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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Procedure Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
Part 2 -- Dealing with alleged offenders
without prosecuting them
4. Interpretation 7
5. Prescribed offences and modified penalties for them 7
6. Other matters to be prescribed by prescribed Acts 8
7. Authorised and approved officers 8
8. Issuing infringement notices 9
9. Form and content of infringement notices 9
10. Service of infringement notices 10
11. Interpretation for ss. 12 and 13 11
12. Vehicle offences, infringement notices for 12
13. Vehicle offences, onus of responsible person 13
14. Extensions of time 14
15. Withdrawal of infringement notices 15
16. Modified penalty, effect of paying 15
17. Modified penalty, application of 15
Part 3 -- Prosecutions in courts of
summary jurisdiction
Division 1 -- Preliminary
18. Interpretation 16
19. Application of this Part 17
333--2 page i
Criminal Procedure Bill 2004
Contents
Division 2 -- Commencing and discontinuing a
prosecution
20. Who may commence a prosecution 18
21. When a prosecution can be commenced 19
22. Where a prosecution may be commenced 19
23. Prosecution notice, formal requirements of 20
24. Prosecution notice, lodgment of 21
25. Discontinuing a prosecution 22
Division 3 -- Notifying the accused of a
prosecution
26. Accused's general entitlement to prosecution notice 22
27. Accused in custody, entitlement to prosecution notice 22
28. Accused not in custody, procedural options 23
29. Corporation, procedural options 24
30. Summons, court hearing notice or warrant, issue of 24
31. Warrant for accused's arrest, contents etc. 26
32. Summons to accused, contents and service of 27
33. Court hearing notice, contents and service of 28
34. Summons etc., amendment of date if not served 29
35. Initial disclosure by prosecutor 29
Division 4 -- Procedure on charge of indictable
offence
36. Interpretation 33
37. Application of this Division 33
38. No appearance by a party 34
39. Initial procedure 34
40. Either way charges 35
41. Charges that are to be tried on indictment 35
42. Full disclosure by prosecutor 36
43. Administrative committals 39
44. Disclosure/committal hearing, procedure on 40
45. Committal, prosecutor's duties after 41
46. Committal for sentence after conviction, procedure on 43
47. Committal for sentence or trial, matters to be recorded 44
Division 5 -- Procedure on charge of simple
offence
48. Application of this Division 44
49. Written plea, court to advise prosecutor 44
50. Written plea of not guilty 45
51. Written plea of guilty 45
page ii
Criminal Procedure Bill 2004
Contents
52. No appearance by any party and no plea received 47
53. No appearance by any party but plea received 47
54. No appearance by prosecutor 48
55. No appearance by accused and no plea of guilty 48
56. Conviction of absent accused, sentencing procedure
on 49
Division 6 -- Procedure for dealing summarily
with any charge
57. Application of this Division 50
58. Appearance by both prosecutor and accused,
procedure on 51
59. Initial procedure, pleading 51
60. Plea of not guilty, procedure on 52
61. Disclosure by prosecutor 53
62. Disclosure by accused of certain matters in certain
cases 55
63. Non-disclosure, consequences of 57
64. Issues that may be dealt with before trial 58
65. Trials, procedure on 58
66. Trial on the papers 59
67. Costs 60
68. Court must record its decision 60
69. Conviction and sentence, accused to be notified of 61
Division 7 -- Setting aside decisions made in the
absence of a party
70. Interpretation 61
71. Making an application to set aside 61
72. Dealing with an application to set aside 63
73. Court may set aside decision on its own initiative 64
74. Effect of decisions under s. 72 or 73 64
Division 8 -- Miscellaneous
75. Adjourning charges 66
76. Staying a prosecution permanently 67
77. Video or audio link, use of when accused in custody
etc. 67
78. Exceptions etc., proof of in simple offences 68
79. Dismissing a charge for want of prosecution,
consequences of 69
page iii
Criminal Procedure Bill 2004
Contents
Part 4 -- Prosecutions in superior
courts
Division 1 -- Preliminary
80. Interpretation 70
81. Application of this Part 70
82. Court may act on its own initiative etc. 71
Division 2 -- Commencing and discontinuing a
prosecution
83. How a prosecution is commenced 71
84. Where a prosecution may be commenced 72
85. Indictments, formal requirements and service of 73
86. Accused not committed may be arrested etc. 74
87. Discontinuing a prosecution 75
Division 3 -- General matters
88. Accused's presence, when required 76
89. Adjourning cases 76
90. Staying a prosecution permanently 77
91. Accused may be required to plead at any time 78
92. Plea of not guilty, consequences of 78
93. Plea of not guilty on account of unsoundness of mind,
dealing with 78
Division 4 -- Pre-trial matters
94. Court may order prosecutor to commence prosecution
etc. 79
95. Disclosure by prosecutor 79
96. Disclosure by accused of certain matters 82
97. Non-disclosure, consequences of 83
98. Issues that may be dealt with before trial 84
Division 5 -- Committals for sentence
99. Unconvicted accused committed for sentence,
procedure on 85
100. Convicted accused committed for sentence, procedure
on 87
Division 6 -- Trial by jury
101. Application of this Division 87
102. When a juror is sworn 88
103. Accused to be told of right to challenge jurors 88
104. Challenging jurors 88
page iv
Criminal Procedure Bill 2004
Contents
105. Jurors to be sworn 89
106. Jury to be informed of certain matters 89
107. Plea of guilty after jury is sworn 89
108. No case to answer, judge may acquit accused 89
109. View by a jury 90
110. Jury may be given records etc. to assist understanding 90
111. Jury not to separate or communicate with others 90
112. Judge to address jury before it deliberates 91
113. Special verdict may be required 91
114. Jury's verdict to be unanimous except in some cases 92
115. Discharging a juror 92
116. Discharging a jury 93
Division 7 -- Trial by judge alone
117. Application of this Division 93
118. Trial by judge alone without a jury may be ordered 94
119. Law and procedure to be applied 95
120. Judge's verdict and judgment 95
Division 8 -- Miscellaneous
121. Sentences etc. may be stayed pending appeal 96
122. Incapacity of judge 97
123. No fees or costs 98
124. Rules of court 98
Part 5 -- Provisions applicable to any
prosecution
Division 1 -- Preliminary
125. Application of Part 100
Division 2 -- Pleas and related matters
126. Pleas available to charges 100
127. Plea of no jurisdiction etc., dealing with 101
128. Plea of no jurisdiction etc., consequences if upheld 102
129. Plea of guilty, procedure on 102
Division 3 -- General procedural matters
130. Mental fitness of accused to stand trial 103
131. Unclear charge, court may order particulars etc. 103
132. Amending charges etc. 104
133. Separate trials, court may order 105
134. Separate prosecutions may be dealt with together 107
135. Venue, change of 107
page v
Criminal Procedure Bill 2004
Contents
136. Trial date, court may set on application of party 108
137. Case management powers 108
138. Disclosure requirements, orders as to 109
139. Accused's appearance, court's powers to compel 110
140. Accused may be excluded from proceedings 111
141. Video and audio links, use of 111
Division 4 -- Trial matters
142. Accused required to plead at start of trial 112
143. Opening addresses 112
144. Accused's entitlement to defend charges 113
145. Closing addresses 113
Division 5 -- Judgments and related matters
146. Acquittal on account of unsoundness of mind 113
147. Judgment, entry of 114
148. Conviction, consequences of 114
149. Acquittal, consequences of 114
150. Discharge of accused, effect of 115
Division 6 -- Prosecutions against corporations
151. Application of this Division 115
152. Corporation may appoint representative 115
153. Representative's functions 116
154. Pleas by or on behalf of a corporation 116
155. Compelling a representative to appear 117
Division 7 -- Witnesses
156. Interpretation 117
157. Privilege, claims of not prevented 117
158. Pre-trial statements and examinations of witnesses
(Sch 3) 117
159. Compelling a witness to attend court 118
160. Arrest warrant for witness, content of 119
161. Witness summons, content of 119
162. Witness summons, service of 120
163. Witness summons to produce material, procedure on 120
164. Witnesses, securing further attendance of (Sch 4) 121
165. Witness not attending, procedure on 122
166. Witness summons, cancelling 122
167. Discharging a witness 122
page vi
Criminal Procedure Bill 2004
Contents
Division 8 -- Miscellaneous
168. Criminal records, proof of 123
169. Child, prosecution of in wrong court 123
170. Exhibits, retention of etc. 124
171. Court to be open, publicity 125
172. Representation of parties 127
Part 6 -- Miscellaneous
Division 1 -- Court documents
173. Unauthorised documents 128
174. Presumptions as to signatures 128
175. Service and proof of service 128
176. Effect of court documents 129
177. Warrants, effect of and procedure on 129
178. Defects etc. in court documents 131
179. Errors in court records due to use of wrong or false
name 132
Division 2 -- Offences
180. Corporation and its officers, liability for offences 132
181. Disobeying summons, offence 133
Division 3 -- General
182. Appointment of people to prosecute offences 134
183. Contempts, summary punishment of not prevented 135
184. Decisions by court officer, review of 135
185. Enforcing orders to pay money, other than fines etc. 135
186. Regulations 137
Schedule 1 -- Prosecution notices and
indictments 138
Division 1 -- Preliminary 138
1. Interpretation 138
Division 2 -- Contents of prosecution notices and
indictments 138
2. General rules 138
3. Prosecutor to be identified 138
4. Accused to be identified 139
5. Alleged offence to be described 139
6. Alleging particular matters and offences 140
7. Multiple charges and multiple accused 143
page vii
Criminal Procedure Bill 2004
Contents
8. Multiple offences may be charged as one in some
cases 144
Division 3 -- Effect of certain charges 145
9. Joined charges and accused to be tried together 145
10. Charge of offence relating to property 145
11. Charge of burglary, stealing or receiving 145
Schedule 2 -- Service of documents and
other things 147
1. Interpretation 147
2. Personal service of individuals 147
3. Postal service on individuals and corporations 148
4. Service on corporations 149
5. False service information, offence 150
Schedule 3 -- Pre-trial statements and
examinations of witnesses 151
1. Interpretation 151
2. Evidence Act 1906 not affected 151
3. Admissibility of dying declarations not affected 151
4. Witness statements, formalities of 151
5. Examination of witness, court may order 152
6. Examination of witness, conduct of 153
7. Witness's pre-trial evidence, use of at trial 155
Schedule 4 -- Securing the further
attendance of witnesses 157
1. Interpretation 157
2. Witness may be imprisoned until trial 157
3. Witness undertakings, provisions about 159
4. Witness undertaking, contravention of 159
5. Surety undertakings, application of Bail Act
provisions to 160
6. Application of other Bail Act provisions 160
Defined Terms
page viii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Criminal Procedure Bill 2004
A Bill for
An Act to provide procedures for dealing with alleged offenders and
for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Procedure Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Procedure Act 2004.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Interpretation
(1) In this Act, unless the contrary intention appears --
10 "accused" means a person alleged in a prosecution notice or
indictment to have committed an offence;
"acquit", in relation to a charge, has the meaning given by
subsection (2)(b);
"approved notice" means a notice approved by the chief
15 executive officer of the department of the Public Service
principally assisting in the administration of this Act;
"arrest warrant" --
(a) for an accused, means a warrant that complies with
section 31;
20 (b) for a witness, means a warrant that complies with
section 160;
"audio link" means facilities, including telephones, that enable,
at the same time, a court at one place to hear a person at
another place and vice versa;
25 "case" means a prosecution, or any proceedings in a court that
involve its criminal jurisdiction;
"charge" means a written allegation in a prosecution notice or
indictment that a person has committed an offence;
page 2
Criminal Procedure Bill 2004
Preliminary Part 1
s. 3
"convict", in relation to a charge, has the meaning given by
subsection (2)(a);
"corporation" means any body corporate, whether incorporated
in this State or elsewhere;
5 "court" means a court of summary jurisdiction or a superior
court;
"court hearing notice" means a document that complies with
section 33(1);
"court of summary jurisdiction" means a court, or a person,
10 acting in circumstances in which it, he or she is a court of
summary jurisdiction by virtue of another written law;
"courtroom" includes any place where a court is sitting;
"deal with" a charge, includes to hear and determine it;
"determine" a charge, means --
15 (a) to convict the accused of the charge;
(b) to acquit the accused of the charge; or
(c) to enter judgment on the charge under section 128(2)
or (3);
"document" means a record that is on paper or that is capable
20 of being put on paper;
"DPP" means the Director of Public Prosecutions appointed
under the Director of Public Prosecutions Act 1991 or any
person performing the functions or acting in that office;
"either way charge" means an indictable charge that, by virtue
25 of The Criminal Code section 5, or another written law,
may be tried either on indictment or summarily;
"electronic recording" means an electronic or magnetic
recording of sounds or moving images or both;
"indictable charge" means a charge of an indictable offence;
30 "indictable offence" means a crime or any other offence
described by a written law as an indictable offence,
irrespective of whether in some circumstances it may be
dealt with summarily;
page 3
Criminal Procedure Bill 2004
Part 1 Preliminary
s. 3
"indictment" means a document that contains one or more
indictable charges, complies with section 85(2), and is
lodged with a superior court;
"lawyer" means a certificated practitioner within the meaning
5 of the Legal Practice Act 2003;
"magistrate" means a magistrate appointed under --
(a) the Children's Court of Western Australia Act 1988;
(b) the Magistrates Court Act 2003; or
(c) any other written law for the purpose of constituting a
10 court of summary jurisdiction;
"offence" means an indictable offence or a simple offence;
"party", in relation to a charge, means the prosecutor or the
accused;
"post" a document, means to send the document by pre-paid
15 ordinary post;
"prescribed court officer", in relation to a prosecution notice
lodged with a court of summary jurisdiction, means an
officer of that court who is prescribed by rules of court
made by that court for the purposes of this Act;
20 "prosecution" means proceedings in a court that allege a
person has committed an offence and that are taken for the
purpose of having the person tried for the offence;
"prosecution notice" means a document that contains one or
more charges, complies with section 23(2), and is lodged
25 with a court of summary jurisdiction;
"prosecutor" means --
(a) in a prosecution in a court of summary jurisdiction,
the person who commenced the prosecution or a
person who in court represents that person;
30 (b) in a prosecution in a superior court, the authorised
officer (as defined in section 80) who commenced the
prosecution or a person who in court represents that
person;
page 4
Criminal Procedure Bill 2004
Preliminary Part 1
s. 3
"public authority" means --
(a) a Minister of the State;
(b) a department of the Public Service;
(c) a local government or a regional local government; or
5 (d) a body, whether incorporated or not, or the holder of
an office, being a body or office that is established
for a public purpose under a written law and that,
under the authority of a written law, performs a
statutory function on behalf of the State;
10 "record" means any thing or process --
(a) on or by which information is recorded or stored; or
(b) by means of which a meaning can be conveyed by
any means in a visible or recoverable form,
whether or not the use or assistance of some electronic,
15 electrical, mechanical, chemical or other device or process
is required to recover or convey the information or
meaning;
"remand warrant" means a warrant issued by a court under
this Act or the Sentencing Act 1995 that orders that an
20 accused be kept in custody while a case is adjourned;
"simple offence" means an offence that is not an indictable
offence;
"statutory penalty" for an offence, means the penalty specified
by a written law for the offence;
25 "summons", to an accused, means a document that complies
with section 32(1);
"superior court" means the Supreme Court or the District
Court;
"trial date" means the date set for the start of a trial;
30 "vehicle" has the meaning given by the Road Traffic Act 1974;
"video link" means facilities, including closed circuit
television, that enable, at the same time, a court at one
page 5
Criminal Procedure Bill 2004
Part 1 Preliminary
s. 3
place to see and hear a person at another place and vice
versa;
"witness summons" means a document that complies with
section 161;
5 "witness undertaking" has the meaning given by Schedule 4
clause 1;
"working day" means a day other than a Saturday, a Sunday, or
a public holiday throughout the State.
(2) For the purposes of this Act --
10 (a) a person is convicted of a charge if a court under
section 147(1) enters a judgment of conviction of the
offence charged in respect of the person;
(b) a person is acquitted of a charge if a court --
(i) under section 147(2) enters a judgment of
15 acquittal of the offence charged on account of
unsoundness of mind in respect of the person; or
(ii) under section 147(3) enters a judgment of
acquittal of the offence charged in respect of the
person.
page 6
Criminal Procedure Bill 2004
Dealing with alleged offenders without prosecuting them Part 2
s. 4
Part 2 -- Dealing with alleged offenders without
prosecuting them
4. Interpretation
In this Part, unless the contrary intention appears --
5 "alleged offender" means a person suspected of having
committed a prescribed offence;
"approved officer", in relation to an infringement notice,
means a person appointed as an approved officer under
regulations made under section 6(a) in relation to the
10 notice;
"authorised officer", in relation to an infringement notice,
means a person appointed as an authorised officer under
regulations made under section 6(b) in relation to the
notice;
15 "prescribed Act" means an Act that is prescribed by the
regulations made under this Act;
"prescribed offence" means an offence prescribed under
section 5(1).
5. Prescribed offences and modified penalties for them
20 (1) Regulations made under a prescribed Act may prescribe an
offence under the prescribed Act, or under any regulations made
under the prescribed Act, to be an offence for which an
infringement notice may be issued under this Part.
(2) For each offence prescribed under subsection (1), the
25 regulations made under the prescribed Act must prescribe --
(a) a modified penalty that is applicable in any
circumstances in which the offence is committed; or
(b) a modified penalty that is applicable if the offence is
committed in circumstances specified in the regulations.
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Criminal Procedure Bill 2004
Part 2 Dealing with alleged offenders without prosecuting them
s. 6
(3) Any modified penalty prescribed under subsection (2) for an
offence --
(a) must be an amount of money; and
(b) must not exceed 20% of the statutory penalty for the
5 offence.
6. Other matters to be prescribed by prescribed Acts
If under section 5 regulations are made under a prescribed Act
and prescribe an offence, the regulations must also --
(a) provide for the appointment of approved officers in
10 relation to infringement notices that may be issued under
this Part for the prescribed offence;
(b) provide for the appointment of authorised officers in
relation to infringement notices that may be issued under
this Part for the prescribed offence;
15 (c) provide for the means by which authorised officers can
show they are authorised to issue infringement notices;
(d) prescribe the form of infringement notices that may be
issued under this Part for the prescribed offence; and
(e) prescribe any other forms required to be prescribed by
20 this Part in relation to infringement notices that may be
issued under this Part for the prescribed offence.
7. Authorised and approved officers
(1) A person who is appointed as an approved officer under
regulations made under a prescribed Act under section 6(a) is
25 not eligible to be appointed as an authorised officer under
regulations made under that Act under section 6(b).
(2) If --
(a) an authorised officer is serving or is about to serve an
infringement notice on an alleged offender in person for
30 an offence under a prescribed Act; and
page 8
Criminal Procedure Bill 2004
Dealing with alleged offenders without prosecuting them Part 2
s. 8
(b) the alleged offender requests the officer to do so,
the officer must show, in a way prescribed by the regulations
made under that Act under section 6(c), that he or she is
authorised to issue infringement notices for offences under that
5 Act.
(3) Failure to comply with subsection (2) does not invalidate the
infringement notice or its service.
8. Issuing infringement notices
(1) An authorised officer who has reason to believe that a person
10 has committed a prescribed offence may issue an infringement
notice that complies with section 9 for the alleged offence.
(2) The infringement notice must be served under section 10 within
21 days after the day on which the alleged offence is believed to
have been committed.
15 9. Form and content of infringement notices
(1) An infringement notice must --
(a) be in the prescribed form;
(b) be addressed to the alleged offender by name, unless
section 12(1) applies;
20 (c) comply with Schedule 1 clause 5, which applies as if the
alleged offence were a charge and the infringement
notice were a prosecution notice;
(d) state the modified penalty for the offence;
(e) be dated with the date it is issued;
25 (f) inform the alleged offender --
(i) that within 28 days after the date of the notice the
alleged offender may elect to be prosecuted for
the alleged offence;
(ii) how to make such an election;
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Criminal Procedure Bill 2004
Part 2 Dealing with alleged offenders without prosecuting them
s. 10
(iii) that if the alleged offender does not want to be
prosecuted for the alleged offence, the modified
penalty for the offence may be paid to an
approved officer within 28 days after the date of
5 the notice; and
(iv) how and where the modified penalty may be
paid;
(g) if the Fines, Penalties and Infringement Notices
Enforcement Act 1994 Part 3 applies to the notice,
10 inform the alleged offender of the action that may be
taken under that Act if the alleged offender does not act
in accordance with the notice; and
(h) contain any information prescribed by the regulations
made under the prescribed Act.
15 (2) The amount stated in an infringement notice as the modified
penalty must be the amount that was the prescribed modified
penalty at the time the alleged offence is believed to have been
committed.
(3) An infringement notice must not relate to more than one alleged
20 offence.
