These are the Federal Court (Criminal Proceedings) (Interim) Rules 2016.

1.02 Commencement

(1) Each provision of these Rules specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of these Rules	The day after these Rules are registered.	8 July 2016

Note: This table relates only to the provisions of these Rules as originally made. It will not be amended to deal with any later amendments of these Rules.

(2) Any information in column 3 of the table is not part of these Rules. Information may be inserted in this column, or information in it may be edited, in any published version of these Rules.

1.03 Authority

These Rules are made under the Federal Court of Australia Act 1976.

1.04 Application of these Rules and other Rules of the Court

(1) Unless the Court orders otherwise, these Rules apply to indictable primary proceedings and criminal appeal proceedings started in the Court on or after the commencement of these Rules.

Note: For summary prosecutions, see Division 34.2 of the Federal Court Rules 2011.

(2) The other Rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules, to indictable primary proceedings and criminal appeal proceedings started in the Court on or after the commencement of these Rules.

Example: The rules about service in Part 10 of the Federal Court Rules 2011 apply to indictable primary proceedings and criminal appeal proceedings, to the extent that those rules are relevant and not inconsistent with these Rules.

Division 1.2—General powers of the Court etc.

1.05 Dispensing with compliance with Rules

The Court may dispense with compliance with these Rules, either before or after the occasion for compliance arises.

1.06 Orders inconsistent with Rules

The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.

1.07 Exercise of Court’s power

The Court may, at any stage in indictable primary proceedings or criminal appeal proceedings, exercise a power mentioned in these Rules:

(a) on its own initiative; or

(b) on the application of a party to the proceedings.

Division 1.3—Interpretation

1.08 Definitions

In these Rules, a word or expression defined in Schedule 1 (the Dictionary) has the meaning given in the Dictionary.

Note 1: Each Schedule to these Rules forms part of the Rules—see section 13 of the Acts Interpretation Act 1901.

Note 2: A number of expressions used in these Rules are defined in the Act, including the following:

(a) criminal appeal proceedings;

(b) indictable primary proceedings;

(d) judgment;

(e) lawyer;

(f) proceeding.

Note 3: An example of the operation of a provision of these Rules is not exhaustive and may extend the operation of the provision—see section 15AD of the Acts Interpretation Act 1901.

1.09 References to forms

(1) In these Rules, a reference consisting of the word “Form” followed by “CP(I)” and a number is a reference to the form so numbered approved under subrule (2).

(2) The Chief Justice may approve a form for the purpose of a provision of these Rules.

Note: Approved forms are available on the Court’s website at http://www.fedcourt.gov.au.

Division 1.4—Documents

1.10 General provisions about documents

A document that is to be filed in indictable primary proceedings or criminal appeal proceedings must be in accordance with any approved form and the Court’s requirements.

Note: The Court’s requirements in relation to preparing and lodging documents are set out in practice notes issued by the Chief Justice.

1.11 Compliance with approved forms

A requirement in these Rules that a document be in accordance with an approved form is complied with if the document:

(a) is substantially in accordance with the approved form and any practice notes issued by the Chief Justice; or

(b) has only those variations that the nature of the case requires.

1.12 Titles of documents

(1) A document in indictable primary proceedings must include a title and details, in accordance with Form CP(I)1.

(2) A document in criminal appeal proceedings must include a title and details, in accordance with Form CP(I)2.

Part 2—Indictable primary proceedings

Division 2.1—Indictments and applications

2.01 Filing and form of indictment

Indictment must be filed by electronic communication

(1) An indictment that is to be filed in indictable primary proceedings must be filed by being lodged by electronic communication in accordance with paragraph 2.21(1)(d) of the Federal Court Rules 2011.

Note 1: For the time within which indictments must be filed, see section 23BF of the Act.

Note 2: The rules about lodging and filing documents in Division 2.3 of the Federal Court Rules 2011 apply to indictable primary proceedings to the extent that those rules are relevant and not inconsistent with these Rules.

