This Regulation sets detailed procedures, forms, fees and program rules used in criminal proceedings in New South Wales. It works by prescribing what court actors must file or notify, timelines for doing so, standard forms, how certain evidence and witness statements are handled, the amounts and administration of court fees, and two court‑supervised intervention programs.
Key things the Regulation does (mechanically):
Requires lawyers to file notices of appearance and ceasing to act and requires registrars to forward copies to prosecution and listing authorities (clause 5).
Gives the Criminal Listing Director power to seek information to arrange listings and to control what information is shared between prosecutors and accused persons (clause 4).
Fixes timelines for transcripts and requires prosecutors to notify the Listing Director if transcripts are late (clause 6).
Requires prosecutors to give a "notice of readiness" with a draft indictment and sets notice and drafting procedures (clause 7) and sets time limits for stay/demurrer listings after draft indictment is given (clause 8).
Prescribes standard written and oral explanations for committal proceedings and the form and content of charge certificates and case conference certificates (clauses 9A, 9B, 9D, 9G and Schedule 1 Forms 1A/1B).
Sets rules for written witness statements used in committals: required endorsements, signing, presumptions about age/language/signatures, and restrictions on disclosing contact details in served copies (clauses 9H–9M, especially 9I–9J).
The Criminal Procedure Regulation 2017 (the Regulation) is subordinate legislation made under the Criminal Procedure Act 1986 (the Act). Its core function is to supply the operational machinery that the Act contemplates but does not itself spell out. Clause 1 simply names it; clause 2 fixes its commencement on 1 September 2017 and records that it repealed the 2010 version.
Part 2 (cll 4–9) regulates the listing of criminal proceedings. The Criminal Listing Director may direct prosecutors, accused persons, their lawyers or registrars to supply information “that the Director reasonably requires” (cl 4(1)). Notices of appearance and ceasing to act must be filed in approved form (cl 5). Prosecutors must notify delays in receiving Local Court transcripts within strict time limits—two weeks if the accused is under 21 and in custody, otherwise four weeks (cl 6). Once the Crown is ready, a notice of readiness accompanied by a draft indictment must be filed (cl 7). Applications to stay or quash an indictment must ordinarily be filed within one month (custody) or three months (otherwise) of the draft indictment being served (cl 8). The Listing Director then notifies the registrar, who serves the parties (cl 9).
Part 2A, inserted in 2018, radically reformed committal proceedings. Clause 9A prescribes the exact oral explanation a magistrate must give an accused about charge certificates, case conferences (if legally represented), the plea process, committal for trial or sentence, and statutory sentencing discounts under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999. Clause 9B supplies the parallel written explanation, which must be given under s 59(3) of the Act. Only certain prosecutors may exercise charge-certificate and case-conference functions (cl 9C). The charge certificate must be in Form 1A (cl 9D). Accused persons must be available to give instructions during case conferences; support persons and interpreters must be arranged where appropriate (cll 9E–9F). Case conference certificates must be in Form 1B and may contain additional prescribed matters (cl 9G).
Current sections
Direct links to the current provisions in Criminal Procedure Regulation 2017.
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Establishes a court costs levy amount of $85 (clause 10) and prescribes certain convictions as exempt from this levy (clause 11).
Lists all payable court and Sheriff fees, explains who pays and when, allows registrars and the Sheriff to waive/remit/postpone fees, and postpones fees for legally assisted persons until judgment (clauses 12–18; Schedule 2; clauses 16–17).
Indexes many fees annually to the Consumer Price Index (fee unit calculation and rounding rules appear in Schedule 2, Part 3) and requires the Secretary to notify Parliament and publish indexed fee amounts (Schedule 2, Part 3, clauses 1–4).
Prescribes procedures when recorded interviews of vulnerable persons or complainants will be adduced: prosecution must notify, the accused may request access, and responsible persons must make recordings available within specified periods (Part 5: clauses 19–22 and clauses 26–27).
Sets evidentiary forms and processes (e.g. notice of intention to adduce mental impairment evidence) and prescribes offences for which briefs of evidence are not required (clauses 23–25, 29–30).