10. Service of infringement notices
Unless section 12(1)(b)(i) applies, an infringement notice must
be served on an alleged offender --
(a) if the offender is an individual, in accordance with
25 Schedule 2 clause 2 or 3;
(b) if the offender is a corporation, in accordance with
Schedule 2 clause 3 or 4; or
(c) if the offender's address is ascertained at the time of or
immediately after the alleged offence was committed, by
30 posting it to the offender at that address.
page 10
Criminal Procedure Bill 2004
Dealing with alleged offenders without prosecuting them Part 2
s. 11
11. Interpretation for ss. 12 and 13
(1) In this section and sections 12 and 13, unless the contrary
intention appears --
"corresponding law" means a law of another State or a
5 Territory or the Commonwealth that is prescribed by the
regulations made under this Act to be a law that
corresponds with the Road Traffic Act 1974 or the Control
of Vehicles (Off-road Areas) Act 1978;
"current licence holder" of a vehicle at the time of a vehicle
10 offence, means a person in whose name the vehicle is
licensed at that time;
"licensed" means licensed or registered under a vehicle
licensing law;
"responsible person" for a vehicle, means a person who under
15 subsection (2) is responsible for the vehicle;
"vehicle licensing law" means the Road Traffic Act 1974 or the
Control of Vehicles (Off-road Areas) Act 1978 or a
corresponding law;
"vehicle offence" means an alleged offence that has as an
20 element of it the driving, parking, standing or leaving of a
vehicle.
(2) For the purposes of sections 12 and 13, a person responsible for
a vehicle at the time of a vehicle offence is --
(a) if at that time the vehicle is licensed --
25 (i) any current licence holder who has not given a
notice as described in subparagraph (ii);
(ii) any new owner specified in a notice given under
the vehicle licensing law by a current licence
holder of having ceased before that time to be the
30 owner of the vehicle unless, under
subsection (3), the new owner is not responsible
for the vehicle; or
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Criminal Procedure Bill 2004
Part 2 Dealing with alleged offenders without prosecuting them
s. 12
(iii) if, under subsection (3), no new owner specified
in a notice described in subparagraph (ii) is
responsible for the vehicle -- the current licence
holder who gave the notice;
5 (b) if at that time the vehicle is not licensed but was
previously licensed -- a person responsible under
paragraph (a) before the vehicle last ceased to be
licensed; or
(c) in any other case --
10 (i) the person who at that time is entitled to
immediate possession of the vehicle; or
(ii) if there are several persons entitled to its
immediate possession at that time, the person
whose entitlement is paramount.
15 (3) A person is not responsible for a vehicle under
subsection (2)(a)(ii) at the time of a vehicle offence if it can be
shown --
(a) that at that time the person had not agreed to becoming
the owner of the vehicle; and
20 (b) that the person has given notice of that fact to the person
who, under the relevant vehicle licensing law, is
responsible for keeping the licensing records.
12. Vehicle offences, infringement notices for
(1) If an alleged offence is a vehicle offence and the identity of the
25 alleged offender is not known and cannot immediately be
ascertained, an infringement notice for the alleged offence --
(a) despite section 9(1)(b), may be addressed to the
responsible person for the vehicle without naming that
person or the alleged offender; and
page 12
Criminal Procedure Bill 2004
Dealing with alleged offenders without prosecuting them Part 2
s. 13
(b) may be served on the responsible person --
(i) despite section 10, by attaching it securely to the
vehicle; or
(ii) in accordance with section 10(a) or (b).
5 (2) An infringement notice that is served under subsection (1) must
contain or be accompanied by a statement explaining the
operation of section 13.
(3) If an infringement notice is served on a responsible person
under subsection (1) and there are several responsible persons,
10 the notice is to be taken to have been served on --
(a) if only one responsible person responds to the notice,
that responsible person; or
(b) in any other case, not more than one responsible person
chosen by an authorised officer.
15 (4) A person, other than a person in charge of the vehicle or a
responsible person for the vehicle, must not interfere with an
infringement notice that is left on a vehicle.
Penalty: $1 000.
13. Vehicle offences, onus of responsible person
20 (1) If under section 12(1) an infringement notice is served on a
responsible person, the responsible person is to be presumed to
have committed the vehicle offence alleged in the notice unless,
within 28 days after the date of the infringement notice --
(a) the modified penalty specified in the notice is paid; or
25 (b) the responsible person informs an authorised officer
specified in the notice that the responsible person was
not the driver or person in charge of the vehicle at the
time of the alleged offence and supplies the officer --
(i) with the name and address of the driver or person
30 in charge of the vehicle at that time; or
page 13
Criminal Procedure Bill 2004
Part 2 Dealing with alleged offenders without prosecuting them
s. 14
(ii) with information showing that at that time the
vehicle had been stolen or unlawfully taken or
was being unlawfully used.
(2) If a responsible person complies with subsection (1)(b) the
5 infringement notice may be withdrawn under section 15.
(3) If a responsible person complies with subsection (1)(b) and an
approved officer decides not to withdraw the infringement
notice under section 15, the approved officer must advise the
person of the decision.
10 (4) The presumption in subsection (1) operates even if the
responsible person is not an individual.
(5) The presumption in subsection (1) operates, in the absence of
evidence to the contrary, for the purpose of enforcing the
infringement notice and for the purpose of any prosecution of
15 the responsible person for the alleged offence.
(6) The presumption in subsection (1) does not affect the liability of
the person who actually committed the offence but --
(a) the responsible person and the actual offender cannot
both be issued an infringement notice or sentenced for
20 the offence;
(b) if one of them pays a modified penalty or is sentenced
for the offence, a modified penalty paid by the other is
to be refunded; and
(c) if one of them is sentenced for the offence, a sentence
25 must not be imposed on the other for the offence.
14. Extensions of time
(1) An authorised officer may, in a particular case, extend the
period in section 9(1)(f) or 13(1).
(2) An extension may be allowed even if the period has elapsed.
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Criminal Procedure Bill 2004
Dealing with alleged offenders without prosecuting them Part 2
s. 15
15. Withdrawal of infringement notices
(1) An approved officer may withdraw an infringement notice.
(2) To withdraw an infringement notice an approved officer must
give the alleged offender a notice in a form prescribed under the
5 prescribed Act stating that the notice has been withdrawn.
(3) An infringement notice may be withdrawn whether or not the
modified penalty has been paid.
(4) If an infringement notice is withdrawn after the modified
penalty is paid, the amount of money paid is to be refunded.
10 16. Modified penalty, effect of paying
(1) If the modified penalty stated in an infringement notice is paid
within the period in section 9(1)(f) or any extension of it and the
notice is not withdrawn, the bringing of proceedings and the
imposition of sentences are prevented to the same extent as they
15 would be if the alleged offender had been convicted by a court
of, and punished for, the alleged offence.
(2) Payment of a modified penalty is not to be regarded as an
admission for the purposes of any proceedings, whether civil or
criminal.
20 17. Modified penalty, application of
(1) Any money paid as a modified penalty is, subject to
sections 13(6)(b) and 15(4), to be dealt with in accordance with
the Sentencing Act 1995 section 60 as if the money were a fine
imposed for the offence concerned.
25 (2) Subsection (1) applies unless a prescribed Act expressly
provides to the contrary.
page 15
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 1 Preliminary
s. 18
Part 3 -- Prosecutions in courts of summary
jurisdiction
Division 1 -- Preliminary
18. Interpretation
5 In this Part, unless the contrary intention appears --
"adjourn" means to adjourn under section 75;
"authorised investigator" means --
(a) a person referred to in section 80(2)(a) to (e);
(b) a police officer;
10 (c) an officer of a prescribed public authority who is
authorised by the public authority, or under a written
law, to commence prosecutions; or
(d) a person appointed under section 182 to prosecute
offences who is acting in accordance with the terms
15 of the appointment;
"court" means a court of summary jurisdiction;
"court date", for a charge in a prosecution notice, means --
(a) the first court date for the notice;
(b) if the charge has been adjourned to a new court date,
20 the new court date; or
(c) any other date set by a court as a date when it will
deal with the charge;
"first court date" --
(a) for an indictable charge in a prosecution notice,
25 means --
(i) the date stated in the summons first served on
the accused in relation to the notice as the date
when the accused is required to appear before
the court; or
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Preliminary Division 1
s. 19
(ii) the date when the accused first appears in the
court in relation to the charge in accordance
with a bail undertaking by the accused or by
reason of being in custody;
5 (b) for a charge of a simple offence in a prosecution
notice, means --
(i) the date stated in the court hearing notice first
served on the accused in relation to the
prosecution notice as the date when the charge
10 will be dealt with by the court; or
(ii) the date when the accused first appears in the
court in relation to the charge in accordance
with a bail undertaking by the accused or by
reason of being in custody;
15 "prescribed" means prescribed by the regulations made under
this Act;
"prescribed public authority" means a public authority that is
prescribed for the purposes of this Part;
"written plea", to a charge by an accused, means a plea of
20 guilty or not guilty to the charge made in writing and --
(a) if the accused is an individual, signed by the accused
or on the accused's behalf by a lawyer;
(b) if the accused is a corporation, made in accordance
with section 154(1).
25 19. Application of this Part
This Part applies to and in relation to prosecutions in courts of
summary jurisdiction.
page 17
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 2 Commencing and discontinuing a prosecution
s. 20
Division 2 -- Commencing and discontinuing a prosecution
20. Who may commence a prosecution
(1) In this section, unless the contrary intention appears --
"authorised person" in relation to an offence, means --
5 (a) if under another written law a person or class of
person is authorised to commence a prosecution for
the offence, that person or a person of that class; or
(b) in any other case, a person --
(i) who is a public authority or an employee of a
10 public authority; or
(ii) who is authorised in writing by a public
authority to commence a prosecution for the
offence.
(2) If another written law limits who may commence a prosecution
15 for an offence, a prosecution for the offence may only be
commenced in accordance with that law.
(3) Subject to subsection (2), a prosecution for an offence may only
be commenced by --
(a) one of the following acting in the course of his or her
20 duties --
(i) an authorised person in relation to the offence;
(ii) a person referred to in section 80(2)(a) to (e);
(iii) a police officer;
or
25 (b) a person who, acting in accordance with the terms of an
appointment made under section 182, may prosecute the
offence.
(4) This section does not affect the operation of an enactment that
requires a person's consent, approval or authority to be given
30 for the commencement of a prosecution for an offence.
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Prosecutions in courts of summary jurisdiction Part 3
Commencing and discontinuing a prosecution Division 2
s. 21
(5) A person acting in his or her private capacity cannot commence
a prosecution, unless another written law expressly provides
otherwise.
(6) This section does not limit the functions of the DPP under the
5 Director of Public Prosecutions Act 1991.
21. When a prosecution can be commenced
(1) A prosecution of a person for an indictable offence may be
commenced at any time, unless another written law provides
otherwise.
10 (2) A prosecution of a person for a simple offence must be
commenced within 12 months after the date on which the
offence was allegedly committed, unless another written law
provides otherwise or the person consents to it being
commenced at a later time.
15 (3) A prosecution is commenced --
(a) on the day on which a prosecution notice is signed under
section 23 by the prosecutor and either a JP or a
prescribed court officer; or
(b) in the case of a prosecution notice signed under
20 section 23 by an authorised investigator alone -- on the
day on which the notice is lodged with the court in
which the prosecution is being commenced,
whether or not the notice has been served on the accused.
22. Where a prosecution may be commenced
25 (1) The court in which a prosecution of a person for an indictable
offence is commenced must be a court that has jurisdiction over
the person, notwithstanding that the court does not or may not
have jurisdiction to determine a charge of the offence.
(2) The court in which a prosecution of a person for a simple
30 offence is commenced must be a court that has --
(a) jurisdiction over the person; and
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 2 Commencing and discontinuing a prosecution
s. 23
(b) jurisdiction to determine a charge of the offence.
(3) A prosecution may be commenced in any registry of a court
referred to in subsection (1) or (2) unless the court's rules of
court provide otherwise.
5 (4) If a prosecution is commenced in a court that does not have
jurisdiction as required by subsection (1) or (2), the court may
send the prosecution to a court that does have such jurisdiction.
(5) A prosecution that is sent to another court under subsection (4)
is to be taken to have been commenced in the other court on the
10 day on which it was commenced in the first court.
(6) This section does not affect the operation of Part 4 Division 2.
23. Prosecution notice, formal requirements of
(1) Schedule 1 has effect in relation to prosecution notices and
charges in them.
15 (2) A prosecution notice must --
(a) be in writing in a prescribed form;
(b) comply with Schedule 1 Division 2;
(c) contain any information prescribed; and
(d) be signed in accordance with subsection (3) and, if
20 necessary, subsection (4).
(3) A prosecution notice must --
(a) if the prosecution is being commenced by an authorised
investigator, either --
(i) be signed by the investigator alone; or
25 (ii) be signed by the investigator in the presence of
either a JP or a prescribed court officer;
(b) in any other case -- be signed by the person who is
commencing the prosecution in the presence of either a
JP or a prescribed court officer.
page 20
Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Commencing and discontinuing a prosecution Division 2
s. 24
(4) If a prosecution notice is signed in the presence of a JP or a
prescribed court officer, the JP or officer must also sign the
notice.
(5) The contents of a prosecution notice need not be verified on
5 oath or affirmation before a JP or a prescribed court officer
unless --
(a) an arrest warrant for the accused for the alleged offence
is to be sought; or
(b) they are required to be so verified for the purposes of
10 another written law.
24. Prosecution notice, lodgment of
(1) A prosecution notice must be lodged with the court in which the
prosecution is being commenced --
(a) if the accused is in custody or is on bail, as soon as
15 practicable after it is signed by the prosecutor;
(b) if an arrest warrant has been issued for the accused in
relation to the notice, as soon as practicable after the
accused is arrested under the warrant;
(c) in any other case --
20 (i) as soon as practicable after the accused is served
with a summons or court hearing notice in
relation to the prosecution notice; and
(ii) in any event, at least 3 working days before the
court date stated in the summons or court hearing
25 notice,
together with a copy of the summons or court hearing
notice.
(2) A prosecution notice must be lodged in a manner prescribed by
rules of court.
30 (3) A prescribed court officer may refuse to accept the lodgment of
a prosecution notice if the prosecutor is not a person who can
commence the prosecution or if the notice does not comply with
section 23.
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 25
(4) Section 184 applies to and in relation to a decision made under
subsection (3).
(5) If under section 184 the court sets aside the officer's decision,
the prosecution notice is to be taken to have been lodged on the
5 day on which the officer refused to accept its lodgment.
25. Discontinuing a prosecution
(1) If no evidence has been adduced in relation to a charge, the
prosecutor may inform the court that the prosecutor is
discontinuing the prosecution of the charge.
10 (2) On being so informed, the court may consent or, if satisfied that
the discontinuance would be an abuse of process, refuse to
consent to the discontinuance of the prosecution concerned.
(3) If a prosecution of a charge is discontinued, the court must
dismiss the charge for want of prosecution.
15 Division 3 -- Notifying the accused of a prosecution
26. Accused's general entitlement to prosecution notice
(1) If an accused or an accused's lawyer asks a court for a copy of a
prosecution notice containing a charge against the accused that
has been lodged with the court and that has not been determined
20 or dismissed, the court must provide one free of charge, unless
the request is unreasonable.
(2) Failure to comply with subsection (1) does not invalidate the
prosecution notice or the commencement of the prosecution but
may be grounds for adjourning the prosecution.
25 27. Accused in custody, entitlement to prosecution notice
(1) This section applies if at the time of being charged with an
offence an accused is under arrest or otherwise in custody,
whether or not he or she is subsequently granted or released on
bail for the charge.
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Prosecutions in courts of summary jurisdiction Part 3
Notifying the accused of a prosecution Division 3
s. 28
(2) The prosecutor must ensure that the accused is given a copy of
the prosecution notice as soon as practicable after it is signed in
accordance with section 23.
(3) Failure to comply with subsection (2) does not invalidate the
5 prosecution notice or the commencement of the prosecution but
may be grounds for adjourning the prosecution.
28. Accused not in custody, procedural options
(1) This section applies if, at the time of being charged with an
offence, an accused is not under arrest or otherwise in custody.
10 (2) This section does not apply if an accused is a corporation.
(3) If the prosecution notice alleges one or more indictable
offences, the prosecutor --
(a) if he or she is an authorised investigator, must either
personally issue a summons to the accused or apply --
15 (i) to a JP or a prescribed court officer for the issue
of a summons to the accused; or
(ii) to a magistrate of the court that will deal with the
notice for an arrest warrant for the accused;
(b) if he or she is not an authorised investigator, must
20 apply --
(i) to a JP or a prescribed court officer for the issue
of a summons to the accused; or
(ii) to a magistrate of the court that will deal with the
notice for an arrest warrant for the accused.
25 (4) If the prosecution notice alleges one or more simple offences,
the prosecutor --
(a) if he or she is an authorised investigator, must either
personally issue a court hearing notice to the accused or
apply --
30 (i) to a JP or a prescribed court officer for the issue
of a court hearing notice to the accused; or
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 29
(ii) to a magistrate of the court that will deal with the
notice for an arrest warrant for the accused;
(b) if the prosecutor is not an authorised investigator, must
apply --
5 (i) to a JP or a prescribed court officer for the issue
of a court hearing notice to the accused; or
(ii) to a magistrate of the court that will deal with the
notice for an arrest warrant for the accused.
(5) The JP or prescribed court officer or magistrate who issues a
10 summons or court hearing notice or warrant under this section
in relation to a prosecution notice need not have been present
when the prosecution notice was signed.
29. Corporation, procedural options
(1) This section applies if an accused is a corporation.
15 (2) Irrespective of what offence or offences the prosecution notice
alleges, the prosecutor --
(a) if he or she is an authorised investigator, must either
personally issue a court hearing notice to the accused or
apply to a JP or a prescribed court officer for a court
20 hearing notice to be issued to the accused; or
(b) if he or she is not an authorised investigator, must apply
to a JP or a prescribed court officer for a court hearing
notice to be issued to the accused.
(3) The JP or prescribed court officer who issues a court hearing
25 notice under this section in relation to a prosecution notice need
not have been present when the prosecution notice was signed.
30. Summons, court hearing notice or warrant, issue of
(1) An authorised investigator must not, under section 28 or 29,
personally issue --
30 (a) a summons unless it complies with section 32(1); or
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Notifying the accused of a prosecution Division 3
s. 30
(b) a court hearing notice unless it complies with
section 33(1),
and unless the date stated in the summons or notice as the date
when the court will deal with the prosecution notice is a date
5 nominated by a prescribed court officer.
(2) A JP or a prescribed court officer to whom an application is
made under section 28 or 29 must not issue --
(a) a summons unless it complies with section 32(1); or
(b) a court hearing notice unless it complies with
10 section 33(1).
(3) Failure to comply with subsection (1) or (2) does not invalidate
the summons or court hearing notice but may be grounds for
adjourning the prosecution.
(4) A magistrate to whom an application is made under section 28
15 must not issue an arrest warrant for an accused unless satisfied
that --
(a) the prosecution notice to which it relates complies with
section 23;
(b) the presence of the accused when the prosecution notice
20 is dealt with is likely to be necessary for any reason or
for sentencing purposes; and
(c) the issue of the warrant is justified under subsection (5).
(5) The issue of an arrest warrant for an accused is justified if --
(a) there are reasonable grounds to suspect that if a
25 summons or a court hearing notice were issued, the
accused --
(i) would avoid service of the summons or notice;
(ii) would not comply with the summons;
(iii) would continue or repeat an offence charged in
30 the prosecution notice;
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 31
(iv) would endanger the safety, welfare or property of
another person; or
(v) would interfere with witnesses or otherwise
obstruct the course of justice;
5 (b) the accused's whereabouts are not known to the
prosecutor;
(c) the accused is the subject of another warrant for his or
her arrest, whether under this Act or otherwise; or
(d) for any other reason the magistrate is satisfied the issue
10 of the warrant is justified.
(6) An arrest warrant for an accused may be issued even if --
(a) a summons or court hearing notice has been issued, or
served on the accused; or
(b) the prosecution notice alleges an offence the statutory
15 penalty for which is not or does not include
imprisonment.
(7) Section 184 applies to and in relation to a prescribed court
officer's decision made under subsection (3) to refuse to issue a
summons or court hearing notice.
20 (8) If under section 184 the court sets aside the officer's decision, it
may issue a summons or court hearing notice to the accused.
31. Warrant for accused's arrest, contents etc.
(1) An arrest warrant for an accused must --
(a) be in a prescribed form;
25 (b) if issued in the first instance, must form part of or be
attached securely to a copy of the prosecution notice to
which it relates;
(c) if issued after the accused has been served with the
prosecution notice, must identify the prosecution notice
30 or the charge or charges in it or be attached securely to a
copy of it;
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Notifying the accused of a prosecution Division 3
s. 32
(d) require the person who arrests the accused to bring the
accused before the court as soon as is reasonably
practicable after doing so;
(e) contain any information prescribed; and
5 (f) be signed by the magistrate who issues it.
(2) As soon as practicable after a person arrests an accused under an
arrest warrant the person must give the person a copy of the
prosecution notice to which the warrant relates.
32. Summons to accused, contents and service of
10 (1) A summons must --
(a) be in a prescribed form;
(b) if issued in the first instance, must form part of or be
attached securely to a copy of the prosecution notice to
which it relates;
15 (c) if issued after the accused has been served with the
prosecution notice, must identify the prosecution notice
or the charge or charges in it or be attached securely to a
copy of it;
(d) state when and where the court will deal with the
20 prosecution notice;
(e) require the accused to appear at that time and place;
(f) contain any information prescribed; and
(g) be signed --
(i) if it is being issued by an authorised investigator,
25 by the investigator; or
(ii) if it being issued by a JP or a prescribed court
officer, by the JP or officer.