Note 3: The prosecutor must retain the signed indictment so that it can be produced to the Court at arraignment—see rule 2.08.

Form of indictment

(2) An indictment must be in accordance with Form CP(I)3.

(3) An indictment must state the offence that the accused, or each accused, is alleged to have committed.

(4) A statement of an offence is sufficient if the statement:

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating the offence or in similar words; and

(5) An indictment need not deal with any exception, exemption, excuse, qualification or justification provided by the law creating the offence.

(6) If an indictment describes any person or thing, the description is sufficient if it describes the person or thing in a manner that indicates with reasonable clarity the person or thing.

Indictment information notice

(7) An indictment must be accompanied by an indictment information notice in accordance with Form CP(I)4.

2.02 Service of indictment and other documents

As soon as practicable after filing an indictment, the prosecutor must personally serve the accused with a stamped copy of each of the following:

(a) the indictment;

(b) the indictment information notice referred to in subrule 2.01(7);

2.03 Extension of time to file indictment

(1) An application, under subsection 23BF(6) of the Act, for an extension of time to file an indictment must be made by filing an application in accordance with Form CP(I)5.

Note: For the time within which the application may be made, see subsection 23BF(7) of the Act.

(2) The application must be accompanied by an affidavit stating:

(a) briefly, but specifically, the facts that support the application; and

(b) why the indictment cannot be filed within the time required by section 23BF of the Act.

(3) A copy of the committal order must be attached to the affidavit.

(4) An application for an order under subrule (1) may be made without notice.

(5) If:

(a) an extension of time is granted without notice to the accused; and

(b) an indictment is subsequently filed;

the accused may, within 28 days after the day the accused is served with a copy of the indictment, apply to the Court for an order setting aside the extension of time.

2.04 Accused to file notice of address for service

An accused who has been served with an indictment must, as soon as practicable, file a notice of address for service.

Note 1: The rules about address for service in Part 11 of the Federal Court Rules 2011 apply to indictable primary proceedings to the extent that those rules are relevant and not inconsistent with these Rules.

Note 2: The filing of a notice of address for service does not amount to a submission to the jurisdiction of the Court.

2.05 Form of application for order discharging accused

(1) An accused who wants an order discharging the accused under subsection 23BG(1) of the Act must file an application in accordance with Form CP(I)6.

(2) The application must be accompanied by an affidavit stating that no indictment has been filed within the time required by section 23BF of the Act.

(3) A copy of the committal order must be attached to the affidavit.

(4) The accused must serve a stamped copy of the application and the accompanying affidavit on the prosecutor at the address nominated by the prosecutor in the court in which the committal order was made.

2.06 Amending or replacing indictments

Amendments before the start of the trial

(1) If the prosecutor wants to amend an indictment in relation to an accused before the start of the trial, the prosecutor must:

(a) make the amendment on the indictment; and

(b) write the date of the amendment on the indictment; and

(c) file the amended indictment by lodging it by electronic communication in accordance with paragraph 2.21(1)(d) of the Federal Court Rules 2011; and

(d) serve a stamped copy of the amended indictment on the accused as soon as practicable after it is filed.

Note: An indictment may be amended under section 23BH, or to comply with an order under paragraph 23CP(2)(b), of the Act. Leave of the Court is required to amend an indictment under section 23BH of the Act if the 90 day period ending on the date set for the start of the trial has started.

Replacements before the start of the trial

(2) If the prosecutor wants to replace an indictment in relation to an accused before the start of the trial, the prosecutor must file a new indictment in accordance with rule 2.01.

Note: An indictment may be replaced under section 23BH of the Act. Leave of the Court is required to replace an indictment under section 23BH of the Act if the 90 day period ending on the date set for the start of the trial has started.

(3) The new indictment:

(a) must not:

(i) be described as a replacement indictment; or

(ii) include any reference to the replaced indictment; and

(b) must be accompanied by a document stating:

(i) that the new indictment replaces the replaced indictment; and

(ii) the date on which the replaced indictment was filed.