Creates and describes the circle sentencing intervention program for specified Local Courts (Part 7). That Part:
declares the program an "intervention program" (clause 31), defines eligibility (only Aboriginal persons who are offenders meeting criteria) and the program measures (agreement, circle sentencing group, intervention plan and recommended sentence) (clauses 32, 39–41).
requires the Minister to establish local Aboriginal Community Justice Groups and to appoint members on the Program Officer’s recommendation (clauses 51–52).
sets how Program Officers convene groups, who is included, decision and record‑keeping procedures, confidentiality and non‑admissibility of what is said in group meetings, and penalties for unauthorised disclosure (clauses 36–49, 56–58).
Creates a traffic offender intervention program run by the Local Court (Part 9). The Secretary approves "approved traffic courses" (only courses run by associations, government agencies or registered not‑for‑profit entities can be approved) and may issue guidelines; providers must report on attendance and compliance (clauses 96–106).
Prescribes qualifications, removal powers and oath/affirmation forms for witness intermediaries used in child sexual offence proceedings (clauses 109–111).
Declares certain public bodies and prescribes when their officers are not "public officers" for specific Act provisions (clause 113) and prescribes various other specialist forms (Schedule 1) and agencies required to pay fees (Schedule 3).
Who pays and who decides (direct mechanisms):
Fees: payable by the person who requests filing or service; court filing fees go to the registrar, Sheriff’s fees to the Sheriff or registrar; agents and principals are jointly liable (clauses 14–15; Schedule 2).
Court costs levy: a fixed $85 (clause 10).
Certain NSW government agencies and statutory bodies are specifically required to pay court fees in defined circumstances (Schedule 3; clause 18).
The Criminal Listing Director manages listing information and receives notices of readiness and transcript delays (clauses 4, 6–9).
The Minister, Secretary and Program Officers exercise administrative discretions: Minister issues guidelines and establishes Aboriginal Community Justice Groups (clauses 51, 56); Secretary approves traffic courses and issues guidelines for the traffic program and for witness intermediary panels (clauses 104, 106, 109); Program Officers convene groups and may assess suitability where a local group cannot be convened in time (clauses 36–38, 55).
Registrars and the Sheriff can waive, postpone or remit fees subject to any Attorney General guidelines (clause 16).
Stated purposes and how the text implements them (with practical tests against trade‑offs):
The Regulation frequently states purposes (for example, reducing police time producing full statements in minor summary matters (clause 25(1)); setting out objectives for the circle sentencing and traffic programs (clauses 39 and 100)). Those purpose statements are implemented by procedural rules and exemptions (e.g. allowing short briefs for non‑material witnesses and summaries to replace full statements (clause 25(3)–(4))). The concrete trade‑off is explicit: the court must balance the aim to reduce time against fairness and the accused’s need for material (clause 25(5)–(6) gives the court power to order service of omitted material if it assists preparation and the court is to give reasons).
The circle sentencing program’s objective list (clause 39) is implemented by a multi‑party meeting model (clauses 41–44), with confidentiality/immunity rules to protect communications (clauses 57–58). This creates an administrative structure (Minister appoints Groups; Program Officers convene) that requires ongoing administrative resources (clauses 51, 55). The text recognises an implementation fallback where a Group cannot be convened in time and allows the Program Officer to assess suitability (clause 38).
For the traffic program, the Secretary’s approval power (clause 104) constrains who may supply court‑approved courses: only associations, government agencies or registered not‑for‑profits may be approved (clause 104(2)(a)). That is a concrete eligibility rule affecting which providers can participate. Providers must report compliance to the court in a form approved by the Secretary (clauses 102–103).
Costs, incentives and compliance burdens (concrete mechanisms):
Filing and service fees are charged per Schedule 2; many fees are expressed in fee units and will change annually by a CPI formula (Schedule 2 Part 3, clause 2). This creates a recurring cost to private litigants and agencies that request filings or services (clauses 12–15; Schedule 2).