(2) A summons issued to an accused must be served on the accused
in accordance with Schedule 2 clause 2.
page 27
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 33
33. Court hearing notice, contents and service of
(1) A court hearing notice must --
(a) be in a prescribed form;
(b) if issued in the first instance, must form part of or be
5 attached securely to a copy of the prosecution notice to
which it relates;
(c) if issued after the accused has been served with the
prosecution notice, must identify the prosecution notice
or the charge or charges in it or be attached securely to a
10 copy of it;
(d) state where and when the prosecution notice will be
dealt with by the court;
(e) contain the information required by subsection (2);
(f) contain any information prescribed; and
15 (g) be signed --
(i) if it is being issued by an authorised investigator,
by the investigator; or
(ii) if it being issued by a JP or a prescribed court
officer, by the JP or officer.
20 (2) A court hearing notice must inform the accused --
(a) that the accused need not appear at the time when the
prosecution notice to which it relates will be dealt with
by the court;
(b) that the accused may give the court written notice that
25 the accused --
(i) pleads guilty to one or more of the charges in the
prosecution notice;
(ii) pleads not guilty to one or more of the charges in
the prosecution notice;
30 (c) that if the accused pleads guilty in writing to a charge
the accused may also, in writing --
(i) explain why the accused committed the offence;
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Notifying the accused of a prosecution Division 3
s. 34
(ii) provide information to the court that it may use
when imposing a sentence for the offence;
(d) that if the accused, in writing, pleads guilty or not guilty
to a charge and does not appear, the charge may be dealt
5 with in the accused's absence; and
(e) that if the accused does not enter a written plea to a
charge in the prosecution notice and does not appear, the
charge may be dealt with in the accused's absence.
(3) A court hearing notice issued to an accused must be served on
10 the accused in accordance with Schedule 2 clause 2, 3 or 4.
34. Summons etc., amendment of date if not served
(1) If --
(a) a summons issued by a JP or a prescribed court officer is
not served in accordance with section 32(2); or
15 (b) a court hearing notice issued by a JP or a prescribed
court officer is not served in accordance with
section 33(3),
before the court date stated in the summons or court hearing
notice, a prescribed court officer may amend the summons or
20 notice by substituting a later date.
(2) An amendment made under subsection (1) must be initialled by
the prescribed court officer.
35. Initial disclosure by prosecutor
(1) In this section, unless the contrary intention appears --
25 "confessional material" of an accused charged with an offence,
means --
(a) any written statement signed by the accused;
(b) any written record of interview with the accused
(signed or unsigned by the accused);
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Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 35
(c)any interview (within the meaning of The Criminal
Code section 570) that has been electronically
recorded,
that is relevant to the charge and that is in the possession of
5 the organisation that investigated the offence;
"police prosecutor" means a prosecutor who is a member of
the Police Force or who is employed in the department
principally assisting in the administration of the Police
Act 1892;
10 "prescribed simple offence" means a simple offence that is
prescribed to be a prescribed simple offence for the
purposes of this section;
"serve" an accused, means to serve the accused in accordance
with Schedule 2 clause 2, 3 or 4.
15 (2) The operation of this section is subject to any order made under
section 138.
(3) This section does not affect the operation of The Criminal Code
section 570A.
(4) When or as soon as practicable after a prosecution notice that
20 contains one or more indictable charges is served on an accused,
the prosecutor must serve the accused with the following --
(a) a written statement of the material facts of each such
charge;
(b) an approved notice of the existence or non-existence, as
25 the case may be, of any confessional material of the
accused that is relevant to each such charge;
(c) an approved notice that the accused does or does not
have a criminal record, as the case may be;
(d) any document that is prescribed.
30 (5) When or as soon as practicable after a prosecution notice that
contains one or more charges of prescribed simple offences is
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Notifying the accused of a prosecution Division 3
s. 35
served on an accused, the prosecutor must serve the accused
with the following --
(a) a written statement of the material facts of each such
charge;
5 (b) an approved notice of the existence or non-existence, as
the case may be, of any confessional material of the
accused that is relevant to each such charge;
(c) if the prosecutor is a police prosecutor, an approved
notice that the accused does or does not have a criminal
10 record, as the case may be;
(d) if the prosecutor is not a police prosecutor and intends to
tender any of the accused's criminal record to the court,
an approved notice of the criminal record and of the
prosecutor's intention;
15 (e) any document that is prescribed.
(6) When or as soon as practicable after a prosecution notice that
contains one or more charges of simple offences that are not
prescribed simple offences is served on an accused, the
prosecutor must serve the accused with the following --
20 (a) if the prosecutor is a police prosecutor, an approved
notice that the accused does or does not have a criminal
record, as the case may be;
(b) if the prosecutor is not a police prosecutor and intends to
tender any of the accused's criminal record to the court,
25 an approved notice of the criminal record and of the
prosecutor's intention;
(c) any document that is prescribed.
(7) An approved notice advising an accused of the existence of any
confessional material of the accused must also advise the
30 accused of the effect of subsection (11).
(8) An approved notice advising an accused that the accused does
have a criminal record must also advise the accused of the
effects of subsections (11) and (12) and section 168.
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Part 3 Prosecutions in courts of summary jurisdiction
Division 3 Notifying the accused of a prosecution
s. 35
(9) The material referred to in this section must be served before or
at the time of the accused's first appearance in the court in
relation to the prosecution notice unless it is impracticable to do
so.
5 (10) If material is not served in accordance with subsection (9) in
respect of a charge, the court may --
(a) adjourn the charge to a new court date that allows a
reasonable time for the prosecutor to serve the material;
(b) order the prosecutor to serve the material before that
10 new court date; and
(c) if the prosecutor does not obey the order, adjourn the
charge again or dismiss it for want of prosecution.
(11) As soon as practicable after an accused is served with notice --
(a) of the existence of confessional material of the accused
15 that is relevant to a charge; or
(b) that the accused has a criminal record,
the prosecutor must make available a copy of the material or the
record or both (as the case may be) to the accused or the
accused's lawyer.
20 (12) If before or at an accused's first appearance in court in relation
to a prosecution notice the accused requests the prosecutor to
give the accused a copy of the accused's criminal record, the
prosecutor must, if practicable, obey the request before or at the
appearance.
25 (13) If the prosecutor serves the accused with a written statement of
the material facts of a charge, the prosecutor may serve the
accused with another version of the statement --
(a) if the charge --
(i) is an either way charge that is to be dealt with
30 summarily; or
(ii) is of a simple offence,
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Procedure on charge of indictable offence Division 4
s. 36
at any time before the accused is asked to plead to the
charge by a court of summary jurisdiction; or
(b) in any other case -- at any time before the accused is
asked to plead to the charge by the court to which the
5 accused is committed for sentence or trial, irrespective
of whether the accused has pleaded before a court of
summary jurisdiction.
Division 4 -- Procedure on charge of indictable offence
36. Interpretation
10 In this Division, unless the contrary intention appears --
"bail documents", for an accused, means --
(a) any bail undertaking by the accused; and
(b) any surety undertaking in respect of the accused;
"disclosure/committal hearing" means a hearing under
15 section 44;
"relevant authorised officer" has the meaning given by
section 80;
"witness documents", in relation to a charge, means --
(a) any witness undertaking entered into under
20 Schedule 4 by a person who is or may be a witness in
relation to the charge; and
(b) any surety undertaking entered into under Schedule 4
by a person as a surety for such a witness.
37. Application of this Division
25 This Division applies if an accused is charged in a court of
summary jurisdiction with an indictable offence.
page 33
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Part 3 Prosecutions in courts of summary jurisdiction
Division 4 Procedure on charge of indictable offence
s. 38
38. No appearance by a party
(1) If on a court date for an indictable charge the prosecutor does
not appear, the court may --
(a) adjourn the charge and notify the prosecutor of the new
5 court date; or
(b) dismiss the charge for want of prosecution.
(2) If on a court date for an indictable charge the accused does not
appear the court must either --
(a) adjourn the charge and either --
10 (i) issue a summons to the accused that states the
new court date; or
(ii) make an order under the Bail Act 1982
section 31(2)(b) substituting the new court date,
as the case requires; or
15 (b) issue an arrest warrant for the accused.
(3) If an arrest warrant is issued under subsection (2)(b) the charge
is to be taken to have been adjourned until the date when the
accused next appears or is brought before the court in relation to
the charge.
20 39. Initial procedure
When or as soon as practicable after an accused's first
appearance in a court on an indictable charge, the court, before
requiring the accused to plead to the charge, must --
(a) be satisfied the accused has a copy of the prosecution
25 notice containing the charge and has had time to
consider the notice and seek legal advice about it;
(b) be satisfied the accused understands the charge and the
purpose of the proceedings;
(c) cause the accused to be given an approved notice
30 explaining the procedures in this Part;
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(d) if the prosecutor has already served the accused with the
material referred to in section 35(4) --
(i) if the charge is an either way charge -- proceed
in accordance with section 40; or
5 (ii) if the charge is not an either way charge --
proceed in accordance with section 41;
and
(e) if the prosecutor has not served the accused with the
material referred to in section 35(4) --
10 (i) proceed in accordance with section 35(10); and
(ii) if the material is subsequently served, proceed in
accordance with paragraph (d).
40. Either way charges
(1) This section applies if the charge is an either way charge.
15 (2) If The Criminal Code section 5 applies to the charge, the court
must give the prosecutor and the accused an opportunity to
apply under that section for the charge to be tried on indictment.
(3) If the court decides that the charge is to be tried on indictment,
the court must proceed in accordance with section 41.
20 (4) If the charge is to be tried summarily, the court must deal with
the charge summarily under Division 6 and may do so --
(a) with the consent of the prosecutor and the accused,
immediately; or
(b) otherwise, on a later date.
25 41. Charges that are to be tried on indictment
(1) This section applies if --
(a) the charge must be tried on indictment; or
(b) under The Criminal Code section 5 or any other written
law, the court has decided that the charge, being an
30 either way charge, is to be tried on indictment.
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(2) The court must --
(a) tell the accused that he or she is not required to plead to
the charge; and
(b) give the accused the opportunity to plead to the charge.
5 (3) If the accused pleads guilty to the charge, the court, without
convicting the accused, must commit the accused for sentence
to a superior court with jurisdiction to deal with the charge, and
comply with section 47(1).
(4) If the accused enters any plea other than a plea of guilty or does
10 not plead to the charge, the court must adjourn the charge to a
disclosure/committal hearing on a new court date that allows a
reasonable time for the prosecutor to comply with section 42.
42. Full disclosure by prosecutor
(1) In this section, unless the contrary intention appears --
15 "confessional material" of an accused charged with an offence,
means --
(a) a copy of any material referred to in the definition of
"confessional material" in section 35;
(b) a copy of any electronic recording, other than a
20 recording that is part of the material referred to in
paragraph (a), of a conversation between the accused
and a person in authority that is relevant to the charge
and that is in the possession of the organisation that
investigated the offence; and
25 (c) if the accused said anything that is relevant to the
charge to a person employed in the organisation that
investigated the offence and that was not so recorded,
a written version of the substance of what was said;
"evidentiary material" relevant to a charge, means --
30 (a) a copy of --
(i) every statement that has been made in
accordance with Schedule 3 clause 4 by;
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(ii) every recording that has been made in
accordance with Schedule 3 clause 6 of
evidence given by;
(iii) every recording that has been made under the
5 Evidence Act 1906 of; and
(iv) every other statement by,
any person who may be able to give evidence that is
relevant to the charge, irrespective of whether or not
it assists the prosecutor's case or the accused's
10 defence;
(b) if there is no statement or recording referred to in
paragraph (a) of a person who the prosecutor intends
to call as a witness, a written summary of the
evidence to be given by the person;
15 (c) a copy of any document or exhibit to which a
statement or recording referred to in paragraph (a)
refers;
(d) a copy of every other document or exhibit that the
prosecutor intends to tender in evidence at trial; and
20 (e) a copy of every other document or exhibit that may
assist the accused's defence,
that is in the possession of the organisation or person who
investigated the offence;
"serve" an accused, means to serve the accused in accordance
25 with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material
includes a requirement --
(a) if it is not practicable to copy a document or exhibit
referred to in paragraph (c), (d) or (e) of the definition of
30 "evidentiary material" in subsection (1) -- to serve a
notice that describes it and states where and when it can
be inspected;
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(b) if a copy of a statement or recording of a person is
served -- to also serve a copy of any statement or
recording of the person that contains material that is
inconsistent with that statement or recording;
5 (c) to serve notice of the name and, if known, the address of
any person from whom no statement, recording or report
has been obtained but who the prosecutor thinks may be
able to give evidence that may assist the accused's
defence and a description of the evidence concerned.
10 (3) The operation of this section is subject to any order made under
section 138, whether in relation to a requirement of this section
or a requirement of section 35.
(4) This section does not affect the operation of The Criminal Code
section 570A.
15 (5) As soon as practicable after a charge is adjourned under
section 41(4), the prosecutor must serve the accused with the
following --
(a) any confessional material of the accused that is relevant
to the charge and that the accused has not already
20 received from the prosecutor;
(b) any evidentiary material that is relevant to the charge;
(c) any other document that is prescribed.
(6) If, after complying with subsection (5) and before the charge is
finally dealt with, the prosecutor receives or obtains --
25 (a) confessional material or additional confessional material
that is relevant to the charge;
(b) additional evidentiary material that is relevant to the
charge;
(c) any statement or recording described in
30 subsection (2)(b); or
(d) the name or address of a person described in
subsection (2)(c),
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the prosecutor must serve it or a copy of it on the accused as
soon as practicable.
43. Administrative committals
(1) If, under section 41(4), a court adjourns a charge, then when or
5 at any time after the prosecutor complies with section 42 and
before the new court date set under section 41(4) for the
disclosure/committal hearing, the prosecutor may request the
accused to consent to the court committing the accused for
sentence or trial to a superior court with jurisdiction to deal with
10 the charge without a disclosure/committal hearing.
(2) The request must --
(a) be in writing in an approved form;
(b) if the charge is one of 2 or more charges in one
prosecution notice, relate to all of the charges in the
15 prosecution notice;
(c) if the accused is one of 2 or more accused named in one
prosecution notice, relate to all of the accused; and
(d) be served on the accused in accordance with Schedule 2
clause 2, 3 or 4.
20 (3) An accused who receives such a request may consent to it by --
(a) completing the approved form; and
(b) lodging the form with the court at least 5 working days
before the date set for the disclosure/committal hearing.
(4) An accused who is completing the approved form may state in it
25 the accused's plea to the charge.
(5) On receiving an approved form containing the accused's
consent, the court may, in the absence of the prosecutor and the
accused, commit the accused for trial or, if the accused has
pleaded guilty in the form, for sentence (without convicting the
30 accused) to a superior court with jurisdiction to deal with the
charge.
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(6) If an accused is charged with 2 or more offences in one
prosecution notice, the court may only commit the accused
under subsection (5) if the accused's consent relates to each
charge in the notice.
5 (7) If 2 or more accused are charged in one prosecution notice, the
court may only commit an accused under subsection (5) if the
court has received consents from each of the accused.
(8) If under subsection (5) a court commits an accused, the court
must --
10 (a) comply with section 44(2);
(b) notify the parties in writing of the committal; and
(c) cancel the disclosure/committal hearing.
(9) A party who is notified under subsection (8) is not required to
appear at the disclosure/committal hearing.
15 44. Disclosure/committal hearing, procedure on
(1) At a disclosure/committal hearing in relation to a charge, the
court must --
(a) if satisfied that the prosecutor has complied with
section 42 --
20 (i) require the accused to plead to the charge;
(ii) commit the accused for sentence or trial, as the
plea requires, to a superior court with jurisdiction
to deal with the charge; and
(iii) comply with subsection (2);
25 (b) if not so satisfied --
(i) adjourn the charge to another disclosure/
committal hearing on a new court date that
allows a reasonable time for the prosecutor to
comply with section 42;
30 (ii) order the prosecutor to comply with section 42
before that new court date; and
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(iii) if the prosecutor does not obey the order, adjourn
the charge again or dismiss it for want of
prosecution.
(2) As soon as practicable after committing the accused for
5 sentence or trial to a superior court under subsection (1), the
court of summary jurisdiction must --
(a) give the superior court a copy of --
(i) the prosecution notice containing the charge and
the information recorded under section 47(1);
10 (ii) any remand warrant for the accused;
(iii) any witness documents for the charge;
(iv) any order made under section 138; and
(v) any other document prescribed;
(b) if necessary, comply with the Bail Act 1982 section 27;
15 and
(c) give the relevant authorised officer a copy of --
(i) all documents that it has sent to the superior
court under paragraph (a); and
(ii) any bail documents for the accused.
20 45. Committal, prosecutor's duties after
(1) In this section, unless the contrary intention appears --
"confessional material" has the meaning given by section 42;
"evidentiary material" has the meaning given by section 42.
(2) Within the prescribed period after an accused is committed for
25 sentence under section 41(3) on a charge, the prosecutor must
give the relevant authorised officer --
(a) a copy of the written statement of material facts last
served on the accused under section 35;
(b) any confessional material of the accused that is relevant
30 to the charge;
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(c) a copy of the accused's criminal record; and
(d) a certificate under subsection (5).
(3) Within the prescribed period after an accused is committed for
sentence or trial under section 43(5) or 44(1)(a)(ii) on a charge,
5 the prosecutor must give the relevant authorised officer --
(a) a copy of the written statement of material facts last
served on the accused under section 35;
(b) any confessional material of the accused that is relevant
to the charge;
10 (c) any evidentiary material that is relevant to the charge,
including any thing referred to in section 42(2);
(d) anything that has been served on the accused under
section 42(6);
(e) a copy of the accused's criminal record; and
15 (f) a certificate under subsection (5).
(4) If at any time after a prosecutor complies with subsection (3) the
prosecutor, under section 42(6), serves anything on the accused,
the prosecutor must give the thing or a copy of it to the relevant
authorised officer as soon as practicable.
20 (5) The certificate required by subsection (2) or (3) must --
(a) be signed by a person who was involved in, and has
knowledge of, the investigation of the charge;
(b) certify that --
(i) section 35 and, if the case requires, section 42
25 have been complied with; and
(ii) the relevant authorised officer is being given a
copy of all confessional material and evidentiary
material that is relevant to the charge and that
has been served on or made available to the
30 accused under this Part;
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(c) state the person's grounds for so certifying and any
inquiries made by the person before so certifying, where
inquiry has been necessary; and
(d) contain any information prescribed.
5 (6) A person who knowingly or without reasonable diligence signs
a certificate under this section that is false in a material
particular commits an offence.
Penalty: $5 000.
46. Committal for sentence after conviction, procedure on
10 If a court of summary jurisdiction deals with an either way
charge summarily, convicts the accused (whether after a plea of
guilty or otherwise) and commits the accused for sentence to a
superior court with jurisdiction to deal with the charge, the court
of summary jurisdiction must --
15 (a) give the superior court --
(i) a copy of the prosecution notice containing the
charge and the information recorded under
section 47(1);
(ii) a summary of the court's findings of fact and
20 reasons for committing the accused for sentence;
(iii) any document that the court thinks is relevant to
sentencing the accused for the offence;
(iv) a copy of any remand warrant for the accused;
and
25 (v) any other document prescribed;
(b) if necessary, comply with the Bail Act 1982 section 27;
(c) give the relevant authorised officer a copy of --
(i) all documents that it has sent to the superior
court under paragraph (a);
30 (ii) any bail documents for the accused; and
(iii) any other document prescribed;
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and
(d) give the accused a copy of --
(i) any document sent to the superior court under
paragraph (a)(i), (ii) or (iii);
5 (ii) any other document sent under paragraph (a)
or (c) that the court thinks fit; and
(iii) any other document prescribed.
47. Committal for sentence or trial, matters to be recorded
(1) If a court of summary jurisdiction commits an accused to a
10 superior court for sentence or trial on an indictable charge,
whether or not it has convicted the accused of the charge, the
court must record on the prosecution notice --
(a) the accused's plea before the court;
(b) if the court convicted the accused, the fact that it did so;
15 (c) whether the court has ordered a pre-sentence report in
respect of the accused; and
(d) the date of the committal.
(2) A copy of a prosecution notice containing the matters recorded
under subsection (1) sent to a superior court is, in the absence of
20 evidence to the contrary, evidence of its contents and of any
matter recorded on it in under subsection (1).
Division 5 -- Procedure on charge of simple offence
48. Application of this Division
This Division applies if an accused is charged in a court of
25 summary jurisdiction with a simple offence.
49. Written plea, court to advise prosecutor
If a court receives a written plea from an accused to a charge,
the court must advise the prosecutor of it as soon as practicable.
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50. Written plea of not guilty
(1) This section applies if on the first court date for a charge the
prosecutor appears and the court has received a written plea of
not guilty to the charge by the accused.
5 (2) If on the first court date the accused appears, the court must
proceed in accordance with Division 6.