(4) The prosecutor must serve a stamped copy of the document referred to in paragraph (3)(b) on the accused with the stamped copy of the new indictment.

Amendments or replacements after the start of the trial

(5) If the prosecutor amends or replaces an indictment in relation to an accused after the start of the trial, the Court may give directions about filing and service of the amended or replaced indictment.

Note: Leave of the Court is required to amend or replace an indictment after the start of a trial—see subsection 23BH(2) of the Act.

Court may direct replacement indictment to be filed

(6) The Court may direct the prosecutor to file a new indictment instead of amending an indictment.

Division 2.2—Juries and arraignment

2.07 Form and service of summons for jury service

(1) A summons to a person under section 23DP of the Act to attend for jury service may be in accordance with Form CP(I)7.

(2) The summons must, unless the Court directs otherwise, be served on the person at least 21 days before the day the person is required to attend the Court.

2.08 Procedure for arraignment of accused

(1) If the prosecution of an accused is to proceed to trial, the following must occur after a jury is empanelled unless the Court directs otherwise:

(a) the prosecutor must produce the signed indictment to the Court;

(b) a copy of the indictment must be given to the jury;

(d) the accused must be directed to enter a plea to each count that relates to the accused.

(2) The reading of a count for the purposes of paragraph (1)(c) must not, unless the Court directs otherwise, include reading the information referred to in paragraph 2.01(4)(c) relating to the offence covered by the count.

(3) If the indictment replaces an earlier indictment in accordance with section 23BH of the Act, that fact must not be disclosed to the jury.

(4) The accused must be placed in the charge of the jury for trial in relation to a count in the indictment if, when directed by the Court, the accused:

(a) pleads not guilty to the count; or

(b) fails to enter a plea to the count; or

2.09 Form of oath or affirmation—juror, jury officer and assistant jury officer

(1) The form of an oath for a potential juror is:

“I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that I shall give a true verdict according to the evidence.”.

(2) The form of an affirmation for a potential juror is:

“I solemnly and sincerely declare and affirm that I shall give a true verdict according to the evidence.”.

(3) The form of an oath for a person appointed as a jury officer or assistant jury officer is:

“I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that I shall not allow anyone to speak to any juror concerning issues before the Court and that I shall not speak to any juror concerning issues in the trial before the Court.”.

(4) The form of an affirmation for a person appointed as a jury officer or assistant jury officer is:

“I solemnly and sincerely declare and affirm that I shall not allow anyone to speak to any juror concerning issues before the Court and that I shall not speak to any juror concerning issues in the trial before the Court.”.

Part 3—Criminal appeal proceedings

3.01 Directions

(1) A party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of criminal appeal proceedings.

(2) Without limiting subrule (1), a party may apply to the Court for a direction relating to any of the following:

(a) granting an extension of time within which to appeal;

(b) giving leave to amend the grounds of appeal;

(d) making an interlocutory order pending, or after, the determination of an appeal to the Court;

(e) making an order by consent disposing of an appeal;

(f) dismissing an appeal for want of prosecution;

(g) vacating a hearing date;

(h) making an order that an appeal to the Court be dismissed for:

(i) failure to comply with a direction of the Court; or

(ii) failure of the appellant to attend a hearing relating to the appeal;

(i) the conduct of the appeal including:

(i) the contents of the appeal book; and

(ii) the use of written submissions; and

(iii) limiting the time for oral argument.

Note: The rules about appeals in Parts 35 and 36 of the Federal Court Rules 2011 apply to criminal appeal proceedings to the extent that those rules are relevant and not inconsistent with these Rules.

Part 4—Bail

4.01 Bail application

(1) An application for bail under section 58DA of the Act may be made:

(a) in writing; or

(b) if leave is given—orally at a hearing of the Court.

(2) A written application must be made by filing an application in accordance with Form CP(I)8.