Administrative burden: many mandatory filings and notices (e.g. notice of readiness with a draft indictment (clause 7), defense/prosecuting authority notices about recorded interviews (clause 20–21), transcript delay notices (clause 6), and standard forms for committal and case conferences (Schedule 1)). Failure to comply can affect listing and timetabling (clause 6(3), clause 7).
Confidentiality rules and non‑admissibility rules (clauses 57, 107) limit the use and disclosure of statements and what is said in program meetings; there are criminal penalties for unauthorised disclosure in some parts (clause 58(1) and clause 108(1) set maximum penalties of 20 penalty units). These rules change evidential access and create compliance obligations for participants and providers.
Bureaucratic discretion: Minister/Secretary powers (guidelines, course approvals and appointments) and Registrar/Sheriff waiver powers mean administrative actors make significant decisions with limited legislative parameters (clauses 16, 51–56, 104–106, 118).
Risks, substitution effects and implementation notes grounded in the text:
Where local Aboriginal Community Justice Groups are small or unavailable, the Program Officer has operational discretion to assess suitability instead, but that shifts decision‑making from a community panel to an administrative officer (clause 38).
The traffic program limits approved providers to not‑for‑profit or government entities unless otherwise approved (clause 104(2)(a)), which concretely excludes commercial for‑profit course providers from approval unless they satisfy the specified organisational forms.
Annual CPI indexing of fee units uses a formula with historical base CPI (Schedule 2, Part 3, clause 2) and minimum‑floor protection (clause 2(3)). That makes fees predictable mechanically but requires the Secretary/Parliamentary Counsel to publish updated figures each year (clause 4).
Where the Regulation leaves important choices to administrators: the Regulation delegates many specifics to guidelines or delegated orders — for example, the Minister or Secretary may issue guidelines about group constitution and course content (clauses 56, 106) and the Secretary approves traffic courses by Gazette order (clause 104). Those delegated instruments are the places where operational detail will be filled in.
Primary legal references inside the Regulation: clause and schedule numbers cited above identify the precise rule text (for example, requirements about charge certificates and case conference certificates are in Schedule 1 Forms 1A and 1B and clauses 9D and 9G).
Division 2 of Part 2A (cll 9H–9M) sets out mandatory formalities for written statements tendered in committal proceedings. Statements must carry a precise endorsement (cl 9I), must not disclose addresses, dates of birth or phone numbers unless materially relevant or ordered by a magistrate (cl 9J), and must be signed by the maker or another person in the maker’s presence (cl 9K). Presumptions as to age, language competence, translation accuracy and signatures operate unless the contrary is proved (cll 9L–9M). These provisions implement the reforms that replaced traditional committal hearings with a paper-based charge-certificate and case-conference model.
Part 3 imposes a court costs levy of $85 on convictions (cl 10) but exempts convictions recorded before 13 May 2013 (cl 11). Part 4 and Schedule 2 prescribe court and sheriff fees, expressed in fee units that are indexed annually by reference to the Sydney CPI (cll 12–18, Sch 2 Pt 3). Registrars and the Sheriff may waive, postpone or remit fees according to Attorney General guidelines; legally assisted persons enjoy postponement and potential remission (cll 16–17). Certain NSW government agencies listed in Schedule 3 must still pay fees.
Part 5 governs access to recorded interviews with vulnerable persons. Prosecuting authorities must give defence notice of intention to tender such recordings at least 14 days before evidence is given (cl 20). Defence may then request access, which must be given within seven days (cll 21–22). The provisions protect the integrity of s 306V of the Act.
Part 6 deals with evidentiary matters. Notice of intention to rely on substantial mental impairment at a murder trial must be given in Form 1 at least 35 days before trial (cl 23). Certain low-level offences are exempt from full briefs of evidence (cl 24). “Short briefs” may omit statements of non-material witnesses provided a summary list is included; courts may order full statements on application (cl 25). In sexual-assault retrials, prosecutors must notify intention to tender the original complainant’s recorded evidence and facilitate defence access (cll 26–27). Family members’ compellability in domestic-violence or child-assault cases requires a magistrate or judge to record reasons in Form 2 before excusing a witness (cl 28). Depositions of dangerously ill persons must be taken in Form 3 (cl 29). Authorised classifiers of child-abuse material are prescribed (cl 30).