(3) If on the first court date the accused does not appear, the court
must adjourn the charge to a new court date.
(4) If on the new court date the accused appears, the court must
10 proceed in accordance with section 54 or Division 6, as the case
requires.
(5) If on the new court date the accused does not appear, the court
must proceed in accordance with section 53 or 55, as the case
requires.
15 51. Written plea of guilty
(1) This section applies if on a court date for a charge the
prosecutor appears and the court has received a written plea of
guilty to the charge by the accused.
(2) If the written plea of guilty purports to be signed by the accused
20 or on the accused's behalf by a lawyer or, if the accused is a
corporation, by a representative appointed under section 152, it
is admissible in evidence without proof that it was so signed, in
the absence of evidence to the contrary.
(3) On or as soon as practicable after the court date the court must
25 hear and determine the charge as if the accused had pleaded
guilty to the charge in person before the court.
(4) The hearing under subsection (3) may be conducted in the
absence of the accused or, if the accused appears voluntarily or
pursuant to a summons or warrant issued under section 139 or a
30 representative of the accused appears pursuant to a section 155
notice, in the presence of the accused.
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(5) Despite subsection (3), if the court, having considered any thing
said by the accused to the court, whether orally or in writing,
considers --
(a) that the accused may have a defence to the charge; or
5 (b) that the accused's version of the material facts of the
charge differs materially from those in the prosecution
notice or stated by the prosecutor to the court,
the court must --
(c) strike out the written plea of guilty to the charge;
10 (d) adjourn the charge to a new court date; and
(e) issue to the accused both --
(i) a court hearing notice that states the new court
date; and
(ii) an approved notice that explains why the charge
15 has not been dealt with.
(6) An accused who has entered a written plea to a charge may
notify the court before the charge is dealt with under
subsection (3) that the accused wants to withdraw the plea.
(7) If the court is notified under subsection (6) before the court date
20 for the charge, the court must advise the prosecutor of it as soon
as practicable.
(8) If the court is notified under subsection (6), then on the court
date for the charge, the court, despite subsection (3), must strike
out the guilty plea and enter a plea of not guilty on the accused's
25 behalf and --
(a) if the accused does not appear on that date, may hear
and determine the charge under section 55(4) or
Division 6 in the absence of the accused if --
(i) the court is satisfied that the accused has been
30 served under this Act with the prosecution notice
containing the charge and either a summons, or a
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court hearing notice, notifying the accused of
that date; and
(ii) the prosecutor appears and consents;
(b) otherwise, must --
5 (i) adjourn the charge to a new court date; and
(ii) issue an approved notice to both the prosecutor
and the accused advising them of that date.
(9) The approved notice must be served on the accused in
accordance with Schedule 2 clause 2, 3 or 4.
10 (10) On the new court date to which a charge is adjourned under
subsection (5)(d) or (8)(b)(i) the court must proceed in
accordance with section 52, 53, 54 or 55 or Division 6, as the
case requires.
52. No appearance by any party and no plea received
15 (1) If on a court date for a charge neither the prosecutor nor the
accused appears and the accused has not pleaded to the charge,
whether orally or by means of a written plea, the court must --
(a) adjourn the charge to a new court date and notify the
prosecutor of that date; and
20 (b) issue a court hearing notice to the accused that states
that date.
(2) If on the new court date neither the prosecutor nor the accused
appears, the court may dismiss the charge for want of
prosecution.
25 53. No appearance by any party but plea received
(1) If on a court date for a charge neither the prosecutor nor the
accused appears but the accused has pleaded to the charge,
whether orally or by means of a written plea, the court must --
(a) adjourn the charge to a new court date and notify the
30 prosecutor of that date; and
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(b) issue to the accused an approved notice that notifies the
accused of that date and explains why the charge has not
been dealt with.
(2) If on the new court date the prosecutor does not appear, then
5 whether or not the accused appears, the court may dismiss the
charge for want of prosecution.
(3) The approved notice must be served on the accused in
accordance with Schedule 2 clause 2, 3 or 4.
54. No appearance by prosecutor
10 If on a court date for a charge the prosecutor does not appear but
the accused does, then whether or not the court has received a
written plea to the charge by the accused, the court may --
(a) adjourn the charge to a new court date and give the
prosecutor and the accused approved notices that notify
15 them of that date; or
(b) dismiss the charge for want of prosecution.
55. No appearance by accused and no plea of guilty
(1) This section applies if on a court date for a charge the
prosecutor appears and the accused does not and the accused
20 has not pleaded guilty to the charge, whether orally or by means
of a written plea.
(2) If on the court date the court is satisfied that the accused has
been served under this Part with the prosecution notice
containing the charge and either a summons, a court hearing
25 notice, or an approved notice, notifying the accused of the court
date, the court may --
(a) adjourn the charge; or
(b) hear and determine the charge in the accused's absence.
(3) If the court adjourns the charge, the court may exercise any of
30 its powers in section 139 or 155 in order to compel the accused
to appear on the new court date.
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(4) If under subsection (2) or section 51(8)(a) the court decides to
hear and determine the charge in the accused's absence and the
prosecution notice is signed by a person who in the notice
purports to be an authorised investigator, the court --
5 (a) must presume, in the absence of evidence to the
contrary --
(i) that the prosecution notice was signed by an
authorised investigator who was acting in the
course of his or her duties as such; and
10 (ii) that the authorised investigator had the authority
to sign the prosecution notice;
and
(b) may take as proved any allegation in the prosecution
notice containing the charge that was served on the
15 accused.
(5) If under subsection (4) the court convicts the accused --
(a) the prosecutor must state aloud to the court the material
facts of the charge;
(b) section 129(4) applies; and
20 (c) in the absence of evidence to the contrary, the court
must take as proved any facts so stated.
56. Conviction of absent accused, sentencing procedure on
(1) This section applies if under section 51 or 55 a court convicts an
accused of a charge in the accused's absence.
25 (2) If the court, though not required by law to disqualify the
accused from holding or obtaining a licence under a written law,
intends to do so, then --
(a) if at the time of the conviction the accused is already so
disqualified, the court may make an order in the
30 accused's absence that disqualifies the accused from
holding or obtaining the licence; or
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(b) if at the time of the conviction the accused is not already
so disqualified, the court may either --
(i) make an order in the accused's absence that
disqualifies the accused from holding or
5 obtaining the licence and that comes into
operation 7 days after the date of the order; or
(ii) under the Sentencing Act 1995 section 14,
compel the accused to appear before the court so
that such an order can be made in the accused's
10 presence.
(3) The court must not, under subsection (2)(b)(ii), issue a warrant
for the accused's arrest under the Sentencing Act 1995
section 14 unless the court has first issued a summons under that
section to the accused and the court is satisfied that either --
15 (a) the summons has not been able to be served after
reasonable efforts; or
(b) the accused has not obeyed the summons.
Division 6 -- Procedure for dealing summarily with any charge
57. Application of this Division
20 (1) This Division applies if in a court of summary jurisdiction an
accused is charged with --
(a) an either way charge that is to be tried summarily by the
court; or
(b) a simple offence.
25 (2) If under Division 5 a court proceeds in accordance with this
Division, the court may nevertheless at any time exercise a
power under Division 5, and in particular under section 55, in
relation to any charge of a simple offence if the occasion to do
so arises.
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58. Appearance by both prosecutor and accused, procedure on
(1) This section applies if on the first court date, or any new court
date set under section 75, for a charge --
(a) both the prosecutor and the accused appear; and
5 (b) if the charge is of a simple offence, the court has not
received a written plea to the charge by the accused.
(2) If the date is the first court date for the prosecution notice, the
court may only hear and determine the charge if the prosecutor
consents but otherwise it must adjourn the charge.
10 (3) Subject to subsection (2), the court must proceed to deal with
the charge in accordance with this Division.
59. Initial procedure, pleading
(1) This section must be complied with --
(a) if an accused is charged with an either way charge that
15 is to be tried summarily -- when or as soon as
practicable after it is decided that the charge will be
dealt with summarily;
(b) if an accused is charged with a simple offence -- when
or as soon as practicable after the accused first appears,
20 unless the court has received a written plea of guilty to
the charge that has not, under section 51(5) or (6), been
struck out.
(2) Before requiring the accused to plead to the charge, the court
must --
25 (a) be satisfied the accused has a copy of the prosecution
notice containing the charge and has had time to
consider the notice and seek legal advice about it;
(b) be satisfied the accused understands the charge and the
purpose of the proceedings; and
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(c) if section 35 requires the prosecutor to serve the accused
with any material and the prosecutor has not done so,
proceed in accordance with section 35(10).
(3) After complying with subsection (2), the court must require the
5 accused to plead to the charge.
(4) Without limiting the operation of Part 5, Part 5 Division 2
applies when an accused is required to plead to a charge.
(5) This section does not prevent a court from requiring an accused
to plead to a charge at any subsequent time.
10 60. Plea of not guilty, procedure on
(1) In this section and sections 61 and 62, unless the contrary
intention appears --
"listed simple offence" means a simple offence that is
prescribed to be a listed simple offence for the purposes of
15 this section.
(2) This section applies if an accused pleads not guilty to --
(a) an either way charge that is to be dealt with summarily;
or
(b) a charge of a simple offence, whether orally or by means
20 of a written plea,
and the court does not discharge the accused under
section 128(2) or (3).
(3) In the case of an either way charge, the court must adjourn the
charge to a new court date that allows a reasonable time for --
25 (a) the prosecutor to comply with section 61; and
(b) the accused to comply with section 62.
(4) In the case of a charge of a listed simple offence, the court --
(a) may order the accused to comply with section 62; and
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Procedure for dealing summarily with any charge Division 6
s. 61
(b) in any event must adjourn the charge to a new court date
that allows a reasonable time for --
(i) the prosecutor to comply with section 61; and
(ii) the accused to comply with section 62 if ordered
5 to do so under paragraph (a).
(5) In the case of a charge of any other simple offence, the court --
(a) may order the prosecutor to serve the accused with any
confessional material (as defined in section 42(1)) of the
accused that is relevant to the charge and that the
10 accused has not already received from the prosecutor;
(b) if it makes an order under paragraph (a), may also order
the prosecutor to comply with section 61; and
(c) in any event must adjourn the charge to a new court date
that allows a reasonable time for the prosecutor to
15 comply with any order made under paragraph (a) or (b).
(6) The new court date to which a charge is adjourned under
subsection (3), (4) or (5) may be the date for the trial of the
charge or some date prior to that date, as the court decides.
(7) On the date for the trial of the charge, the court may proceed to
20 conduct a trial of the charge if all parties appear but otherwise
may proceed under section 53, 54 or 55, as the case requires.
61. Disclosure by prosecutor
(1) In this section, unless the contrary intention appears --
"confessional material" has the meaning given by section 42;
25 "evidentiary material" has the meaning given by section 42;
"serve" an accused, means to serve the accused in accordance
with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material
includes a requirement to serve the things that are required to be
30 served under section 42(2).
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Part 3 Prosecutions in courts of summary jurisdiction
Division 6 Procedure for dealing summarily with any charge
s. 61
(3) The operation of this section is subject to any order made under
section 138, whether in relation to a requirement of this section
or a requirement of section 35.
(4) This section does not affect the operation of The Criminal Code
5 section 570A.
(5) If --
(a) an either way charge is adjourned under section 60(3);
(b) a charge of a listed simple offence is adjourned under
section 60(4); or
10 (c) an order is made under section 60(5)(b) in respect of a
charge of any other simple offence,
the prosecutor must serve the accused with the following --
(d) any confessional material of the accused that is relevant
to the charge and that the accused has not already
15 received from the prosecutor;
(e) any evidentiary material that is relevant to the charge;
(f) a copy of the accused's criminal record, if the accused
has not already received it from the prosecutor;
(g) any document that is prescribed.
20 (6) The requirements of subsection (5) must be complied with as
soon as practicable after the case is adjourned under
section 60(3), (4) or (5) and in any event at least 14 days before
the trial date.
(7) If, after complying with subsections (5) and (6) and before the
25 charge is finally dealt with, the prosecutor receives or obtains --
(a) confessional material or additional confessional material
that is relevant to the charge;
(b) additional evidentiary material that is relevant to the
charge;
30 (c) any statement or recording described in section 42(2)(b);
or
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Procedure for dealing summarily with any charge Division 6
s. 62
(d) the name or address of a person described in
section 42(2)(c),
the prosecutor must serve it or a copy of it on the accused as
soon as practicable.
5 62. Disclosure by accused of certain matters in certain cases
(1) In this section, unless the contrary intention appears --
"alibi evidence", in respect of an accused charged with an
offence, means any evidence that tends to show that the
accused was not present when the offence is alleged to
10 have been committed, or when an act or omission material
to the offence is alleged to have occurred;
"expert evidence material" relevant to a charge, means --
(a) a copy of every statement, recording or report
obtained by the accused of any person who may be
15 able to give expert evidence that is relevant to the
charge;
(b) written notice of the name and, if known, the address,
of any person from whom no statement, recording or
report has been obtained by the accused but who the
20 accused --
(i) in relation to the charge, consulted as an
expert; or
(ii) intends to call to give expert evidence that is
relevant to the charge;
25 and
(c) a written description of the expert evidence referred
to in paragraph (b)(ii);
"serve" means serve on the prosecutor in accordance with
Schedule 2 clause 2 or by post.
30 (2) The operation of this section, other than subsection (4)(a), is
subject to any order made under section 138.
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Part 3 Prosecutions in courts of summary jurisdiction
Division 6 Procedure for dealing summarily with any charge
s. 62
(3) This section applies --
(a) in the case of an either way charge that is to be dealt
with summarily -- if the prosecutor has complied with
section 61;
5 (b) in the case of a charge of a listed simple offence, if --
(i) an order has been made under section 60(4)(a);
and
(ii) the prosecutor has complied with section 61.
(4) If this section applies, the accused, at least 7 days before the
10 trial date, must serve the prosecutor with the following --
(a) if the accused intends to give or adduce any alibi
evidence in relation to the charge, written notice of --
(i) the accused's intention to do so;
(ii) the details of the nature of the evidence; and
15 (iii) the name of each person who the accused intends
to call to give any such evidence and the
person's address or other information sufficient
to enable the person to be located;
(b) any expert evidence material that is relevant to the
20 charge;
(c) written notice of the factual elements of the offence that
the accused may contend cannot be proved;
(d) written notice of any objection by the accused to --
(i) any document that the prosecutor intends to
25 adduce at the trial; or
(ii) any evidence to be given by a witness whom the
prosecutor intends to call at the trial,
and the grounds for the objection.
(5) If, after complying with subsection (4), an accused receives or
30 obtains evidence, information or material referred to in
subsection (4), the accused must serve it on the prosecutor as
soon as practicable.
page 56
Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Procedure for dealing summarily with any charge Division 6
s. 63
63. Non-disclosure, consequences of
(1) In this section, unless the contrary intention appears --
"disclosure requirement" means a requirement imposed on a
party by section 61 or 62 and any order made under
5 section 138.
(2) If at the trial in a case the court is satisfied that a party has not
obeyed a disclosure requirement, the court, on the application of
a party affected by the breach, may adjourn the trial to a date
that allows enough time --
10 (a) if necessary, for the party in breach of the requirement
to obey it; and
(b) for a party affected by the breach to investigate properly
any evidence or other matter disclosed in accordance
with the requirement and to obtain any further evidence
15 that may be necessary as a result of the disclosure.
(3) On the resumption of a trial that is adjourned under
subsection (2) a party affected by the breach --
(a) may require a person who has given evidence, including
the accused, to be recalled as a witness;
20 (b) may cross-examine or further cross-examine the person
about the evidence or other matter disclosed in
accordance with the disclosure requirement; and
(c) may adduce evidence in rebuttal of the evidence or other
matter disclosed in accordance with the disclosure
25 requirement.
(4) If a party does not obey a disclosure requirement, the court, in
making an order for costs under section 67 or the Official
Prosecutions (Accused's Costs) Act 1973 in favour of the party,
may reduce the amount that would otherwise be ordered by the
30 amount of the costs that a party affected by the breach incurred
as a result of the breach.
page 57
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 6 Procedure for dealing summarily with any charge
s. 64
64. Issues that may be dealt with before trial
(1) At any time before an accused's trial begins in a court, the court
may --
(a) determine any question of law or procedure, give any
5 direction, or do any other thing, that is necessary or
convenient in order to facilitate the preparation for, or
the conduct of, the trial, or that is otherwise desirable;
(b) deal with any application made by a party under this
Part, Part 5 or Schedule 3;
10 (c) exercise any power under this Act that may be exercised
by the court on its own initiative;
(d) permit the accused to make an admission under the
Evidence Act 1906 section 32;
(e) make any order under section 137.
15 (2) The person or persons constituting a court dealing with a matter
under subsection (1) need not be the person or persons
constituting the court when the trial of the accused takes place.
(3) Any proceedings under subsection (1) are to be taken to be part
of the accused's trial.
20 (4) The powers of a court in a trial include, but are not limited to,
the powers in this section.
65. Trials, procedure on
(1) The procedure to be followed by a court of summary
jurisdiction in a trial is in this Part and Part 5.
25 (2) If there is an inconsistency between this Part and Part 5, this
Part prevails.
(3) To the extent that the procedure to be followed by a court of
summary jurisdiction in a trial is not in this Part or Part 5, the
procedure to be followed is to be the same as that followed in a
30 criminal trial in the Supreme Court without a jury.
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Procedure for dealing summarily with any charge Division 6
s. 66
(4) Without limiting subsection (3), the procedure to be followed in
a court of summary jurisdiction in relation to --
(a) the order in which the parties present their cases;
(b) the examination, cross-examination and re-examination
5 of witnesses;
(c) the admission of evidence; and
(d) any submission of no case to answer,
is to be the same as that followed in a criminal trial in the
Supreme Court, unless this Act provides otherwise.
10 66. Trial on the papers
(1) A court may --
(a) if a plea of not guilty is entered to a charge, determine
the charge; or
(b) if a plea referred to in section 126(1)(a), (b) or (c) is
15 entered to a charge, decide the issues raised by the plea,
on the evidence contained in documents lodged with the court
by the prosecutor and the accused if --
(c) the accused requests the court to do so;
(d) the prosecutor consents to the court doing so;
20 (e) both the accused and the prosecutor agree on which of
the documents they have lodged the court is to consider
to determine the charge or to decide the issues; and
(f) the court is satisfied that it is in the interests of justice to
do so.
25 (2) The court must admit into evidence any document on which the
parties have agreed under subsection (1)(e).
(3) The court must allow both parties to make oral or written
submissions to the court on the charge or issues.
page 59
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 6 Procedure for dealing summarily with any charge
s. 67
67. Costs
(1) Subject to the Official Prosecutions (Accused's Costs) Act 1973
and this section, a successful party to a prosecution is entitled to
the party's costs.
5 (2) If a court convicts an accused of a charge, the court may order
the accused to pay all or a part of the prosecutor's costs.
(3) The amount of costs ordered under subsection (2) may be
determined in accordance with the relevant determination made
under the Legal Practice Act 2003 section 210 for the purposes
10 of the Official Prosecutions (Accused's Costs) Act 1973 and
with the Legal Practice Act 2003 section 215.
(4) A court may reduce the costs that it would otherwise have
awarded, or refuse to award costs, under this section to a party
if --
15 (a) any act or omission of or caused by the party (other than
an act or omission that is the subject of a charge) was
unreasonable in the circumstances and contributed to the
institution or continuation of the case; or
(b) any act or omission of or caused by the party during or
20 in the conduct of the case was calculated to prolong the
case unnecessarily or cause unnecessary expense.
(5) The court may adjourn an application for costs, or the
determination of the amount of costs to be paid.
(6) A question adjourned under subsection (5) is to be dealt with by
25 a magistrate and may be dealt with in chambers.
68. Court must record its decision
If a court determines a charge, or dismisses a charge for want of
prosecution, it must record on the prosecution notice the
determination or dismissal and any order it makes as a result of
30 the determination or dismissal.
page 60
Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Setting aside decisions made in the absence of a party Division 7
s. 69
69. Conviction and sentence, accused to be notified of
(1) As soon as practicable after a court convicts an accused of a
charge, the court must issue to the accused an approved notice
that states --
5 (a) the offence of which the accused has been convicted;
(b) any sentence imposed for the offence and any other
order made by the court as a result of the conviction;
and
(c) any other information prescribed.
10 (2) The notice need not include the reasons for the decision.
(3) The approved notice must be served on the accused in
accordance with Schedule 2 clause 2, 3 or 4.
Division 7 -- Setting aside decisions made in the absence
of a party
15 70. Interpretation
In this Division, unless the contrary intention appears --
"decision" means a determination of a charge, or a dismissal of
a charge for want of prosecution.
71. Making an application to set aside
20 (1) If in the prosecutor's absence a court makes a decision on a
charge, the prosecutor may apply to the court for an order that
sets aside the decision and orders the charge to be dealt with
again on the grounds that the prosecutor --
(a) did not receive notice of the court date on which the
25 decision was made;
(b) did not receive such notice in enough time to enable the
prosecutor to appear on the court date; or
(c) received such notice in enough time to enable the
prosecutor to appear on the court date but did not appear
30 for some good reason.
