Criminal Amendment Rules 20126 August 2012
We, the Honourable Ewan Charles Crawford, Chief Justice, and the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, the Honourable Shan Eve Tennent, the Honourable David James Porter and the Honourable Helen Marie Wood, Puisne Judges of the Supreme Court of Tasmania, make the following Rules of Court under the Criminal Code Act 1924 .
These Rules of Court may be cited as the Criminal Amendment Rules 2012 .
These Rules of Court take effect on whichever of the following is the later:(a) the day on which section 3 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth commences;(b) the day on which the making of these Rules of Court is notified in the Gazette.
In these Rules of Court, the Criminal Rules 2006 are referred to as the Principal Rules.
4. Part 5A inserted
After rule 36 of the Principal Rules , the following Part is inserted:PART 5A - Subpoenas under the Trans-Tasman Proceedings Act 2010(1) In this Part –addressee means the person named in a subpoena to be served in New Zealand under this Part;Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 of the Commonwealth.(2) Unless the contrary intention appears, an expression used in these rules has the same meaning as it has in the Trans-Tasman Proceedings Act.This Part applies to criminal proceedings in which an order under Part 5 of the Trans-Tasman Proceedings Act is made or sought.36C. Proceedings under the Trans-Tasman Proceedings Act
A party to a proceeding to which this Part applies must comply with –(a) this Part; and(b) these rules that are relevant to, and consistent with, this Part.36D. Subpoenas issued under this Part
A subpoena issued under this Part must be issued in the form of a final notice issued under section 10 of the Criminal Procedure (Attendance of Witnesses) Act 1996 with such modifications or additions as are necessary to comply with the Trans-Tasman Proceedings Act.36E. Application for leave to serve subpoena in New Zealand
(1) In any criminal proceedings in the Court, a person may apply to the Court for leave to serve a subpoena in New Zealand.(2) An application under subrule (1) must be accompanied by –(a) a copy of the subpoena in relation to which the leave is sought; and(b) an affidavit stating, briefly but specifically, the following matters:(i) the name, occupation and address of the addressee;(ii) whether or not the addressee has attained the age of 18 years;(iii) the nature and significance of the evidence to be given, or the document or thing to be produced, by the addressee;(iv) details of the steps taken by the applicant to ascertain whether the evidence, document or thing is able to be obtained by other means without significantly greater expense, and with less inconvenience to the addressee;(v) the date by which it is intended to serve the subpoena in New Zealand;(vi) details of the amounts to be tendered to the addressee to meet the addressee's reasonable expenses of complying with the subpoena;(vii) details of the way in which the amounts mentioned in subparagraph (vi) are to be given to the addressee;(viii) if the subpoena requires the addressee to give evidence, an estimate of the time that the addressee will be required to attend Court to give the evidence;(ix) any facts or matters known to the applicant that may be grounds for an application by the addressee to have the subpoena set aside under section 36(2) or (3) of the Trans-Tasman Proceedings Act.(3) Before granting leave to serve a subpoena under the Trans-Tasman Proceedings Act, the Court may require the applicant to make an undertaking that he or she will meet the reasonable expenses incurred by the addressee in complying with the subpoena if the expenses are likely to exceed the amounts to be tendered to the addressee as specified in the affidavit accompanying the subpoena.36F. Application to set aside subpoena under this Part
(1) An addressee may apply to the Court to set aside a subpoena that was applied for under this Part and served in New Zealand.(2) An application under subrule (1) must be accompanied by –(a) a copy of the subpoena; and(b) an affidavit stating –(i) the material facts on which the application is based; and(ii) whether the addressee requests that any hearing be held by audio link or by audio visual link.36G. Application if issue of certificate of non-compliance with subpoena
(1) A party to criminal proceedings may apply to the Court for the issue, under section 38 of the Trans-Tasman Proceedings Act, of a certificate of non-compliance with a subpoena issued in respect of the proceedings.(2) An application under subrule (1) may be made –(a) if the proceeding in which the subpoena was issued is before the Court, orally to the Court; or(b) by filing an application in the proceeding.(3) An application under subrule (1) must be accompanied by –(a) a copy of the subpoena; and(b) a copy of the order, under section 31 of the Trans-Tasman Proceedings Act, giving leave to serve the subpoena; and(c) an affidavit of service of the subpoena; and(d) a further affidavit stating the following:(i) whether any application was made to set aside the subpoena;(ii) if such an application referred to in subparagraph (i) was made –(A) the material provided in support of the application; and(B) any order that disposed of the application;(iii) the material facts relied on for the application for the certificate of non-compliance.
E. C. CRAWFORD
Chief Justice
P. E. EVANS
Puisne Judge
A. M. BLOW
Puisne Judge
S. E. TENNENT
Puisne Judge
D. J. PORTER
Puisne Judge
H. M. WOOD
Puisne Judge
Countersigned,
J. A. CONNOLLY
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 15 August 2012
These Rules of Court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule)
These Rules of Court amend the Criminal Rules 2006 to specify procedures in relation to subpoenas, issued in criminal proceedings, to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies.