f) were amended, not removed, see the source text). The abolition of the common law Basha procedure by s 198C means that accused cannot cross-examine witnesses at pre-trial hearings as of right to prepare their defence.

The course of conduct charge provisions in Schedule 1, clause 4A have been the subject of judicial scrutiny. The provision allows a single charge to encompass multiple incidents over a specified period, reducing the need for multiple charges and the associated procedural complexity. The provision was designed to address difficulties in prosecuting historical sexual offences and offences involving a pattern of conduct. The Act provides that an acquittal on a course of conduct charge does not constitute a previous acquittal on an alternative charge for a specific incident (Schedule 1, cl 5(4)).

The double jeopardy exceptions in Chapter 7A have been contentious as they permit retrial after acquittal in limited circumstances. The Act permits retrial where an acquittal was tainted by an administration of justice offence (s 327L), where there is fresh and compelling evidence in relation to certain serious offences including murder, manslaughter, rape and large commercial drug trafficking (s 327M), and where fresh evidence shows an administration of justice offence (s 327N). The police may reinvestigate only with DPP authorisation, except in urgent circumstances (s 327E). The provisions were introduced to address cases where compelling new evidence emerges after an acquittal, particularly in homicide and serious sexual offence cases.

The interface between the Act's disclosure regime and claims of public interest immunity has been the subject of judicial consideration. The non-disclosure order provisions (s 416A to s 416C) provide a statutory mechanism for seeking court orders preventing disclosure, supplementing the common law. The Act provides that a non-disclosure order made in a committal proceeding is not binding on a trial court or appeal court (s 416B), reflecting that disclosure decisions may need to be revisited as the proceeding progresses.

Time limits are strict and carry significant consequences. A notice to appear lapses if the charge-sheet is not filed within 14 days after service (s 22(1)). A preliminary brief must be served within 21 days after filing the charge-sheet where a notice to appear has been used (s 24). A hand-up brief must be served at least 42 days before the committal mention hearing unless the court fixes another period or the accused consents in writing (s 108(1)). Failure to comply does not always invalidate the proceeding, but an informant who does not comply risks orders compelling compliance, adjournments and costs.

Service requirements are technical and practitioners must ensure compliance with the specific method prescribed for each document. Personal service is required for most key documents, including summonses (s 16) and notices of direct indictment (s 171(2)). Ordinary service may be used for a summons for a summary offence only if the informant is satisfied it is appropriate in the circumstances, having regard to the nature and gravity of the offence, the accused's criminal history and the currency of the address (s 17(2)). Service by post to a post office box is available for traffic camera offences only (s 394(1)(ab)). Failure to serve properly may result in the court declining to proceed.

The consequences of failing to appear are severe. If the accused does not appear on a summary offence and the court proceeds in their absence, the court must not impose a custodial order (s 87(1)), and fines are capped at 50 penalty units in aggregate if the matter proceeded on a preliminary brief (s 87(2)). However, the accused loses the right to cross-examine witnesses and challenge the prosecution case if they do not appear (s 83, s 84). The accused may apply for a rehearing, and a rehearing is automatic if the charge-sheet was served by ordinary service and the court is satisfied it was not brought to the accused's notice (s 94(1)).

The requirement for full compliance with disclosure obligations extends to material that undermines the prosecution case or assists the defence. The full brief must include any information, document or thing that might reasonably be expected to undermine the prosecution case or assist the case for the accused (s 41(3), s 110(2)). This is a statutory codification of the common law duty and must be taken seriously. The disclosure certificate must identify material not disclosed and the basis for non-disclosure. Failure to do so risks the court making adverse findings and costs orders.

The prohibition on cross-examination in s 123 is absolute for the proceedings it covers. The Magistrates' Court must not grant leave to cross-examine any witness in a proceeding relating wholly or partly to a charge for a sexual offence, a family violence offence or stalking. This applies regardless of the circumstances. The only avenue for pre-trial cross-examination in such matters is an application under s 198A for an order to cross-examine witnesses other than complainants, and the court must be satisfied that cross-examination is directly and substantially relevant and that there are substantial reasons in the interests of justice.

The presumption of bail under s 327G for accused charged following a double jeopardy application is a notable exception to the usual bail framework. An accused in custody following the filing of a direct indictment under Chapter 7A is presumed to be released on bail regardless of the offence charged, pending the DPP's application to the Court of Appeal or discontinuance. This overrides the usual presumption against bail for serious offences.

Practitioners advising informants or prosecutors should ensure that disclosure obligations are met strictly and on time. A preliminary brief should be served as soon as practicable after the charge-sheet is filed, particularly where a notice to appear has been used. The full brief must be requested by the accused in writing (s 39(1)), and service must occur at least 14 days before the contest mention hearing or summary hearing (s 39(2)). The disclosure certificate under s 41A must be completed, filed with the registrar within seven days of service and served on the accused at the same time as the full brief. For hand-up briefs, the same timetable applies (s 110A). The informant must also comply with the obligation to disclose all relevant material to the DPP under s 415A, identifying any material subject to privilege or statutory prohibition.

The informant must nominate an address for service under s 18. This should be done on the charge-sheet or a document served with it. The accused's legal practitioner, where authorised, should accept service and provide contact details to facilitate electronic service.

At the first mention hearing, the informant, if a police officer, must have the preliminary brief, full brief, or at least the charge-sheet, statement of alleged facts and criminal record available for the accused (s 53A). Failure to do so may result in adjournment.

In committal proceedings, the hand-up brief must be served at least 42 days before the committal mention hearing (s 108(1)). The case direction notice must be jointly filed by the accused and the DPP or informant at least seven days before the committal mention hearing (s 118(1)). The notice must specify any witnesses the accused intends to cross-examine and the issues for which leave is sought (s 119(c)). Practitioners should ensure the notice is filed even if the accused is unrepresented; the DPP or informant must file it regardless (s 118(2)).

For trials on indictment, the DPP must serve the summary of prosecution opening and notice of pre-trial admissions at least 28 days before the trial date (s 182(1)). The accused must serve their response at least 14 days before trial (s 183(1)). The accused must also give notice of alibi within 14 days after committal or receipt of the indictment (s 190(2)), and notice of expert evidence at least 14 days before trial (s 189(1)). Failure to give notice does not automatically exclude the evidence, but the court's leave will be required (s 190(1)).

Applications for sentence indication must be made by the accused, not the prosecution (s 208(1)(a)). The indication relates to charges specified in the application. If the accused pleads guilty at the first available opportunity, the court is bound not to impose a more severe sentence than indicated (s 209(1)). However, the court may refuse to give an indication if there is insufficient information about victim impact (s 208(5)).

Appeals must be commenced within strict time limits. An appeal from the Magistrates' Court to the County Court under s 254 must be filed within 28 days after sentence (s 255(1)). A notice of appeal filed late is deemed an application for leave to appeal, which may be granted only if the failure was due to exceptional circumstances and the respondent would not be materially prejudiced (s 263(2)). An appeal to the Court of Appeal against conviction or sentence must be commenced within 28 days after sentence (s 275(1), s 279(1)). The operation of a sentence is not stayed automatically during the appeal period; a stay requires an application to the trial judge or Court of Appeal (s 309).

Finally, practitioners should be aware of the transitional provisions in Chapter 10. The 2025 committal reforms apply only to committal proceedings commenced on or after their commencement date. The 2022 disclosure certificate provisions apply to proceedings commenced on or after that date. Practitioners must check whether the matter commenced before or after each relevant amending Act to determine which version of the Act applies. Section 463 of the Act contains specific transitional provisions for each part of the 2025 reforms.