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 7 Setting aside decisions made in the absence of a party
s. 71
(2) If in an accused's absence a court convicts the accused of a
charge, the accused may apply to the court for an order that sets
aside the decision and orders the charge to be dealt with again
on the grounds that the accused --
5 (a) did not receive notice of the court date on which the
conviction occurred;
(b) did not receive such notice in enough time to enable the
accused to appear on the court date; or
(c) received such notice in enough time to enable the
10 accused to appear on the court date but did not appear
for some good reason.
(3) If in an accused's absence a court disqualifies the accused from
holding or obtaining a licence under a written law, an
application made under subsection (2) may include an
15 application for an order that suspends the disqualification until
the application made under subsection (2) is decided.
(4) An application made under this section --
(a) may relate to 2 or more decisions made at one hearing;
and
20 (b) must be made --
(i) to the court's registry at the place where the
decision was made; and
(ii) in accordance with the regulations.
(5) A court must refuse an application made under this section if --
25 (a) the application is made in respect of a decision after an
appeal against the decision has been commenced under
the Criminal Appeals Act 2004; or
(b) after the application is made in respect of a decision and
before it is decided, an appeal against the decision is
30 commenced under the Criminal Appeals Act 2004.
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Setting aside decisions made in the absence of a party Division 7
s. 72
72. Dealing with an application to set aside
(1) If an application made under section 71(1) is made within
21 days after the date of the decision to which it relates, the
court, without hearing the parties, may grant the application if it
5 is satisfied that the grounds of the application are made out by
the application and any supporting evidence.
(2) If an application made under section 71(2) --
(a) is made within 21 days after the date of the decision to
which it relates; and
10 (b) is not made by an accused who is in custody and who
seeks to be released on bail until the hearing at which
the charge is dealt with again,
the court, without hearing the parties, may grant the application
if it is satisfied that the grounds of the application are made out
15 by the application and any supporting evidence.
(3) If an application is made under section 71(3), then irrespective
of whether the associated application made under section 71(2)
was made within 21 days after the date of the decision to which
it relates or not, the court, without hearing the parties, may grant
20 the application if it is satisfied that there is a reasonable prospect
of the application made under section 71(2) succeeding.
(4) If an application made under section 71(1), (2) or (3) is not
granted, respectively, under subsection (1), (2) or (3) of this
section, the court must --
25 (a) as the case requires, set a date for the hearing of the
application made under section 71(1) or (2);
(b) set a date for the hearing of the application made under
section 71(3), if any, which may be a date before the
date set under paragraph (a); and
30 (c) issue an approved notice to the parties advising them of
the hearing date or dates, as the case requires.
page 63
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 7 Setting aside decisions made in the absence of a party
s. 73
(5) At the hearing of an application made under section 71(1) or (2)
the court may grant the application if it is satisfied that it is in
the interests of justice to do so.
(6) At the hearing of an application made under section 71(3) the
5 court may grant the application if the court is satisfied --
(a) that there is a reasonable prospect of the application
made under section 71(2) succeeding; and
(b) that it is in the interests of justice to do so.
(7) The court dealing with an application made under section 71
10 need not be constituted by the same person or persons who
constituted the court that made the decision to which the
application relates.
73. Court may set aside decision on its own initiative
Whether or not an application is made under section 71, a court
15 on its own initiative may make an order that sets aside a
decision it has made in a party's absence on a charge and that
orders that the charge be dealt with again, if it is satisfied that it
is in the interests of justice to do so.
74. Effect of decisions under s. 72 or 73
20 (1) If under section 72 or 73 a court sets aside a conviction --
(a) any sentence imposed or other order made as a result of
the conviction is set aside;
(b) any action to enforce the conviction must cease and the
accused, if then in custody for non payment of any sum
25 of money ordered to be paid as a result of the
conviction, must be released;
(c) if as a result of the conviction the accused was
disqualified from holding or obtaining a licence under a
written law, the court must notify the person responsible
30 for issuing the licence of the fact that the
disqualification is set aside; and
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Setting aside decisions made in the absence of a party Division 7
s. 74
(d) any licence suspension order made under the Fines,
Penalties and Infringement Notices Enforcement
Act 1994 Part 4 in respect of any fine imposed as a result
of the conviction is to be taken as having been
5 cancelled --
(i) in the case of an application made under
section 71(2)(a) or (b), as at the time the licence
suspension order was made;
(ii) in the case of an application made under
10 section 71(2)(c), as at the time the application
was made; or
(iii) if the conviction is set aside under section 73, as
at the time the licence suspension order was
made,
15 unless the court orders otherwise.
(2) If a court grants an application made under section 71(3) and the
application made under 71(2) is subsequently refused --
(a) the order suspending the disqualification ceases to have
effect; and
20 (b) any period during which the disqualification was
suspended must not be taken into account in calculating
the period of the disqualification.
(3) If under section 72 or 73 a court orders that a charge be dealt
with again, the court --
25 (a) may deal with the charge again immediately if the
parties consent; but
(b) otherwise, must set a court date when the charge will be
dealt with again and may make any orders and issue any
documents that are necessary as a consequence.
30 (4) The court that deals with a charge again as a result of an order
made under section 72 or 73 need not be constituted by the
same person or persons who constituted the court that made the
order or the decision to which the application relates.
page 65
Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 8 Miscellaneous
s. 75
Division 8 -- Miscellaneous
75. Adjourning charges
(1) This section does not apply to a charge if the accused has been
convicted of it and is awaiting sentence.
5 (2) A court has a general power to adjourn a charge at any time and
may do so whether or not --
(a) the prosecutor or the accused is present;
(b) the accused has pleaded to the charge; or
(c) any evidence has been given.
10 (3) Without limiting subsection (2), a court may adjourn a charge
for any good reason including for the purpose of allowing --
(a) the accused to consider the prosecution notice or seek
legal advice;
(b) the services of an interpreter to be obtained.
15 (4) If a court adjourns a charge --
(a) it must adjourn it either to a later time of the day on
which the charge is adjourned ("new time") or to a date
set by the court ("new court date");
(b) it must ensure the parties are advised of the time and
20 place to which the charge is adjourned and for that
purpose may make any order and issue any document
necessary;
(c) it may make any order and issue any document needed
to ensure that any person, including the accused, whose
25 presence will be needed, appears at the time and place to
which the charge is adjourned.
(5) If a court adjourns a charge to a new time it may, subject to the
Bail Act 1982, order that the accused be kept in custody until
that time.
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Miscellaneous Division 8
s. 76
(6) If a court adjourns a charge to a new court date it may, subject
to the Bail Act 1982, order that the accused be kept in custody
until that date.
(7) If a court makes an order under subsection (6), the new court
5 date must not be more than 8 days after the date on which the
charge is adjourned, unless the accused consents.
(8) If a court makes an order under subsection (6) it must issue a
remand warrant that states the new court date.
(9) A remand warrant may relate to more than one charge.
10 76. Staying a prosecution permanently
(1) A court may at any time order that the prosecution of a charge
be stayed permanently, if it is satisfied that the charge is an
abuse of the process of the court.
(2) On making such an order the court --
15 (a) may discharge the accused from the charge; and
(b) may make any orders it thinks fit, including orders as to
bail and orders under Schedule 4, to ensure the accused
and any witness are amenable to justice until --
(i) the time for appealing against the stay order has
20 expired; and
(ii) any appeal against the stay order is concluded.
77. Video or audio link, use of when accused in custody etc.
(1) This section applies if --
(a) an accused is required to appear before a court in
25 proceedings on a charge against the accused other than
the trial of the charge or sentencing proceedings;
(b) the accused is in custody or detention, whether in
relation to the charge or not; and
(c) there is a video link or audio link between the place of
30 custody or detention and the court.
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Criminal Procedure Bill 2004
Part 3 Prosecutions in courts of summary jurisdiction
Division 8 Miscellaneous
s. 78
(2) If the accused's appearance will be his or her first in relation to
the charge, the person in charge of the accused must ensure the
accused is brought before the court in person unless the court
has ordered that the accused be brought before the court by
5 means of a video link or audio link.
(3) If the accused's appearance will be his or her second or
subsequent in relation to the charge, the person in charge of the
accused must, despite any warrant that requires the accused be
brought before the court, ensure the accused appears before the
10 court by means of the video link or audio link, unless the court
has ordered that the accused be brought before the court in
person.
(4) A court may make an order under subsection (2) or (3) at any
time on its own initiative or on an application by a party to the
15 case if it is satisfied it is in the interests of justice to do so.
(5) An audio link must not be used under this section unless a video
link is not available and cannot reasonably be made available.
(6) When the accused appears before the court by means of a video
link or audio link, the court may, in relation to the charge,
20 exercise any power in this Act and comply with the Bail
Act 1982 as if the accused were personally present before it.
78. Exceptions etc., proof of in simple offences
(1) In this section, unless the contrary intention appears --
"exception" includes a condition, excuse, exemption, proviso
25 and qualification.
(2) An exception in respect of a simple offence need not be
specified in a charge of the offence.
(3) If a written law creates a simple offence and provides an
exception in respect of the offence, the exception is to be taken
30 not to apply unless the accused proves, on the balance of
probabilities, that it does.
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Criminal Procedure Bill 2004
Prosecutions in courts of summary jurisdiction Part 3
Miscellaneous Division 8
s. 79
(4) If an accused adduces evidence for the purpose of proving that
an exception does apply, the court may allow the prosecutor to
re-open his or her case in order to adduce evidence to rebut that
evidence.
5 79. Dismissing a charge for want of prosecution, consequences
of
(1) A court that dismisses a charge for want of prosecution --
(a) must not determine the charge; and
(b) may discharge the accused from the charge.
10 (2) The dismissal of a charge for want of prosecution does not
operate as an acquittal of the accused of the charge.
(3) The dismissal of an indictable charge for want of prosecution
does not affect the operation of Part 4 Division 2.
page 69
Criminal Procedure Bill 2004
Part 4 Prosecutions in superior courts
Division 1 Preliminary
s. 80
Part 4 -- Prosecutions in superior courts
Division 1 -- Preliminary
80. Interpretation
(1) In this Part, unless the contrary intention appears --
5 "authorised officer" means a person listed in subsection (2);
"committed", in relation to an accused, means committed by a
court of summary jurisdiction to the District Court or the
Supreme Court, whether for trial or for sentence, on an
indictable charge;
10 "prescribed" means prescribed by rules of court;
"relevant authorised officer", in relation to an indictable
charge, means the authorised officer who is responsible for
the prosecution of the charge in a superior court.
(2) For the purposes of this Part each of the following is an
15 authorised officer --
(a) the Attorney General;
(b) the Solicitor-General;
(c) the State Solicitor;
(d) the DPP;
20 (e) a member of the DPP's staff appointed in writing by the
DPP as an authorised officer;
(f) a person appointed under section 182 to prosecute
indictable offences who is acting in accordance with the
terms of the appointment.
25 81. Application of this Part
(1) This Part operates in respect of prosecutions for indictable
offences in the superior courts.
(2) This Part does not operate in respect of prosecutions for
indictable offences in the courts of summary jurisdiction.
page 70
Criminal Procedure Bill 2004
Prosecutions in superior courts Part 4
Commencing and discontinuing a prosecution Division 2
s. 82
82. Court may act on its own initiative etc.
(1) A superior court's power under this Act to make an order in a
case may be exercised by the court on its own initiative or on
the application of any party unless --
5 (a) this Part provides that the power may be exercised on
the application of a particular party or person; or
(b) the contrary intention otherwise appears.
(2) An entitlement under this Part to apply for an order includes an
entitlement to apply for an order that amends or cancels the
10 order, unless the contrary intention appears.
(3) A power under this Part to make an order includes a power to
amend or cancel the order, unless the order finally concluded
the case or the contrary intention appears.
Division 2 -- Commencing and discontinuing a prosecution
15 83. How a prosecution is commenced
(1) A prosecution in a superior court against a person for an
indictable offence may only be commenced by an authorised
officer acting in the course of his or her duties.
(2) To commence a prosecution in a superior court against a person
20 for an indictable offence, an indictment that alleges the offence
must be lodged with the court.
(3) A prosecution in a superior court of a person for an indictable
offence may be commenced at any time, unless another written
law provides otherwise.
25 (4) If in respect of an indictable charge ("charge A") an accused is
committed by a court of summary jurisdiction --
(a) for sentence, not having been convicted of charge A by
that court; or
page 71
Criminal Procedure Bill 2004
Part 4 Prosecutions in superior courts
Division 2 Commencing and discontinuing a prosecution
s. 84
(b) for trial,
then, either --
(c) an indictment containing charge A must be lodged; or
(d) proceedings against the accused on charge A must be
5 discontinued; even if, instead of being charged with
charge A, the accused is charged on indictment with
some other offence that is alleged to arise from the acts
or omissions that gave rise to charge A.
(5) If an accused is committed for sentence for an offence by a
10 court of summary jurisdiction having been convicted of it by
that court --
(a) an indictment containing the charge must not be lodged,
despite subsection (2); and
(b) the prosecution notice sent to the superior court under
15 section 46 on which is recorded the matters required by
section 47(1) is to be taken to be an indictment.
(6) A prosecution for an indictable offence may be commenced in a
superior court against a person even if the person has not
been --
20 (a) charged with the offence in a court of summary
jurisdiction; or
(b) committed to a superior court on a charge of the offence.
84. Where a prosecution may be commenced
(1) A prosecution for an indictable offence may be commenced in
25 any superior court that has jurisdiction to determine a charge of
the offence, even if it is not the court to which the accused was
committed.
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Commencing and discontinuing a prosecution Division 2
s. 85
(2) An indictment must specify the place where it is to be dealt with
by the superior court being --
(a) Perth, or a circuit town proclaimed under the Supreme
Court Act 1935 section 46(1), if the prosecution is being
5 commenced in the Supreme Court; or
(b) a place where the District Court is held, if the
prosecution is being commenced in that court,
but the place need not be the place to which the accused was
committed.
10 (3) Irrespective of where it is to be dealt with, an indictment must
be lodged at Perth.
(4) If --
(a) a prosecution is commenced in a superior court that is
not the court to which the accused was committed; or
15 (b) an indictment is to be dealt with at a place that is not the
place to which the accused was committed,
the superior court must ensure that written notice of the court in
which, and the place where, the indictment will be dealt with is
given to --
20 (c) the accused and any surety for the accused; and
(d) any witness who is subject to a witness undertaking, and
any surety for a witness.
(5) On notice being given under subsection (4) to a person, any bail
undertaking, witness undertaking or surety undertaking by the
25 person is to be taken to have been amended to specify the court
at the place specified in the notice instead of the court at the
place specified in the undertaking.
85. Indictments, formal requirements and service of
(1) Schedule 1 has effect in relation to indictments and charges in
30 them.
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Part 4 Prosecutions in superior courts
Division 2 Commencing and discontinuing a prosecution
s. 86
(2) An indictment must --
(a) be in writing in a prescribed form;
(b) comply with Schedule 1 Division 2;
(c) be signed by an authorised officer; and
5 (d) be lodged in the prescribed manner.
(3) As soon as practicable after an indictment is lodged with a
superior court, the prosecutor must serve it on the accused in
accordance with Schedule 2 clause 2, 3 or 4.
(4) An accused is entitled to receive from a court at no cost a copy
10 of any indictment lodged with the court against the accused.
86. Accused not committed may be arrested etc.
(1) This section applies if --
(a) a prosecution for an indictable offence is commenced in
a superior court against an accused;
15 (b) the accused has not been committed in respect of the
offence; and
(c) the accused is not in custody or on bail in respect of the
charge.
(2) The superior court, on the application of the prosecutor and
20 without requiring any evidence as to the charge, may issue --
(a) a summons to the accused and, if it is not obeyed, an
arrest warrant for the accused; or
(b) an arrest warrant for the accused, even if a summons has
not been issued previously.
25 (3) Sections 31 and 32, with any necessary changes, apply
respectively to and in respect of such a warrant and summons.
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Prosecutions in superior courts Part 4
Commencing and discontinuing a prosecution Division 2
s. 87
87. Discontinuing a prosecution
(1) At any time after a court of summary jurisdiction commits an
accused --
(a) for sentence on an indictable charge, not having
5 convicted the accused of the charge; or
(b) for trial on an indictable charge,
and before an indictment is lodged that contains the charge, the
relevant authorised officer may lodge with the superior court
concerned a notice discontinuing the prosecution of the charge.
10 (2) If a court of summary jurisdiction commits an accused for
sentence for an indictable offence, having convicted the accused
of the offence, proceedings against the accused for the offence
cannot be discontinued.
(3) At any time after an indictment is lodged with a superior court,
15 the relevant authorised officer may lodge with the court a notice
discontinuing the prosecution of the charge, or of some or all of
the charges, in the indictment, as the officer decides.
(4) A notice under subsection (1) or (3) must be --
(a) in writing in a prescribed form;
20 (b) signed by the relevant authorised officer; and
(c) lodged in the prescribed manner.
(5) When a notice is lodged under subsection (1) or (3), the court
may consent or, in exceptional circumstances, refuse to consent
to the discontinuance of the prosecution concerned.
25 (6) If a prosecution of a charge is discontinued, the court must
discharge the accused from the charge.
(7) The fact that the prosecution of an accused for a charge is
discontinued under this section does not prevent the accused
from being charged later with the same offence, either in a court
30 of summary jurisdiction or in a superior court.
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Criminal Procedure Bill 2004
Part 4 Prosecutions in superior courts
Division 3 General matters
s. 88
Division 3 -- General matters
88. Accused's presence, when required
(1) In this section, unless the contrary intention appears --
"proceedings" includes proceedings under section 98, at trial,
5 and under the Bail Act 1982, the Evidence Act 1906, the
Sentencing Act 1995 or the Young Offenders Act 1994.
(2) This section applies whether an accused is being tried alone or
with others.
(3) Proceedings that relate to an accused must take place in his or
10 her presence unless section 140 or the Sentencing Act 1995
provides otherwise.
(4) The court may order proceedings that relate to an accused to
proceed in the accused's absence if it is satisfied --
(a) that the accused's interests will not be prejudiced by his
15 or her absence; and
(b) that to do so will not be contrary to the interests of
justice.
(5) This section does not prevent a court from allowing an accused
to be present before the court by means of a video link or audio
20 link or from taking evidence from an accused by either such
means.
89. Adjourning cases
(1) A superior court to which an accused is committed on a charge
or in which an accused is charged, may at any time adjourn
25 proceedings on the charge whether or not --
(a) the prosecutor or the accused is present;
(b) the accused has pleaded to the charge;
(c) a jury has been sworn; or
(d) any evidence has been given.
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Prosecutions in superior courts Part 4
General matters Division 3
s. 90
(2) A superior court that adjourns proceedings on a charge --
(a) may do so until a set date or until a date to be set by the
court;
(b) may discharge the jury, if any, from giving its verdict on
5 the charge;
(c) may, subject to the Bail Act 1982, order that the accused
be kept in custody; and
(d) may make any order and issue any document needed to
ensure that any person, including the accused, whose
10 presence will be needed, appears at the time and place to
which the proceedings are adjourned.
(3) A remand warrant issued under subsection (2) may relate to
more than one charge.
90. Staying a prosecution permanently
15 (1) A superior court to which an accused is committed on a charge
or in which an accused is indicted on a charge may at any time
order that the prosecution of the charge be stayed permanently,
if it is in the interests of justice to do so.
(2) On making such an order the court --
20 (a) may discharge the jury, if any, from giving its verdict on
the charge;
(b) may discharge the accused from the charge; and
(c) may make any orders it thinks fit, including orders as to
bail and orders under Schedule 4, to ensure the accused
25 and any witness are amenable to justice until --
(i) the time for appealing against the stay order has
expired; and
(ii) any appeal against the stay order is concluded.
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Criminal Procedure Bill 2004
Part 4 Prosecutions in superior courts
Division 3 General matters
s. 91
91. Accused may be required to plead at any time
(1) A court may require an accused to plead to a charge in an
indictment at any time after the indictment is lodged with the
court.
5 (2) Without limiting the operation of Part 5, Part 5 Division 2
applies when an accused is required to plead to a charge.
92. Plea of not guilty, consequences of
If an accused pleads not guilty to a charge, or such a plea is
entered by a superior court on behalf of the accused, then
10 unless --
(a) the accused's plea is not accepted under section 99; or
(b) an order is made under section 118 that the trial of the
charge be by a judge alone without a jury,
the accused is entitled to have the issues of fact raised by the
15 plea tried by a judge and jury.
93. Plea of not guilty on account of unsoundness of mind,
dealing with
(1) If an accused pleads not guilty to a charge on account of
unsoundness of mind and the judge is satisfied --
20 (a) that the only fact in issue between the accused and the
State is whether, under The Criminal Code section 27,
the accused is not criminally responsible for an act or
omission on account of unsoundness of mind;
(b) that the prosecutor consents, and the accused does not
25 object, to the judge doing so; and
(c) that it is in the interests of justice to do so,
the judge --
(d) may decide the issue referred to in paragraph (a) on any
evidence and in any manner the judge thinks just;
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Pre-trial matters Division 4
s. 94
(e) for that purpose, may ascertain any fact by the verdict of
a jury or otherwise;
(f) may find the accused not guilty of the charge on account
of unsoundness of mind; and
5 (g) if such a finding is made and a jury has been sworn to
give a verdict on the charge, must discharge the jury
from giving its verdict on the charge.