Part 7 establishes the circle sentencing intervention program for Aboriginal offenders in nominated Local Court locations (currently Armidale, Bourke, Brewarrina, Dubbo, Kempsey, Lismore, Mount Druitt, Nambucca, Nowra and Walgett). The program is declared an “intervention program” under s 347 of the Act (cl 31). Eligibility is narrow: the offender must be Aboriginal, assessed as suitable by an Aboriginal Community Justice Group (or Program Officer if the Group cannot convene), enter an agreement, and face a sentence that is likely to involve imprisonment, a community correction order or a conditional release order (cl 40). The process involves suitability assessment (cll 35–38), convening a circle sentencing group that includes the magistrate, prosecutor, defence lawyer, Program Officer and at least three Aboriginal community members (cl 43), determination of a treatment/rehabilitation plan and recommended sentence (cl 44), and court endorsement. Strict confidentiality applies to statements made in circles or suitability meetings (cll 57–58). The Minister may issue guidelines (cl 56).
Part 9 creates the traffic offender intervention program. Eligible traffic offenders may be referred to an approved traffic course whose content and delivery must comply with Secretary-issued guidelines (cll 104–105). Providers must report compliance to the Local Court (cl 102) and keep records (cl 103). Statements made during courses are inadmissible except in the instant proceedings (cl 107); identifying information may not be disclosed (cl 108, 20 penalty units).
Part 10 prescribes qualifications for witness intermediaries (tertiary qualification plus Department training—cl 109), the Secretary’s power to suspend or revoke inclusion on the panel (cl 110), and the oath or affirmation they must take (cl 111).
Part 11 contains miscellaneous provisions: prescribed public officers and bodies (cl 113), forms for certificates that no further proceedings will be taken (cl 114), offences outside District Court jurisdiction (cl 115), subpoena rules in AVO matters (cl 116), election forms for indictable offences (cl 117), delegation powers (cl 118), and extensive savings and transitional clauses (cll 119–120, including preservation of pre-2018 committal procedures).
Schedules 1–4 supply the mandatory forms, the detailed fee tables (indexed), the list of agencies that must pay fees, and the penalty-notice offence table (including knife-related offences and small-quantity drug possession).
In short, the Regulation is the procedural handbook that translates the Act’s framework into mandatory steps, timetables, forms, fee calculations, confidentiality obligations and culturally responsive sentencing options.
Who it affects
Prosecutors (including police, DPP, Commonwealth DPP and private prosecutors): obliged to file notices of readiness, draft indictments, charge certificates, case conference certificates, serve briefs or short briefs, notify transcript delays, give access to recorded interviews, and comply with disclosure verification statements (cll 6, 7, 9C, 9D, 20, 24–25).
Accused persons and appellants: must respond to listing directions, file notices of appearance, attend case conferences or be available by AVL/telephone, decide on pleas, elect for jury trial within time limits, and comply with intervention-program agreements (cll 4, 5, 9E, 9F, 40, 99, 117).
Australian legal practitioners: required to file appearance and cessation notices, participate in case conferences, explain sentencing discounts, sign case conference certificates, and maintain confidentiality (cll 5, 9B, 9G, 58, 108).
Criminal Listing Director and court registrars: manage listing information, serve notices, receive readiness notices and ensure procedural compliance (cll 4, 6, 7, 9).
Magistrates and judges: preside over circles, assess suitability for intervention programs, make orders about witness statements, record reasons for excusing family members, and apply the short-brief regime (cll 28, 37, 45, 48, 25).
Aboriginal Community Justice Groups and Program Officers: assess suitability, convene circles, recommend sentences and plans, and maintain confidentiality (Part 7, cll 36–38, 42–55).
Approved traffic course providers: deliver courses in accordance with guidelines, report compliance, keep records and observe non-disclosure rules (Part 9).
Witness intermediaries: must be qualified, take the prescribed oath/affirmation and communicate questions and answers accurately (Part 10).
Victims: may participate in circles or case conferences; their views must be heard; they receive information about outcomes (cll 47, 55, 9B).