(3) A written application must be accompanied by an affidavit that complies with any practice note dealing with applications for bail.

Note: A copy of any practice notes may be obtained from the District Registry or downloaded from the Court’s website at http://www.fedcourt.gov.au.

(4) Any additional material the accused relies on in support of the application must be attached to the affidavit.

(5) If an application is made in writing, a stamped copy of the written application and the accompanying affidavit must be served on the prosecutor at least 2 days before the hearing of the application.

4.02 Application to vary or revoke bail order

(1) An application under paragraph 58EA(1)(b) of the Act for a bail order to be varied or revoked on the basis that the accused has failed to comply with the accused’s bail undertaking must be made by filing an application in accordance with Form CP(I)9.

Note: If such an application is made, the Court must cause the accused to be brought before the Court—see subsection 58EA(2) of the Act.

(2) The application must be accompanied by an affidavit stating briefly, but specifically, the facts that support the application.

(3) As soon as practicable after the application is filed, the prosecutor must serve a stamped copy of the application and the accompanying affidavit on the accused.

4.03 Requirements for dealing with money or other property deposited as security for bail

(1) If money is deposited with the Court as security in accordance with a condition of bail, the money must, subject to subrule (2), be paid into the Litigants Fund.

(2) The Court may, on application by an accused, order that money deposited with the Court as security in accordance with a condition of bail be paid, credited or applied in a manner other than by payment into the Litigants Fund.

(3) If property other than money is deposited with the Court as security in accordance with a condition of bail, the property must be dealt with in accordance with a direction of the Court or a Registrar.

Note 1: Subsection 58DC(3) of the Act provides that money or other property deposited with the Court, or otherwise provided, as security in accordance with a condition of bail must be dealt with by the Court in accordance with the Rules of Court.

Note 2: Section 58GD of the Act deals with the return of security provided for an accused’s bail when bail ends.

4.04 Requirements for bail undertaking

(1) For paragraph 58DE(1)(a) of the Act, a bail undertaking:

(a) must be in accordance with Form CP(I)10; and

(b) must be signed by the accused before:

(i) the Judge who granted the bail; or

(ii) a Registrar.

(2) The person before whom the accused signs the bail undertaking must take reasonable steps to ensure that the accused is aware of:

(a) the obligations of the accused under the bail undertaking; and

(b) if the bail order has been granted subject to conditions—the consequences that may follow if the accused does not comply with the conditions.

(3) For the purposes of subrule (2), a person takes reasonable steps in relation to a bail undertaking if the person:

(a) reads the bail undertaking to the accused, and asks the accused if he or she understands the undertaking; or

(b) arranges for the bail undertaking to be read to the accused in a language the accused understands, and arranges for the accused to be asked if he or she understands the effect of the undertaking; or

4.05 Requirements for third party security undertaking

(1) For paragraph 58DE(1)(b) of the Act, a third party security undertaking in relation to an accused’s bail:

(a) must be in accordance with Form CP(I)11; and

(b) must be signed by the third party before:

(i) the Judge who granted the bail; or

(ii) a Registrar.

(2) The person before whom the third party signs the undertaking must take reasonable steps to ensure that the third party is aware of:

(a) the obligations of the third party under the undertaking; and

(b) if the bail order has been granted subject to conditions—the consequences to the third party that may follow if the accused does not comply with the conditions.

(3) For the purposes of subrule (2), a person takes reasonable steps in relation to a third party security undertaking if the person:

(a) reads the undertaking to the third party, and asks the third party if he or she understands the undertaking; or

(b) arranges for the undertaking to be read to the third party in a language the third party understands, and arranges for the third party to be asked if he or she understands the effect of the undertaking; or

4.06 Notice of proposed forfeiture—form of application

(1) An application under subsection 58FB(1) of the Act for a direction under subsection 58FB(2) of the Act in relation to an accused’s bail undertaking must be made by filing an application in accordance with Form CP(I)12.