(2) Subsection (1) is in addition to and does not affect the operation
of section 146.
10 Division 4 -- Pre-trial matters
94. Court may order prosecutor to commence prosecution etc.
(1) This section does not apply if an accused is committed by a
court of summary jurisdiction for sentence for an offence having
been convicted by the court of it.
15 (2) An accused who is committed to a superior court on a charge
may apply at any time to the court for an order that the relevant
authorised officer act under Division 2 to commence or
discontinue a prosecution against the accused.
(3) On such an application, or on its own initiative, the court may
20 order the authorised officer to act under Division 2 within a
period set by the court.
(4) If an authorised officer does not comply with such an order, the
court may set aside the committal and discharge the accused
from the charge.
25 95. Disclosure by prosecutor
(1) In this section, unless the contrary intention appears --
"confessional material" has the meaning given by section 42;
"evidentiary material" has the meaning given by section 42;
"lodge" means to lodge with the superior court concerned;
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Division 4 Pre-trial matters
s. 95
"serve", an accused, means to serve the accused in accordance
with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material
includes a requirement to serve the things that are required to be
5 served under section 42(2).
(3) The operation of this section is subject to any order made under
section 138, whether in relation to a requirement of this section
or a requirement of section 35 or 42.
(4) This section does not affect the operation of The Criminal Code
10 section 570A.
(5) Within the prescribed period after an accused is committed for
sentence on a charge, the relevant authorised officer must lodge
the following and, if any of the following has not already been
served on or received by the accused, serve the accused with
15 it --
(a) a statement of the material facts of the charge;
(b) any confessional material of the accused that is relevant
to the charge;
(c) a copy of the accused's criminal record;
20 (d) a copy of the certificate given to the officer under
section 45;
(e) any other document that is prescribed.
(6) Within the prescribed period after an accused is committed for
trial on a charge, the relevant authorised officer must lodge the
25 following and, if any of the following has not already been
served on or received by the accused, serve the accused with
it --
(a) a statement of the material facts of the charge;
(b) any confessional material of the accused that is relevant
30 to the charge;
(c) any evidentiary material that is relevant to the charge;
(d) a copy of the accused's criminal record;
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Pre-trial matters Division 4
s. 95
(e) a copy of the certificate given to the officer under
section 45;
(f) any other document that is prescribed.
(7) If an accused is committed for sentence or trial and the
5 indictment contains a charge on which the accused was not so
committed, the prosecutor, within the prescribed period after the
indictment is lodged, must lodge and serve the following and, if
any of the following has not already been served on or received
by the accused, serve the accused with it --
10 (a) a statement of the material facts of the charge;
(b) any confessional material of the accused that is relevant
to the charge;
(c) any evidentiary material that is relevant to the charge;
(d) a copy of the accused's criminal record;
15 (e) any other document that is prescribed.
(8) If an indictment is lodged against a person who, when it is
lodged, is not committed to the court for trial or sentence, the
prosecutor, within the prescribed period after it is lodged, must
lodge and serve --
20 (a) a statement of the material facts of each charge in the
indictment;
(b) any confessional material of the accused that is relevant
to each such charge;
(c) any evidentiary material that is relevant to each such
25 charge;
(d) a copy of the accused's criminal record; and
(e) any other document that is prescribed.
(9) If, after complying with subsection (6), (7) or (8) and before a
charge is finally dealt with, a prosecutor receives or obtains --
30 (a) confessional material or additional confessional material
that is relevant to the charge;
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Division 4 Pre-trial matters
s. 96
(b) additional evidentiary material that is relevant to the
charge;
(c) any statement or recording referred to in
section 42(2)(b); or
5 (d) the name or address of a person described in
section 42(2)(c),
the prosecutor must lodge it or a copy of it, and serve it or a
copy of it on the accused, as soon as practicable.
96. Disclosure by accused of certain matters
10 (1) In this section, unless the contrary intention appears --
"alibi evidence" has the meaning given by section 62(1);
"expert evidence material" has the meaning given by
section 62(1);
"lodge" means to lodge with the superior court concerned;
15 "serve" has the meaning given by section 62(1).
(2) The operation of this section, other than subsection (3)(a), is
subject to any order made under section 138.
(3) Within the prescribed period before the trial date for a charge in
an indictment, the accused must lodge and serve the
20 following --
(a) if the accused intends to give or adduce any alibi
evidence, written notice of --
(i) the accused's intention to do so;
(ii) the details of the nature of the evidence; and
25 (iii) the name of each person who the accused intends
to call to give any such evidence and the
person's address or other information sufficient
to enable the person to be located;
(b) any expert evidence material that relates to the charge;
30 (c) written notice of the factual elements of the offence that
the accused may contend cannot be proved;
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Pre-trial matters Division 4
s. 97
(d) written notice of any objection by the accused to --
(i) any document that the prosecutor intends to
adduce at the trial; or
(ii) any evidence to be given by a witness whom the
5 prosecutor intends to call at the trial,
and the grounds for the objection.
(4) If, after complying with subsection (3), an accused receives or
obtains evidence, information or material referred to in
subsection (3), the accused must lodge and serve it as soon as
10 practicable.
97. Non-disclosure, consequences of
(1) In this section, unless the contrary intention appears --
"disclosure requirement" means a requirement imposed on a
party by section 95 or 96 and any order made under
15 section 138.
(2) If before or at a trial on indictment the court is satisfied that a
party has not obeyed a disclosure requirement, the court, on the
application of a party affected by the breach, may adjourn the
trial for a period that allows enough time --
20 (a) if necessary, for the party in breach of the requirement
to obey it; and
(b) for a party affected by the breach to investigate properly
any evidence or other matter disclosed in accordance
with the requirement and to obtain any evidence that
25 may be necessary as a result of the disclosure,
or, if the trial is a trial by jury, may discontinue the trial,
discharge the jury from giving its verdict and adjourn the
prosecution.
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Division 4 Pre-trial matters
s. 98
(3) On any resumption of a trial adjourned under subsection (2) a
party affected by the breach --
(a) may require a person who has given evidence in the
trial, including the accused, to be recalled as a witness;
5 (b) may cross-examine or further cross-examine the person
about the evidence or other matter disclosed in
accordance with the disclosure requirement; and
(c) may adduce evidence in rebuttal of the evidence or other
matter disclosed in accordance with the disclosure
10 requirement.
(4) The failure by a party to obey a disclosure requirement may be
the subject of adverse comment to the jury by the judge, the
accused or the prosecutor.
98. Issues that may be dealt with before trial
15 (1) This section applies if an accused is committed to, or is charged
on indictment in, a superior court.
(2) At any time before the accused's trial begins, the court --
(a) may determine any question of law or procedure, give
any direction, or do any other thing, that is necessary or
20 convenient in order to facilitate the preparation for, or
the conduct of, the trial, or that is otherwise desirable;
(b) may determine any question of fact that in a trial may be
determined lawfully by a judge alone without a jury;
(c) if it is satisfied as a matter of law that the accused has no
25 case to answer on a charge, may find the accused not
guilty of the charge without requiring a jury to give its
verdict on the charge;
(d) may, whether or not a party asks the court to do so, refer
a question of law to the Court of Appeal in accordance
30 with the Criminal Appeals Act 2004 section 46;
(e) may deal with any application made by a party under
this Part, Part 5 or Schedule 3;
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Committals for sentence Division 5
s. 99
(f) may exercise any power under this Act that may be
exercised by the court on its own initiative;
(g) may permit the accused to make an admission under the
Evidence Act 1906 section 32;
5 (h) may make an order under the Juries Act 1957
section 43A;
(i) may make any order under section 137.
(3) If the accused is committed for sentence, the court may exercise
the powers in subsection (2)(a) or (b) at any time before
10 sentencing the accused.
(4) If under subsection (2)(c) a court refers a question of law to the
Court of Appeal, it must adjourn the trial until the Court of
Appeal gives its judgment.
(5) The judge constituting the court that deals with any matter
15 under subsection (2) need not be the judge who constitutes the
court when the trial of the accused takes place.
(6) Any proceedings under subsection (2) are to be taken to be part
of the accused's trial.
(7) The powers of a judge in a trial include, but are not limited to,
20 the powers in this section.
Division 5 -- Committals for sentence
99. Unconvicted accused committed for sentence, procedure on
(1) This section applies if --
(a) an accused pleads guilty to an indictable charge before a
25 court of summary jurisdiction (the "lower court");
(b) the lower court, without convicting the accused,
commits the accused to a superior court for sentence on
the charge; and
(c) the accused is subsequently charged with the charge in
30 an indictment.
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Division 5 Committals for sentence
s. 99
(2) The accused must be required to plead to the charge in the
indictment in the same manner as other accused.
(3) If the accused pleads guilty to the charge in the indictment then,
unless subsection (5) applies, the superior court must accept the
5 plea of guilty and deal with the accused according to law.
(4) If the accused does not plead guilty to the charge in the
indictment then, unless subsection (5) applies, the superior court
must order the prosecutor to state aloud the material facts of the
charge and --
10 (a) if it is satisfied that those facts do not differ materially
from the material facts disclosed to the accused under
section 35 at the time the accused pleaded guilty to the
offence charged in the lower court, must enter a plea of
guilty on behalf of the accused; or
15 (b) if it is not so satisfied, must enter a plea of not guilty on
behalf of the accused,
and deal with the accused according to law.
(5) Irrespective of whether the accused does or does not plead
guilty to the charge in the indictment, the court, despite
20 subsections (3) and (4), may enter a plea of not guilty on behalf
of the accused if --
(a) having considered --
(i) the material served on the accused under
section 35 or 95; and
25 (ii) the facts stated by the prosecutor under
section 129,
the court is satisfied that the accused could not have or
may not have committed the offence charged; or
(b) having considered any evidence the court decides to
30 admit, the court is satisfied that the plea before the lower
court was made under a material misunderstanding as to
the charge, the plea or the purpose of the proceedings.
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Trial by jury Division 6
s. 100
(6) If under this section a superior court enters a plea of not guilty
on behalf of an accused, the prosecutor must lodge and serve the
material referred to in section 95(6) within such period as the
court orders.
5 (7) A plea entered by a court under this section on behalf of an
accused has the same effect as if it had been actually pleaded.
100. Convicted accused committed for sentence, procedure on
(1) This section applies if an accused is committed for sentence for
an offence by a court of summary jurisdiction having been
10 convicted of it by that court.
(2) The superior court --
(a) must not require the accused to plead to the charge in
the prosecution notice sent to the superior court under
section 46; and
15 (b) must proceed to sentence the accused having regard to
the other material sent to the superior court under
section 46 and any other information the court thinks fit.
(3) Subsection (2)(b) does not affect the operation of the Sentencing
Act 1995.
20 (4) The sentence imposed on the accused is to be taken, for all
purposes, to be a sentence imposed by the superior court on
indictment.
Division 6 -- Trial by jury
101. Application of this Division
25 (1) This Division applies to any charge that is to be tried by a judge
and jury.
(2) This Division does not affect the operation of the Juries
Act 1957.
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Division 6 Trial by jury
s. 102
102. When a juror is sworn
For the purposes of this Division, a juror is to be taken to be
sworn when --
(a) the court officer who is administering the oath or
5 affirmation to the juror begins to recite the words of it to
the juror; or
(b) the juror begins to recite the words of the oath or
affirmation from a card.
103. Accused to be told of right to challenge jurors
10 Before any juror is sworn for an accused's trial, a prescribed
officer must inform the accused in open court that the persons
who will be called are the jurors who will be sworn for the trial
and that if the accused wants to challenge any of them the
accused must do so before the juror concerned is sworn.
15 104. Challenging jurors
(1) An accused cannot object to the whole panel of jurors.
(2) The right to challenge a juror under subsection (3), (4) or (5)
may only be exercised before the juror is sworn.
(3) The prosecutor may challenge 5 jurors peremptorily.
20 (4) The accused, or if there are 2 or more accused, each accused,
may challenge 5 jurors peremptorily.
(5) In addition to the rights in subsections (3) and (4), the
prosecutor or an accused may challenge a juror on the
ground --
25 (a) that the juror is not qualified by law to act as juror; or
(b) that the juror is not indifferent as between the accused
and the State of Western Australia.
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Trial by jury Division 6
s. 105
(6) If it is necessary to decide any fact for the purposes of
determining a challenge made under subsection (5), the fact
must be decided by the trial judge on any evidence and in any
manner he or she thinks just.
5 105. Jurors to be sworn
Each juror must take an oath or make an affirmation to give a
true verdict according to the evidence upon the issues to be tried
by the juror.
106. Jury to be informed of certain matters
10 After a jury is sworn it must be informed in such manner as the
judge decides is just --
(a) of the charge or charges in the indictment; and
(b) of their duty as jurors in the trial.
107. Plea of guilty after jury is sworn
15 (1) At any time after a jury is sworn and before it gives its verdict
on a charge against an accused, the accused may plead guilty to
the charge or, with the prosecutor's consent, any other offence
of which the accused might be convicted instead of the charge.
(2) If such a plea is entered, the judge must discharge the jury from
20 giving its verdict on the charge and deal with the accused in
accordance with section 147.
108. No case to answer, judge may acquit accused
(1) If at any time after the close of the prosecutor's case and before
the jury gives its verdict on a charge the judge is satisfied that
25 the accused has no case to answer on the charge, the judge --
(a) may find the accused not guilty of the charge without
requiring the jury to give its verdict on the charge; and
(b) if such a finding is made --
(i) must not direct the jury to return a verdict of not
30 guilty on the charge; and
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Division 6 Trial by jury
s. 109
(ii) must discharge the jury from giving its verdict on
the charge.
(2) The power in subsection (1) may be exercised whether or not
the accused has submitted that there is no case to answer on the
5 charge.
(3) The power in subsection (1) may be exercised in relation to any
offence of which the accused might be convicted instead of a
charge.
109. View by a jury
10 (1) The judge may at any time order the jury to view a place or
thing and may give any orders necessary for the view to take
place.
(2) If a person contravenes such an order --
(a) the judge may discharge the jury from giving its verdict,
15 if it is in the interests of justice to do so; and
(b) the person is guilty of an offence and is liable to a fine
of $12 000 or imprisonment for 12 months.
110. Jury may be given records etc. to assist understanding
(1) On the application of a party or on his or her own initiative, the
20 judge may order that the jury be given, on any conditions the
judge orders, any record (including any document in the court's
record) or thing that may assist the jury to understand the issues
or the law, or to understand and assess the evidence.
(2) Such an order may be made at any time in a trial before the jury
25 gives its verdict.
111. Jury not to separate or communicate with others
(1) After a jury is sworn in relation to a charge, it must not separate
until it has given its verdict or been discharged from giving its
verdict on the charge.
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(2) Despite subsection (1), the judge may permit the jury to separate
during any adjournment of the trial subject to any condition that
the judge thinks necessary to impose in the interests of justice.
(3) After a jury has retired to consider its verdict and before it has
5 given its verdict or been discharged from giving its verdict,
there must not be any communication between a juror and a
person who is not a juror, other than the judge or the court
officer in charge of the jury.
(4) Despite subsection (3), the judge may permit a juror and a
10 person who is not a juror to communicate subject to any
condition that the judge thinks necessary to impose in the
interests of justice.
(5) If a person contravenes subsection (1) or (3) without the
permission of the judge given under subsection (2) or (4) or
15 contravenes a condition imposed under subsection (2) or (4) --
(a) the judge may discharge the jury from giving its verdict,
if it is in the interests of justice to do so; and
(b) the person is guilty of an offence and is liable to a fine
of $12 000 or imprisonment for 12 months.
20 112. Judge to address jury before it deliberates
After addresses have been made in accordance with section 145
and before the jury retires to consider its verdict, the judge must
instruct the jury on the law applicable to the case and may make
any observations about the evidence that the judge thinks
25 necessary in the interests of justice.
113. Special verdict may be required
(1) If in a trial the question arises whether, under The Criminal
Code section 27, the accused was not criminally responsible for
an act or omission on account of unsoundness of mind, the
30 judge must direct the jury that if it finds the accused not guilty
of the charge on account of unsoundness of mind, it must return
a special verdict to that effect.
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Division 6 Trial by jury
s. 114
(2) If the judge is of the opinion that the proper sentence or order to
be imposed --
(a) on an accused if convicted; or
(b) on an accused if found not guilty on account of
5 unsoundness of mind,
may depend upon a specific fact, the judge may require the jury
to give its verdict on that fact specifically.
114. Jury's verdict to be unanimous except in some cases
(1) Subject to this section, the verdict of a jury must be the
10 unanimous verdict of its members.
(2) If a jury trying a charge has retired to consider its verdict and,
having deliberated for at least 3 hours, has not arrived at a
unanimous verdict, the decision of 10 or more of the jurors shall
be taken as the verdict on the charge.
15 (3) If a jury trying a charge has retired to consider its verdict and,
having deliberated for at least 3 hours, 10 or more of the jurors
have not agreed on a verdict, the judge may discharge the jury
from giving its verdict on the charge.
(4) Subsections (2) and (3) do not apply to a charge of wilful
20 murder or murder.
(5) Subsections (2) and (3) do not prevent a judge from requiring a
jury to deliberate for more than 3 hours.
115. Discharging a juror
(1) The powers in this section may be exercised at any time before
25 a jury gives its verdict.
(2) The judge may discharge a juror from a jury if satisfied that the
juror should not be required or allowed to continue in the jury
and if the discharge will leave at least 10 jurors remaining.
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Trial by judge alone Division 7
s. 116
(3) If a juror is discharged under subsection (2) the verdict of the
remaining 10 or more jurors has the same effect as if the whole
jury had continued to be present.
(4) The discharge of a juror from a jury does not affect any duty of
5 the juror to attend under the Juries Act 1957.
116. Discharging a jury
(1) The powers in this section may be exercised at any time before
a jury gives its verdict.
(2) The judge may discharge the jury from giving its verdict on a
10 charge if the judge is satisfied it is in the interests of justice to
do so.
(3) If under subsection (2) or another enactment a jury is discharged
from giving its verdict in a trial of a charge, the trial is
discontinued.
15 (4) If under subsection (2) or another enactment, a judge discharges
a jury from giving its verdict on a charge and another trial of the
charge is or may be required, the judge --
(a) may order the other trial to begin immediately or at a
later time or date set by the judge; or
20 (b) may adjourn the prosecution of the charge.
(5) Subsection (4) does not affect a judge's powers under section 93
or 108 or to determine the charge in accordance with this Act.
(6) The discharge of a jury from giving its verdict in a trial does not
affect any duty of the jurors to attend under the Juries Act 1957.
25 Division 7 -- Trial by judge alone
117. Application of this Division
A reference in any written law to a person being tried or triable
by or before a jury, or to the trial of a person taking place before
a jury, is, unless the context otherwise requires, to be read as
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Part 4 Prosecutions in superior courts
Division 7 Trial by judge alone
s. 118
including a reference to a person being tried or triable by a
judge alone, or to the trial of a person taking place before a
judge alone, under this Division.
118. Trial by judge alone without a jury may be ordered
5 (1) If an accused is committed on a charge to a superior court or
indicted in a superior court on a charge, the prosecutor or the
accused may apply to the court for an order that the trial of the
charge be by a judge alone without a jury.
(2) Any such application must be made before the identity of the
10 trial judge is known to the parties.
(3) On such an application, the court may inform itself in any way it
thinks fit.
(4) On such an application the court may make the order if it
considers it is in the interests of justice to do so.
15 (5) Without limiting subsection (4), the court may make the order if
it considers --
(a) that the trial, due to its complexity or length or both, is
likely to be unreasonably burdensome to a jury; or
(b) that it is likely that acts that may constitute an offence
20 under The Criminal Code section 123 would be
committed in respect of a member of a jury.
(6) Without limiting subsection (4), the court may refuse to make
the order if it considers the trial will involve a factual issue that
requires the application of objective community standards such
25 as an issue of reasonableness, negligence, indecency, obscenity
or dangerousness.
(7) If an accused is charged with 2 or more charges that are to be
tried together, the court must not make such an order in respect
of one of the charges unless the court also makes such an order
30 in respect of each other charge.
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Trial by judge alone Division 7
s. 119
(8) If 2 or more accused are to be tried together, the court must not
make such an order in respect of one of the accused unless the
court also makes such an order in respect of each other accused.
(9) If such an order is made, the court cannot cancel the order after
5 the identity of the trial judge is known to the parties.
119. Law and procedure to be applied
(1) In a trial by a judge alone, the judge must apply, so far as is
practicable, the same principles of law and procedure as would
be applied in a trial before a jury.
10 (2) In a trial by a judge alone, the judge may view a place or thing.
(3) If any written or other law --
(a) requires information or a warning or instruction to be
given to the jury in certain circumstances; or
(b) prohibits a warning from being given to a jury in certain
15 circumstances,
the judge in a trial by a judge alone must take the requirement or
prohibition into account if those circumstances arise in the
course of the trial.