NSW Government agencies listed in Schedule 3: must pay court fees despite Crown immunity arguments.
The Secretary of the Department of Communities and Justice: issues guidelines, approves traffic courses, indexes fees, manages the witness-intermediary panel and may delegate (cll 104, 106, 13A, 109–110, 118).
The Regulation therefore touches every participant in the criminal justice system from first charge to final sentence or acquittal.
Key duties and rights
Duties
Prosecutors must file accurate charge certificates certifying that evidence can establish each element (Form 1A, cl 9D) and engage in confidential case conferences (cl 9G).
Defence lawyers must explain the guilty-plea discount scheme and obtain their client’s acknowledgment (Part 6 of Form 1B).
Accused persons in custody must be made available for instructions by AVL or telephone (cl 9E(5)).
Circle-sentencing group members and traffic-course providers face 20-penalty-unit offences for unauthorised disclosure (cll 58, 108).
Registrars must serve notices “as soon as practicable” (cl 5(5), cl 9(2)).
Magistrates must give the exact oral and written explanations prescribed in cll 9A and 9B.
Rights
Accused persons have a statutory right to view or listen to recorded interviews within seven days of request (cl 22).
Victims who consent may participate in circle sentencing and must be given an opportunity to express their views (cl 47).
Eligible Aboriginal offenders have a structured right to be assessed for circle sentencing and to have community members participate in sentencing recommendations.
Legally assisted persons enjoy fee postponement or remission (cl 17).
Parties may object to particular community members sitting on a circle (cl 43(3)).
Courts retain discretion to order full witness statements even in a short-brief regime if it would assist the defence or the court (cl 25(5)–(6)).
The Regulation balances these duties and rights through tight timelines, prescribed forms and confidentiality sanctions.
Penalties and enforcement
Most obligations are enforced through case-management powers rather than direct criminal sanctions. Failure to comply with a listing direction attracts no separate penalty but may delay proceedings or found an adverse costs order. Breach of confidentiality in circle sentencing or traffic courses carries a 20-penalty-unit fine (cll 58, 108). The Regulation itself does not create new indictable offences; instead it supports the Act’s regime. Non-compliance with committal time limits or brief-service rules may result in the magistrate refusing to commit, adjourning, or making costs orders. Fee non-payment can be enforced as a judgment debt. The Secretary’s power to suspend or revoke witness intermediaries (cl 110) is an administrative enforcement mechanism. In practice, the strongest enforcement is judicial: a magistrate may terminate a circle if behaviour disrupts proceedings (cl 46) or may decline to follow a circle’s sentence recommendation.
How it interacts with other laws
The Regulation is expressly made under the Act and must be read with it (cl 3(1) definition of “the Act”). It cross-references the Crimes (Sentencing Procedure) Act 1999 (sentencing discounts, intervention plans, community correction orders), the Crimes (Appeal and Review) Act 2001 (appeals and transcript obligations), the Interpretation Act 1987 (general interpretation), the Electronic Transactions Act 2000 (ECM system), the Legal Aid Commission Act 1979 and the Legal Profession Uniform Law (NSW) (legally assisted persons), and the Ombudsman Act 1974 (permitted disclosures). Part 7 operates only because s 347 of the Act permits regulations to declare intervention programs. The short-brief provisions in cl 25 rely on s 183(2) of the Act. Confidentiality provisions supplement the common-law implied undertaking and s 79 of the Act. Fee-indexation machinery implements s 4A of the Act. The Regulation therefore sits at the centre of a web of interlocking criminal-justice statutes and cannot be understood in isolation.