(2) The application must:

(a) be accompanied by the following:

(i) a copy of the bail undertaking;

(ii) a draft direction in accordance with Form CP(I)13;

(iii) a draft notice under subsection 58FB(2) of the Act;

(iv) a copy of any third party security undertaking made in relation to the accused’s bail;

(v) an affidavit stating briefly, but specifically, the facts that support the application; and

(b) state the particulars (including name and address) of any person who the prosecutor considers may have an interest in security provided for the accused’s bail.

(3) The application may be made without notice.

4.07 Form of notice of proposed forfeiture

A notice under subsection 58FB(2) of the Act in relation to an accused’s bail undertaking must:

(a) be in accordance with Form CP(I)14; and

(b) be accompanied by:

(i) a copy of the bail undertaking; and

(ii) a copy of any third party security undertaking made in relation to the accused’s bail.

4.08 Objection to forfeiture

(1) An objection filed in accordance with subsection 58FC(3) of the Act must be in accordance with Form CP(I)15.

(2) An objection filed in accordance with subsection 58FC(3) of the Act must contain the following particulars:

(a) the name and address of the person filing the objection;

(b) details of the interest, if any, the person has in security provided for the accused’s bail;

(c) if the person considers that the Court should not make the relevant forfeiture order—the reason or reasons why the person thinks the Court should not make the order;

(d) if the person considers that the Court should reduce the amount of security that will be forfeited—the reason or reasons why the person thinks the amount should be reduced.

(3) If a person files an objection (the first objection) to the forfeiture of security provided for an accused’s bail in accordance with subsection 58FC(3) of the Act, the Court may:

(a) give a copy of the first objection to the prosecutor and any other person (the other objector) who has also filed, in accordance with that subsection, an objection to the forfeiture of the security; and

(b) invite the prosecutor and the other objector to respond to the first objection within the time specified in the invitation.

(4) If a person (the first person) makes written submissions in response to an invitation of the Court under subsection 58FC(3) of the Act, the Court may:

(a) give a copy of the submissions to the prosecutor and any other person who has made written submissions in response to an invitation under that subsection; and

(b) invite the prosecutor and the other person to respond to the first person’s submissions within the time specified in the invitation.

Part 5—Other matters

5.01 Interlocutory applications

Absence of party

(1) An interlocutory application may be heard and determined in the absence of a party if:

(a) the application has been served on the party; and

(b) the party does not appear.

Interlocutory applications if no approved form

(2) Subrules (3) and (4) apply if:

(a) a party wants to make an interlocutory application in indictable primary proceedings or criminal appeal proceedings; and

(b) these Rules do not otherwise provide for the application to be made in accordance with a particular approved form.

(3) The application may be made:

(a) by filing an application in accordance with Form CP(I)16, accompanied by an affidavit stating briefly, but specifically, the facts that support the application; or

(b) subject to any other provision of these Rules—orally at a hearing of the Court.

Note: When the application is filed, a Registrar will fix a return date and place for hearing and endorse those details on the application or an accompanying notice.

(4) If an application is made in accordance with paragraph (3)(a), the party filing the application must serve a stamped copy of the application and the accompanying affidavit on any other party to the proceedings at least 3 days before the date fixed for the hearing of the application.

5.02 Summons to appear before the Court

(1) A summons requiring a person to appear before the Court may be in accordance with Form CP(I)17.

(2) The summons must be served personally on the person at least 5 days before the day the person is required to appear before the Court.

(3) To avoid doubt, this rule does not apply in relation to a summons to a person to attend for jury service.

5.03 Order that a person in custody be brought before the Court

An order that a person in custody be brought before the Court may be in accordance with Form CP(I)18.

5.04 Warrant for arrest

A warrant for arrest may be in accordance with Form CP(I)19.

5.05 Warrant for imprisonment

If the Court makes an order that a person be imprisoned, a Judge may issue a warrant in accordance with Form CP(I)20.