120. Judge's verdict and judgment
20 (1) In a trial by a judge alone --
(a) the judge may make any findings and give any verdict
that a jury could have made or given if the trial had been
before a jury; and
(b) any finding or verdict of the judge has, for all purposes,
25 the same effect as a finding or verdict of a jury.
(2) The judgment of the judge in a trial by a judge alone must
include the principles of law that he or she has applied and the
findings of fact on which he or she has relied.
(3) The validity of a trial judge's judgment is not affected by a
30 failure to comply with subsection (2).
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Part 4 Prosecutions in superior courts
Division 8 Miscellaneous
s. 121
Division 8 -- Miscellaneous
121. Sentences etc. may be stayed pending appeal
(1) In this section, unless the contrary intention appears --
"community order" means --
5 (a) a community order within the meaning of the
Sentencing Act 1995; or
(b) a youth community based order, or an intensive youth
supervision order, within the meaning of the Young
Offenders Act 1994;
10 "convicted person" means a person --
(a) who is convicted by a superior court; or
(b) who is committed to a superior court for sentence
having been convicted by a court of summary
jurisdiction;
15 "stay order" means an order that stays the operation of --
(a) an order imposing a fine on, or for the payment of
compensation or another sum of money by, a
convicted person;
(b) a community order imposed on a convicted person;
20 (c) a reparation order made under the Sentencing
Act 1995 Part 16;
(d) an order for the restitution or delivery of any thing by
a convicted person or any other person;
(e) an order for the forfeiture, disposal or destruction of
25 any thing;
(f) an order imposing a disqualification on a convicted
person; or
(g) the Sale of Goods Act 1895 section 24(1).
(2) At any time after a person becomes a convicted person and
30 before an appeal under the Criminal Appeals Act 2004 Part 3
against the conviction or the sentence imposed on the person is
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Prosecutions in superior courts Part 4
Miscellaneous Division 8
s. 122
commenced, an application for a stay order may be made to the
superior court.
(3) The application may be made by the convicted person, the
relevant authorised officer or a person who is, or will be,
5 affected by the order or statutory provision in relation to which
the stay order is sought.
(4) On such an application, the superior court may make a stay
order on any terms and conditions it thinks fit, including terms
and conditions for the purpose of --
10 (a) ensuring that an appeal under the Criminal Appeals
Act 2004 Part 3 is commenced without delay;
(b) securing the safe custody of any record or thing while
the stay order has effect;
(c) requiring security to be given in relation to any order
15 imposing a fine or for the payment of compensation or
another sum of money.
122. Incapacity of judge
(1) If in a trial by jury the trial judge becomes incapable of
continuing with the trial --
20 (a) another judge may take over the conduct of the trial; but
(b) if that does not occur within a reasonable time, some
other officer of the court must discharge the jury from
giving its verdict.
(2) If in a trial of an accused the trial judge becomes incapable of
25 continuing with the trial and --
(a) another judge does not take over the trial under
subsection (1)(a); or
(b) the trial is being conducted without a jury,
the accused, if in custody, must remain in custody until he or
30 she can be brought before another judge who may adjourn the
case.
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Part 4 Prosecutions in superior courts
Division 8 Miscellaneous
s. 123
123. No fees or costs
(1) An accused must not be charged a fee by a court for or in
respect of any act or proceeding that relates to the prosecution
of the accused in a superior court.
5 (2) A superior court cannot order a party to a case to pay another
party's costs of or relating to proceedings in the court that relate
to a charge in an indictment or a charge on which an accused
has been committed to the court, except under section 166(2).
124. Rules of court
10 (1) A superior court may make rules of court to regulate the
practice and procedure to be followed in the court and its
registries in relation to all or particular cases that involve the
court's criminal jurisdiction.
(2) Rules of court made by the Supreme Court under subsection (1)
15 operate in respect of the practice and procedure in the District
Court unless rules of court made by the District Court under
subsection (1) expressly provide otherwise.
(3) The Supreme Court Act 1935 sections 168 and 170 apply to any
such rules of court being made by the Supreme Court.
20 (4) Any such rules of court made by the District Court must be
made by a majority of the District Court Judges and the District
Court of Western Australia Act 1969 section 89 applies to the
rules.
(5) Without limiting subsection (1) rules of court may --
25 (a) confer on a registrar of the court, in all or particular
cases and under such circumstances and on such
conditions as the rules specify, jurisdiction to deal with
applications and other matters that do not involve the
final determination of a prosecution;
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Prosecutions in superior courts Part 4
Miscellaneous Division 8
s. 124
(b) prescribe forms to be used in the court;
(c) authorise the chief judicial officer of the court to
approve forms to be used in the court.
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Criminal Procedure Bill 2004
Part 5 Provisions applicable to any prosecution
Division 1 Preliminary
s. 125
Part 5 -- Provisions applicable to any prosecution
Division 1 -- Preliminary
125. Application of Part
This Part applies to any prosecution in any court.
5 Division 2 -- Pleas and related matters
126. Pleas available to charges
(1) If under this Act an accused may or must plead to a charge, the
accused may --
(a) plead that the court does not have jurisdiction to deal
10 with the accused or the charge;
(b) plead that the offence charged is not an offence under
any of the provisions referred to in the Criminal Code
Act 1913 section 4;
(c) plead that the accused has a defence to the charge under
15 The Criminal Code section 17;
(d) plead not guilty of the charge on account of
unsoundness of mind under The Criminal Code
section 27;
(e) plead not guilty to the charge;
20 (f) plead guilty to the charge or, with the prosecutor's
consent, to some other offence of which the accused
might be convicted instead of the charge.
(2) An accused may enter a plea under subsection (1)(b) to a charge
at any time before a judgment on the charge is entered against
25 the accused under section 147.
(3) For the purposes of entering a plea under subsection (1)(c), it is
sufficient for the accused to describe the offence of which the
accused has been convicted or acquitted in any way in which it
is commonly known.
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Provisions applicable to any prosecution Part 5
Pleas and related matters Division 2
s. 127
(4) Unless the accused pleads guilty, 2 or more of the pleas in
subsection (1) may be made together.
(5) If an accused, on being required by a court to plead to a
charge --
5 (a) enters a plea other than one permitted by subsection (1);
(b) does not plead in accordance with subsection (4); or
(c) does not plead,
the court must enter a plea of not guilty on behalf of the
accused, unless --
10 (d) the court, under section 99(4) or (5), enters a plea on
behalf of the accused; or
(e) the accused is not mentally fit to stand trial under the
Criminal Law (Mentally Impaired Accused) Act 1996.
(6) A plea entered by a court under this Act on behalf of an accused
15 has the same effect as if it had been entered by the accused.
127. Plea of no jurisdiction etc., dealing with
(1) If an accused enters a plea under section 126(1)(b) to a charge,
the court may amend the charge.
(2) If an accused enters a plea under section 126(1)(a), (b) or (c) to
20 a charge, the court must try any issue raised by the plea and, if
the court is a superior court --
(a) may ascertain any fact by the verdict of a jury if it thinks
fit;
(b) may refer a question of law to the Court of Appeal in
25 accordance with the Criminal Appeals Act 2004
section 46.
(3) If under subsection (2)(b) a superior court refers a question of
law to the Court of Appeal, it must adjourn the prosecution until
the Court of Appeal gives its judgment.
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Part 5 Provisions applicable to any prosecution
Division 2 Pleas and related matters
s. 128
(4) If a court rejects a plea entered under section 126(1)(a), (b)
or (c) to a charge, the court must require the accused to enter a
different plea to the charge and --
(a) if any issue raised by the rejected plea was decided in a
5 superior court by a jury, the judge may order any issue
raised by the new plea to be tried by that same jury or by
another jury; and
(b) if the judge orders that same jury to try the new issue,
the oaths or affirmations already taken or made by the
10 jurors are to be taken to extend to the new issue and
fresh ones are not required.
(5) Section 126(5) and (6), with any necessary changes, apply if an
accused does not plead as required under subsection (4).
128. Plea of no jurisdiction etc., consequences if upheld
15 (1) If a court finds, whether or not on a plea by the accused, that it
does not have jurisdiction to deal with an accused or a charge,
the court must send the charge to a court that does have
jurisdiction to deal with the accused and the charge.
(2) If a court upholds a plea to a charge entered by an accused
20 under section 126(1)(b) it must enter judgment accordingly and
discharge the accused from the charge without convicting or
acquitting the accused.
(3) If a court upholds a plea to a charge entered by an accused
under section 126(1)(c) it must enter judgment accordingly and
25 discharge the accused from the charge without convicting or
acquitting the accused.
129. Plea of guilty, procedure on
(1) This section applies if an accused pleads guilty in a court but
does not apply if the plea is made in a court of summary
30 jurisdiction to a charge that is to be dealt with on indictment.
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Provisions applicable to any prosecution Part 5
General procedural matters Division 3
s. 130
(2) Unless the plea is a written plea given to a court of summary
jurisdiction, the court must not accept the plea unless --
(a) the accused is represented by a lawyer; or
(b) if the accused is not so represented, the court is satisfied
5 the accused understands the plea and its consequences.
(3) Before the court sentences the accused, the prosecutor must
state aloud to the court the material facts of the offence to which
the accused has pleaded guilty.
(4) If under this Act the accused has been served with one or more
10 written statements of the material facts, the facts stated aloud
must be those in the written statement that was last served.
Division 3 -- General procedural matters
130. Mental fitness of accused to stand trial
Any question about an accused's mental fitness to stand trial
15 must be dealt with under the Criminal Law (Mentally Impaired
Accused) Act 1996.
131. Unclear charge, court may order particulars etc.
(1) The powers in this section may be exercised by a court on its
own initiative or on an application by an accused and may be
20 exercised before or during a trial.
(2) A court may amend or cancel an order made under this section.
(3) A court may order a prosecutor to give the accused further
particulars of a charge.
(4) If a court is satisfied that a charge that complies with Schedule 1
25 clause 5(2)(b) is likely to prejudice the accused's defence of the
charge, the court may --
(a) order the prosecutor to give the accused further
particulars of the charge; or
(b) exercise a power to amend in section 132.
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Part 5 Provisions applicable to any prosecution
Division 3 General procedural matters
s. 132
(5) If the evidence led by the prosecutor in respect of one charge of
an offence discloses that 2 or more of the offences may have
been committed, the court may exercise any of the powers in
section 132.
5 132. Amending charges etc.
(1) The powers in this section may be exercised by a court in
relation to a charge at any time before or during a trial.
(2) The powers in this section may be exercised by a court on its
own initiative or on the application of a prosecutor or an
10 accused, unless the contrary intention appears.
(3) A court, on the application of the prosecutor, may amend a
charge.
(4) Without limiting subsection (3) a court may amend a charge to
correct any variance between the charge and the evidence led by
15 the prosecutor in support of it.
(5) If one charge alleges 2 or more offences and a court is satisfied
that the one charge is not permitted by Schedule 1 clause 8, it
may amend the prosecution notice or indictment containing the
charge so that each of the offences is the subject of a separate
20 charge.
(6) If one charge alleges 2 or more offences and a court is
satisfied --
(a) that the one charge is permitted by Schedule 1 clause 8;
(b) that the trial of the accused on the charge would be
25 unfair because it alleges the 2 or more offences;
(c) that it is reasonably practicable for any of those offences
to be the subject of a separate charge; and
(d) that the separate charge would be in accordance with
Schedule 1,
30 the court may amend the prosecution notice or indictment
containing the charge so as to include one or more separate
charges.
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Provisions applicable to any prosecution Part 5
General procedural matters Division 3
s. 133
(7) A court that amends a charge, prosecution notice or indictment
must ensure the prosecutor and the accused are each given a
copy of it.
(8) If a court amends a charge, prosecution notice or indictment and
5 is satisfied that the amendment prejudices the accused's defence
of the prosecution notice or indictment or of a charge in it, the
court must adjourn the prosecution notice, indictment or charge,
as the case requires.
(9) If a court amends a prosecution notice or indictment to include a
10 separate charge and at the time of the amendment a trial of the
prosecution notice or indictment is in progress, the court --
(a) may discontinue the trial of all of the charges in, and
adjourn, the prosecution notice or indictment; or
(b) may continue with the trial of any charge in the
15 prosecution notice or indictment other than the charge
that has been included, and adjourn that charge.
(10) A court may refuse to amend a charge, prosecution notice or
indictment if it is satisfied --
(a) the amendment is material to the merits of the case;
20 (b) the amendment would prejudice the accused's defence
of the charge, prosecution notice or indictment; and
(c) an adjournment would not overcome the prejudice.
(11) If one charge alleges 2 or more offences and a court refuses to
amend the charge, the court may order the prosecutor to tell the
25 court to which of the 2 or more offences the charge relates.
133. Separate trials, court may order
(1) The powers in this section may be exercised by a court on its
own initiative or on an application by an accused and may be
exercised before or during a trial.
30 (2) A court may amend or cancel an order made under this section.
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Division 3 General procedural matters
s. 133
(3) If a court is satisfied that an accused is likely to be prejudiced in
the trial of a prosecution notice or indictment because it
contains 2 or more charges, the court may order --
(a) that the accused be tried separately on one or more of
5 the charges; and
(b) the prosecutor to tell the court the order in which the
charges will be tried.
(4) If a court is satisfied that an accused is likely to be prejudiced in
the trial of a prosecution notice or indictment because it also
10 charges one or more other accused, the court may order --
(a) that one or more of the accused be tried separately from
the other or others; and
(b) the prosecutor to tell the court the order in which the
accused will be tried.
15 (5) In deciding whether to make an order under subsection (3)
or (4) in respect of an indictment to be tried by a jury, it is open
to a superior court --
(a) to decide that any likelihood of the accused being
prejudiced can be guarded against by a direction to the
20 jury;
(b) to so decide irrespective of the nature of the offence or
offences charged; and
(c) to so decide even if --
(i) the evidence on one of the charges is
25 inadmissible on another; or
(ii) the evidence against one of the accused is not
admissible against another,
as the case requires.
(6) In considering, for the purposes of this section, the likelihood of
30 an accused being prejudiced in the trial by a jury of an
indictment that contains 2 or more charges of a sexual nature,
the court must not have regard to the possibility that similar fact
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General procedural matters Division 3
s. 134
evidence, the probative value of which outweighs its potentially
prejudicial effect, may be the result of collusion or suggestion.
(7) If a superior court makes or refuses to make an order under
subsection (3) or (4), the court must adjourn the trial to enable
5 an appeal against the order or refusal to be commenced and
concluded under the Criminal Appeals Act 2004 section 26.
134. Separate prosecutions may be dealt with together
(1) A court may order that 2 or more charges against one accused
that are contained in 2 or more separate prosecution notices or
10 indictments be tried together if --
(a) the prosecutor consents;
(b) the court has jurisdiction to deal with all of the charges;
and
(c) the court is satisfied that it is in the interests of justice to
15 do so.
(2) A court may amend or cancel such an order.
(3) This section does not permit the trial of a simple offence by a
jury.
135. Venue, change of
20 (1) The powers in this section may be exercised by a court on its
own initiative or on an application by a party to a case.
(2) If there is a good reason to do so, a court may order that the
whole or a part of a case be conducted at another place in the
State (whether or not there is a registry of the court or
25 courtroom facilities at the place).
(3) If there is a good reason to do so, an application for such an
order by the prosecutor may be dealt with in the absence of the
accused.
(4) If a court makes such an order it may make any order and issue
30 any document needed to ensure that any person, including the
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Part 5 Provisions applicable to any prosecution
Division 3 General procedural matters
s. 136
accused, whose presence will be needed, appears at the new
place.
136. Trial date, court may set on application of party
(1) If an accused is awaiting trial in a court, the accused or the
5 prosecutor may apply at any time to the court for an order
setting a trial date or, if a trial date has already been set, for an
earlier trial date.
(2) On such an application, the court, after hearing all parties to the
prosecution, may set a trial date.
10 (3) If the court sets a trial date, it may make any order and issue any
document needed to ensure that any person, including the
accused, whose presence will be needed, appears on the date.
137. Case management powers
(1) This section does not limit a superior court's inherent powers.
15 (2) A power in this section to make an order includes a power to
amend or cancel the order.
(3) Unless this Act or the rules of court or another written law
provides otherwise, a court may do any or all of the following
for the purposes of controlling and managing cases before it --
20 (a) order the parties to a case --
(i) to confer on a "without prejudice" basis or to
take other measures before trial to try to identify
those facts and issues in the case that are agreed
between them and those that will be in issue at
25 the trial of the case;
(ii) to attend before the court before trial for the
purpose of dealing with case management and
pre-trial issues;
(iii) to do anything that in the court's opinion will or
30 may facilitate the case being conducted and
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s. 138
concluded efficiently, economically and
expeditiously;
(b) order 2 or more witnesses who are to give expert
opinion evidence, whether for the prosecutor or the
5 accused, and whose evidence has been disclosed --
(i) to confer on a "without prejudice" basis before
trial in order to identify the differences between
them and to resolve as many of them as possible;
(ii) to each provide a report to the court that explains
10 which aspects of the evidence to be given by the
other are disputed and why.
(4) Despite section 171(2) but without affecting the operation of the
rest of section 171, the courtroom where proceedings ordered
under subsection (3)(a) are conducted before a court is not to be
15 regarded as an open court.
(5) If a person publishes outside a court anything said orally or in
writing, any admission made, anything done, or any document
prepared, in or for the purpose of proceedings ordered under, or
pursuant to an order made under, subsection (3)(a), the person
20 commits an offence.
Penalty:
(a) for an individual, a fine of $12 000 or imprisonment
for 12 months;
(b) for a corporation, a fine of $60 000.
25 (6) A court of summary jurisdiction may make rules of court for the
purposes of this section.
138. Disclosure requirements, orders as to
(1) In this section, unless the contrary intention appears --
"disclosure requirement" means a requirement under
30 section 35, 42, 61, 62, 95 or 96 to disclose material, other
than a requirement under section 62(4)(a) or 96(3)(a).
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Division 3 General procedural matters
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(2) The powers in this section may be exercised by a court on its
own initiative or on an application by a party to a case.
(3) A court may, in respect of a disclosure requirement, make an
order --
5 (a) that dispenses with all or part of the requirement, if it is
satisfied --
(i) there is a good reason to do so; and
(ii) no miscarriage of justice will result;
(b) that shortens or extends the time for obeying the
10 requirement;
(c) that amends or cancels an order made previously under
this section, whether by the court or some other court; or
(d) as to any other matter that the court considers is just.
(4) An application for an order under this section may be made by a
15 prosecutor without notice to the accused and may be dealt with
in the absence of the accused.
(5) If an order is made under this section in the absence of an
accused, the order must not be given or disclosed to the accused
without the permission of the court that made it or, if it was
20 made by a court of summary jurisdiction and the accused is
committed for trial or sentence to a superior court, of the
superior court.
139. Accused's appearance, court's powers to compel
(1) This section applies if an accused is an individual.
25 (2) If a court dealing with a charge against an accused is satisfied
that the accused's presence is needed, the court may compel the
accused to appear before the court --
(a) by issuing a summons to the accused;
(b) by issuing an arrest warrant for the accused; or
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General procedural matters Division 3
s. 140
(c) if the accused is in custody, by issuing an order under
the Prisons Act 1981 section 21 or 22, as the case
requires.
(3) The power in subsection (2) may be exercised --
5 (a) whether or not a date for dealing with the charge has
been set or a summons or warrant has previously been
issued under this or another section; and
(b) in the case of an accused who is in custody pursuant to a
remand warrant in respect of the charge, to compel the
10 accused to appear on a date prior to the date stated in the
warrant for his or her appearance.
(4) If an accused absents himself or herself during proceedings
without leave, the court may issue an arrest warrant for the
accused.
15 (5) Sections 31 and 32, with any necessary changes, apply
respectively to and in respect of a warrant and summons issued
under this section.
140. Accused may be excluded from proceedings
(1) Despite sections 88(4) and 172(1), if an accused conducts
20 himself or herself in a manner that makes it impracticable to
continue proceedings in his or her presence, the court may order
the accused to be removed and the proceedings to proceed in the
accused's absence.
(2) This section does not prevent a court from allowing an accused
25 to be present before the court by means of a video link or audio
link or from taking evidence from an accused by either such
means.
141. Video and audio links, use of
(1) This section applies if an accused is required to appear before a
30 court in relation to a charge for any purpose other than to be
sentenced.
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Division 4 Trial matters
s. 142
(2) Subject to section 77, the court may permit the accused to
appear before the court by means of a video link or an audio
link.
(3) When the accused appears before the court by means of a video
5 link or an audio link the court may deal with the charge as if the
accused were personally present before it.
Division 4 -- Trial matters
142. Accused required to plead at start of trial
Whether or not an accused has previously pleaded to a charge,
10 the court trying the accused on the charge must, at the start of
the trial and in such manner as the court decides is just --
(a) inform the accused of the charge; and
(b) require the accused to enter a plea in accordance with
section 126(1) and (4).
15 143. Opening addresses
(1) Before any evidence is given in a trial the prosecutor is entitled
to give an opening address to the court about the prosecutor's
case.
(2) Whether or not an accused intends to give or adduce evidence,
20 the accused is entitled to give an opening address to the court
about the accused's case.