Recent changes and why
Since 2017 the Regulation has been amended more than a dozen times. The most significant was the 2018 insertion of Part 2A and cl 119A to give effect to the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. That reform replaced committal hearings with a charge-certificate and mandatory case-conference model to reduce delay and encourage early guilty pleas. In 2019 and 2022 the definition of “Department” was updated to “Department of Communities and Justice” and various forms and clauses were adjusted for the new discount scheme. The Justice Legislation Amendment (Fees) Regulation 2023 introduced annual CPI indexing of fee units (cl 13A, Sch 2 Pt 3) to maintain real value without repeated legislative amendment. Part 10 on witness intermediaries was expanded in 2023 (cll 109–111) following recommendations to improve communication with child witnesses. The 2023 amendments to circle-sentencing locations and transitional provisions (cll 33, 120) reflect ongoing efforts to expand Aboriginal justice programs. These changes respond to case-management statistics, Royal Commission into Aboriginal Deaths in Custody recommendations, and budgetary pressure on court resources.
Court challenges and controversies
Because the Regulation is procedural, direct constitutional challenges are rare. However, several practical controversies have arisen. Defence practitioners have challenged the adequacy of the prescribed oral explanation under cl 9A where an accused has cognitive impairment, arguing it fails to meet the “in or to the effect of” test in s 59(3) of the Act. In circle-sentencing matters, victims’ advocates have questioned whether the statutory confidentiality in cl 57 unduly limits later civil claims. The short-brief regime (cl 25) has produced disputes about whether a particular police officer is “non-material”; courts have emphasised the clause’s object of reducing police statement-writing time while still protecting the accused’s right to a fair hearing. The indexing of fees has been criticised by community legal centres as creating hidden barriers to justice, despite the waiver power in cl 16. No superior-court decision has struck down any clause, but the steady stream of amendment notes at the foot of clauses (e.g. cl 3 amended in 2019, 2022 and 2023) indicates that practical difficulties continue to surface and require legislative fine-tuning.
Gotchas
Most practitioners miss that the prescribed times in cl 8 for filing a stay application run from service of the draft indictment under cl 7(3) or (6), not from the filing of the actual indictment. Missing the one-month (custody) or three-month window can force an application for leave that is not guaranteed. Another trap is cl 9J: addresses, dates of birth and phone numbers must be redacted from copies of statements served on the accused unless a magistrate orders otherwise after weighing the interests of justice against safety risks; many police simply include them, risking suppression orders or aborted committals. In circle sentencing, the requirement that at least three Aboriginal community members sit (cl 43(1)(f)) is mandatory; a circle convened with only two is invalid and the process must restart. Traffic-course providers sometimes overlook that guidelines issued under cl 106 are legislative instruments; non-compliance can lead to revocation of approval under cl 104(4). The confidentiality offence in cl 58(1) applies to any information obtained “in connection with” the assessment or conduct of the program, not merely statements made inside the circle; casual conversations with Program Officers can trigger liability. Finally, the transitional clause 119A preserves the old committal regime for any offence where proceedings commenced before the 2018 changes—even if other charges in the same indictment were laid later. Identifying the correct regime requires careful examination of the court attendance notice dates.
How to comply
Practitioners should maintain a checklist keyed to the Regulation. Prosecutors must diarise the 14-day prosecuting-authority notice under cl 20 and the seven-day response window for defence access. When preparing a charge certificate, verify every element against the attached court attendance notices and complete the disclosure-verification paragraph. Defence lawyers must ensure their client signs Part 7 of Form 1B (where applicable) and that the client understands the exact discount percentages (25 %, 10 %, 5 %). For circle sentencing, contact the local Program Officer immediately upon a suitability assessment order; prepare the client for the cultural expectations of the group and advise that the magistrate is not bound by the group’s recommendation. Traffic-offender referrals require the court to specify an approved course; practitioners should check the current Gazette notice under cl 104 rather than assume a provider is still approved. When redacting witness statements, delete addresses, DOBs and phone numbers before service and keep a copy of the unredacted version for the court file. Fee waivers should be sought in writing with reference to the Attorney General’s guidelines; simply assuming Legal Aid status is insufficient—cl 17 requires judgment to have been given. Maintain separate files for case-conference negotiations because the certificate is admissible only on sentence or appeal. Finally, subscribe to the NSW legislation website alerts for amendments; the frequency of changes (especially to fees and forms) means a 12-month-old copy of the Regulation is already out of date. Compliance is achieved by treating the Regulation as a set of non-negotiable templates and deadlines rather than flexible guidelines.