(3) Any opening address by an accused must be given, at the
accused's option, either --
(a) immediately after the prosecutor has given or declined
25 to give an opening address; or
(b) if the accused intends to give or adduce evidence, after
the close of the prosecutor's case and immediately
before the accused gives or adduces the evidence.
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Judgments and related matters Division 5
s. 144
144. Accused's entitlement to defend charges
(1) In the trial of a charge, the accused is entitled to defend the
charge and to cross-examine any witness called by the
prosecutor and to call, examine and re-examine any witness.
5 (2) The entitlements in subsection (1) are subject to the powers of
the court in the Evidence Act 1906 to control the questioning of
witnesses.
(3) After the close of the prosecutor's case the court must ask the
accused if the accused intends to give or adduce any evidence.
10 (4) If the accused intends to give evidence as a witness, he or she
must give evidence before any other witness is called by the
accused, unless the court permits otherwise for a good reason.
145. Closing addresses
(1) When the parties have finished giving or adducing evidence in a
15 trial, the prosecutor is entitled to give a closing address to the
court about the whole case.
(2) Immediately after the prosecutor has given or declined to give a
closing address, the accused is entitled to give a closing address
to the court about the whole case.
20 (3) If in an accused's closing address any fact is asserted that is not
supported by evidence in the trial, the court may permit the
prosecutor to give an address to the court in reply to the
assertion.
Division 5 -- Judgments and related matters
25 146. Acquittal on account of unsoundness of mind
If under The Criminal Code section 27 an accused is found not
guilty of a charge on account of unsoundness of mind, whether
by a court of summary jurisdiction or by a jury's special verdict
or by a judge under section 93(1) or in a trial by the judge alone,
30 the court must record the finding.
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Division 5 Judgments and related matters
s. 147
147. Judgment, entry of
(1) If an accused pleads guilty to or is found guilty of a charge, the
court, unless it enters judgment under section 128(2), may enter
a judgment of conviction of the offence charged in respect of
5 the accused.
(2) If an accused is found not guilty of a charge on account of
unsoundness of mind, the court, unless it enters judgment under
section 128(2), may enter a judgment of acquittal of the offence
charged on account of unsoundness of mind in respect of the
10 accused.
(3) If an accused is found not guilty of a charge, other than on
account of unsoundness of mind, the court may enter a
judgment of acquittal of the offence charged in respect of the
accused.
15 148. Conviction, consequences of
If a court convicts an accused of an offence, then, subject to the
Sentencing Act 1995 and the Young Offenders Act 1994, the
court must sentence the accused for the offence and may make
other orders in respect of the accused under those Acts or any
20 other relevant written law, as the case requires.
149. Acquittal, consequences of
(1) If a court acquits an accused of a charge on account of
unsoundness of mind, the court must deal with the accused
under the Criminal Law (Mentally Impaired Accused) Act 1996.
25 (2) If a court otherwise acquits an accused of a charge, the court
must discharge the accused from the charge.
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Prosecutions against corporations Division 6
s. 150
150. Discharge of accused, effect of
(1) If under this Act a court discharges an accused from a charge in
a prosecution notice or indictment --
(a) the discharge operates as a discharge of the accused
5 from that prosecution of the charge;
(b) the accused must not be kept in custody in relation to the
charge in that prosecution notice or indictment; and
(c) any bail undertaking by the accused that relates to the
charge, and any surety undertaking in respect of the
10 accused in relation to the charge, that is then in effect
ceases to be in effect in relation to the charge.
(2) Subsection (1) does not affect any prosecution of the accused
for the charge that may be commenced subsequently.
Division 6 -- Prosecutions against corporations
15 151. Application of this Division
This Division applies if a corporation is charged with an offence
before a court.
152. Corporation may appoint representative
(1) A corporation may appoint an individual, who need not be a
20 lawyer, to be its representative in proceedings before the court.
(2) The appointment need not be under the seal of the corporation.
(3) The following documents are proof of the appointment of an
individual as a corporation's representative in the absence of
evidence to the contrary --
25 (a) a document under the seal of the corporation that makes
the appointment; or
(b) a certificate, signed by an officer (as defined in section 9
of the Corporations Act 2001 of the Commonwealth) of
the corporation, that the appointment has been made.
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Division 6 Prosecutions against corporations
s. 153
(4) A corporation's representative is not, by reason only of the
appointment, qualified or entitled to act on behalf of the
corporation for any purposes other than those of this Division.
153. Representative's functions
5 (1) A corporation may appear before a court by its representative
who on behalf of the corporation may do all things that an
accused who is an individual may do before the court.
(2) If a corporation appears by its representative --
(a) a requirement to read, say, ask or do any thing in the
10 presence of the accused is to be construed as a
requirement to read, say, ask or do the thing in the
presence of the representative;
(b) any thing that must or may be done or said by an
accused personally may be done or said by the
15 representative; and
(c) any thing done or said or omitted to be said by the
representative is to be taken as having been done or said
or omitted to be said by the corporation.
(3) If a corporation does not appear by its representative --
20 (a) it is not necessary for any requirement referred to in
subsection (2)(a) to be complied with; and
(b) the court must enter a plea of not guilty on behalf of the
corporation unless the corporation has entered a plea
under section 154.
25 (4) This section does not limit the operation of section 172.
154. Pleas by or on behalf of a corporation
(1) Any plea by a corporation to a charge must be in writing and
either sealed with the corporation's seal or signed by a
representative appointed under section 152.
30 (2) A plea signed by the representative is for all purposes to be
taken to be the plea of the corporation.
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Witnesses Division 7
s. 155
155. Compelling a representative to appear
(1) If a court is satisfied that the presence of a representative of a
corporation is needed, the court may issue an approved notice to
the corporation that requires it to appear before the court at the
5 time and place specified in the notice by a representative
appointed under section 152.
(2) The approved notice must be served on the corporation in
accordance with Schedule 2 clause 4.
(3) In this Act an approved notice issued under this section is
10 referred to as a "section 155 notice".
(4) If a corporation, without a reasonable excuse, does not obey a
notice issued under subsection (1) and served on it under
subsection (2), it commits an offence.
Penalty: $60 000.
15 Division 7 -- Witnesses
156. Interpretation
In this Division, unless the contrary intention appears --
"attendance date", in relation to a witness summons, means
the date specified in the summons as the date on which the
20 person to whom it is issued is required to obey it.
157. Privilege, claims of not prevented
Nothing in this Division or Schedule 3 prevents a person from
claiming privilege in respect of any oral evidence to be given or
any record or thing to be produced.
25 158. Pre-trial statements and examinations of witnesses (Sch 3)
Schedule 3 has effect.
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Part 5 Provisions applicable to any prosecution
Division 7 Witnesses
s. 159
159. Compelling a witness to attend court
(1) On the application of a party to a case, a prescribed court officer
may --
(a) issue one or both of the following to an individual (the
5 "witness") --
(i) a witness summons that requires the witness to
attend the court to give oral evidence in the case;
(ii) a witness summons that requires the witness to
attend the court and produce to the court a record
10 or thing that is relevant to the case;
(b) issue to a corporation (the "witness") a witness
summons that requires the witness to produce to the
court a record or thing that is relevant to the case.
(2) On the application of a party to a case in a court of summary
15 jurisdiction, a magistrate of the court may issue an arrest
warrant for an individual (the "witness") who may be able to
give oral evidence, or to produce a record or thing, that is
relevant to the case.
(3) On the application of a party to a case in a superior court, a
20 judge of the court may issue an arrest warrant for an individual
(the "witness") who may be able to give oral evidence, or to
produce a record or thing, that is relevant to the case.
(4) On an application made under subsection (2) or (3) for an arrest
warrant the magistrate or judge must refuse to issue the warrant
25 unless satisfied by evidence on oath or affirmation that --
(a) the witness is likely to be able to give oral evidence, or
to produce a record or thing, that is relevant to the case;
and
(b) there are reasonable grounds to suspect that the witness
30 would not obey a witness summons if served with it.
(5) A witness summons issued under subsection (1)(a)(ii) or (b)
may require the witness to produce the record or thing
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Witnesses Division 7
s. 160
concerned to the court on a date before the date of the trial of
the case so that the applicant may inspect it before the trial.
(6) Section 184 applies to and in relation to a prescribed court
officer's decision made under subsection (1) to refuse to issue a
5 witness summons.
(7) If under section 184 the court sets aside the officer's decision, it
may issue a witness summons to the witness concerned.
160. Arrest warrant for witness, content of
An arrest warrant for a witness must --
10 (a) be in a form prescribed by the regulations;
(b) require the person who arrests the witness to bring the
witness before the court concerned as soon as is
reasonably practicable after doing so; and
(c) contain any information prescribed by the regulations.
15 161. Witness summons, content of
(1) A witness summons that requires the witness to attend to give
oral evidence must be in a form prescribed by the regulations.
(2) A witness summons that requires the witness to attend and
produce a record or thing must --
20 (a) be in a form prescribed by the regulations; and
(b) describe in reasonable detail the record or thing that the
witness is required to produce to the court.
(3) A witness summons referred to in subsection (1) or (2) must --
(a) state where and when the witness is required to obey the
25 summons; and
(b) contain any information prescribed by the regulations.
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Part 5 Provisions applicable to any prosecution
Division 7 Witnesses
s. 162
162. Witness summons, service of
(1) A witness summons must be served on the witness in
accordance with Schedule 2 clause 2 or, if the witness is a
corporation, Schedule 2 clause 4.
5 (2) A witness summons must be served a reasonable time before the
attendance date.
(3) At the time a witness is served with a witness summons, or at a
reasonable time before the attendance date --
(a) an amount that is likely to be sufficient to meet the
10 reasonable expenses of attending the court must be
tendered to the witness;
(b) arrangements to enable the witness to attend the court
must be made with the witness; or
(c) the means to enable the witness to attend the court must
15 be provided to the witness.
(4) The person who applied for the witness summons must ensure
that subsection (3) is complied with.
(5) The person who serves a witness with a witness summons must
record how subsection (3) was complied with on a copy of the
20 witness summons.
(6) If a copy of a witness summons contains information recorded
in accordance with subsection (5) it is to be presumed that the
information is true, unless the contrary is proved.
163. Witness summons to produce material, procedure on
25 (1) A person may obey a witness summons to produce a record or
thing by producing the record or thing and delivering it into the
custody of the court at the place specified in the summons --
(a) at least 2 days before the attendance date in the
summons; or
30 (b) on that attendance date.
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Witnesses Division 7
s. 164
(2) If a person obeys a witness summons to produce a record or
thing in accordance with subsection (1), the person is released
from the summons.
(3) If a record or thing is produced to a court under a witness
5 summons before the trial of the case concerned, the court must
notify the parties and may, before the trial --
(a) give leave for any party or other person to inspect the
record or thing or to take a copy of the record;
(b) order the record or thing to be returned to the person
10 who produced it on any just conditions; or
(c) make any other orders it thinks fit in relation to the
record or thing.
(4) If a record or thing is in the custody of the court when the trial
of the case concerned commences, it must be produced at the
15 trial by a court officer and in the absence of the jury, if any.
(5) A witness who has been served with a witness summons to
produce a record or thing must not, in the presence of a jury, be
called on to answer the summons or to produce the record or
thing unless the witness is in the course of giving oral evidence
20 before the jury.
164. Witnesses, securing further attendance of (Sch 4)
(1) When a witness who has been arrested under an arrest warrant is
brought before a court, the court may issue a witness summons
or make any order under Schedule 4 in order to ensure the
25 witness attends at the hearing concerned.
(2) Schedule 4 has effect.
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Part 5 Provisions applicable to any prosecution
Division 7 Witnesses
s. 165
165. Witness not attending, procedure on
If a witness who is an individual does not attend to give oral
evidence, or does not attend and produce a record or thing, in
accordance with --
5 (a) a witness summons that has been served on the witness
in accordance with section 162; or
(b) a witness undertaking entered into by the witness,
and the court before which the witness was required to attend is
satisfied that --
10 (c) the summons was so served or that the undertaking was
entered into, as the case requires; and
(d) the witness is likely to be able to give oral evidence, or
to produce a record or thing, that is relevant to the case,
the court may issue an arrest warrant for the witness.
15 166. Witness summons, cancelling
(1) On an application by the witness, a party to the case or a person
who has a sufficient interest in the witness summons, the court
that issued a witness summons may cancel it, wholly or in part
and on any terms it thinks fit.
20 (2) On such an application the court may order a party to the
application to pay all or some of another such party's costs.
167. Discharging a witness
(1) If under this Act a court discharges an accused from a charge
the court may also discharge any witness who has been
25 summonsed or who is subject to any witness undertaking in
respect of the charge.
(2) If under this Act a court discharges a witness in a case, any
summons to the witness, any witness undertaking by the
witness, and any surety undertaking in respect of the witness,
30 that relates to the case and that is then in effect ceases to be in
effect.
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Miscellaneous Division 8
s. 168
Division 8 -- Miscellaneous
168. Criminal records, proof of
(1) If an accused is served with a criminal record at least 5 working
days before the accused is to be sentenced, the record is
5 admissible in the sentencing proceedings as evidence of its
contents unless the accused objects.
(2) If an accused objects to the admission of a criminal record, the
court, if requested to do so by the prosecutor, must adjourn the
case to allow the prosecutor to prove the criminal record.
10 (3) This section does not prevent a court from admitting into
evidence, with the accused's consent, a criminal record that has
not been served on the accused.
(4) Subsection (1) does not affect the operation of the Evidence
Act 1906 sections 23 and 47.
15 169. Child, prosecution of in wrong court
(1) In this section, unless the contrary intention appears --
"child" means a person who is under 18 years of age.
(2) If a court that does not have jurisdiction to deal with a child for
an offence determines a charge against a person who is, or at a
20 time material to the court's jurisdiction was, a child in the belief
that the person is, or at the material time was, not a child --
(a) the court's determination has full force and effect; and
(b) anything done as a result of the determination is lawful.
(3) If a court that does not have jurisdiction to deal with a child
25 determines a charge as mentioned in subsection (2), a party to
the prosecution or the Attorney General may apply to --
(a) that court; or
(b) if the determination is subject to an appeal, the court
dealing with the appeal,
30 for an order setting aside the determination.
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Division 8 Miscellaneous
s. 170
(4) The court to which such an application is made may either --
(a) refuse the application;
(b) vary the determination and any sentence imposed or
other order made as a result of the determination; or
5 (c) set aside the determination and any sentence imposed or
other order made as a result of the determination and
order the prosecution to be sent to and dealt with by the
Children's Court,
and make any necessary consequential orders.
10 (5) If a court is dealing with an appeal in relation to the
determination, subsection (4) is in addition to the court's powers
on the appeal.
170. Exhibits, retention of etc.
(1) Every exhibit tendered in evidence to a court in a case must not
15 be released by the court to any person until at least 31 days after
the day on which the case is determined or dismissed except --
(a) to the Supreme Court for the purposes of an appeal
against the decision;
(b) under an order made by the Supreme Court; or
20 (c) under subsection (2).
(2) Despite subsection (1), the court --
(a) may dispose of an exhibit that it considers is dangerous
to retain; or
(b) may release an exhibit to a person who is entitled to
25 custody of it if the court considers that --
(i) it is dangerous, impracticable or inconvenient for
it to be retained under this section; or
(ii) it is necessary for that person to have the use of
the exhibit.
30 (3) A court that under subsection (2)(b) releases an exhibit to a
person may require the person, as a condition of being given the
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Provisions applicable to any prosecution Part 5
Miscellaneous Division 8
s. 171
exhibit, to give a written undertaking to the court as to the care,
maintenance and custody of the exhibit and its re-delivery to the
court.
(4) A person who, without a reasonable excuse, fails to carry out
5 such an undertaking commits an offence.
Penalty: a fine of $12 000 or imprisonment for 12 months.
(5) After the 31 days the court may release an exhibit to a person
who in the court's opinion is entitled to custody of it or may
require the party who tendered it in evidence to collect it.
10 171. Court to be open, publicity
(1) In this section, unless the contrary intention appears --
"proceedings" means proceedings on or in relation to a case.
(2) Subject to this section, all proceedings in a court are to be in
open court and the courtroom where the court sits is to be open
15 to the public unless this Act or the rules of court or another
written law provides otherwise.
(3) On an application by a party to the case, or on its own initiative,
a court may order a person who may be called as a witness in
proceedings, other than the accused --
20 (a) to leave the courtroom and to remain out of hearing of
the courtroom until called to give evidence;
(b) not to discuss his or her evidence with a person or
persons specified by the court.
(4) On an application by a party to the case, or on its own initiative,
25 a court may, if satisfied it is in the interests of justice to do so --
(a) order any or all persons, or any class of persons, to leave
or be excluded from the courtroom during the whole of
the proceedings, or a part of them specified by the court;
(b) make an order that prohibits the publication outside the
30 courtroom of the whole of the proceedings, or a part or
particular of them specified by the court;
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Division 8 Miscellaneous
s. 171
(c) make an order that prohibits or restricts the publication
outside the courtroom of any matter that is likely to lead
members of the public to identify a victim of an offence.
(5) The powers in subsection (4) may be exercised by a court at any
5 time after an accused is charged with an offence and before or
after the accused first appears in the court on the charge.
(6) An order made under subsection (4) may be made subject to
conditions specified by the court.
(7) If a court of summary jurisdiction makes an order under
10 subsection (4)(b) or (c) in a case that involves an indictable
charge in respect of which the accused is committed to another
court for trial or sentence, the court to which the accused is
committed may set aside the order, whether or not it also makes
an order under this section.
15 (8) A person who, under section 172(3), is entitled to act on behalf
of a party to the proceedings must not be excluded from the
courtroom under this section.
(9) If a person contravenes an order to leave the courtroom, the
court may order the person to be removed from the courtroom.
20 (10) A person who contravenes an order made under this section
commits an offence.
Penalty:
(a) for an individual, a fine of $12 000 or imprisonment
for 12 months;
25 (b) for a corporation, a fine of $60 000.
(11) In proceedings for a contravention of an order made under
subsection (4)(c) it is a defence to prove --
(a) that prior to the publication of the matter the victim, in
writing, authorised the publication; and
30 (b) that at the time the victim authorised the publication, the
victim had reached 18 years of age and was not a person
who, because of mental impairment (as defined in The
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Provisions applicable to any prosecution Part 5
Miscellaneous Division 8
s. 172
Criminal Code), was incapable of making reasonable
judgments in respect of the publication of such matter.
172. Representation of parties
(1) A party to a case is personally entitled to appear before the court
5 in order to present and conduct the party's case and to call,
examine, cross-examine and re-examine witnesses.
(2) The entitlements in subsection (1) are subject to the powers of
the court in the Evidence Act 1906 to control the questioning of
witnesses.
10 (3) Unless this Act or another written law expressly provides
otherwise, any entitlement of a party under this Act may be
performed --
(a) on a prosecutor's behalf in a court of summary
jurisdiction --
15 (i) if the prosecutor is the State or a police officer
acting in the course of duty, by a police officer
acting in the course of duty; or
(ii) if the prosecutor is acting for or on behalf of a
public authority, by an officer or employee of the
20 public authority acting in the course of duty,
despite the Legal Practice Act 2003;
(b) on any party's behalf in any court --
(i) by a lawyer;
(ii) with the court's leave by an articled clerk; or
25 (iii) with the court's leave by a person who is neither
a lawyer nor an articled clerk.
(4) The court may only give leave under subsection (3)(b)(iii) in
exceptional circumstances.
(5) A person who, having been given leave under
30 subsection (3)(b)(iii), performs any act referred to in
subsection (1) or (3) on behalf of a party is not entitled to claim,
receive or recover, directly or indirectly, money or other
remuneration for doing so.
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Criminal Procedure Bill 2004
Part 6 Miscellaneous
Division 1 Court documents
s. 173
Part 6 -- Miscellaneous
Division 1 -- Court documents
173. Unauthorised documents
A person must not --
5 (a) sign a prosecution notice, indictment, summons, court
hearing notice, or witness summons, knowing that he or
she is not authorised to do so; or
(b) lodge a prosecution notice or an indictment knowing
that it has been signed by a person who is not authorised
10 to sign it.
Penalty: a fine of $12 000 or imprisonment for 12 months.
174. Presumptions as to signatures
If a document that --
(a) under Part 3 is required to be signed by a person who is
15 an authorised investigator; or
(b) under Part 4 is required to be signed by a person who is
an authorised officer,
purports to be signed by such a person, it is to be taken to have
been signed by such a person unless the contrary is proved.
20 175. Service and proof of service
(1) Schedule 2 has effect for the purposes of this Act.
(2) A signed service certificate that contains service information
recorded in accordance with Schedule 2 may be tendered in
evidence without calling the person who signed the certificate.
25 (3) When a service certificate is tendered under subsection (2), it is
to be presumed, unless the contrary is proved --
(a) that the signature is that of the person who made the
certificate; and
(b) that the information in the certificate is true.
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Miscellaneous Part 6
Court documents Division 1
s. 176
(4) This Act does not prevent a person on whom a document or
other thing is required to be served from consenting to being
served by some means not in accordance with this Act including
by serving it on the person's lawyer.
5 (5) A person who is served with a document or other thing in a way
that is not in accordance with this Act but to which the person
has consented is to be taken to have been served in accordance
with this Act.
176. Effect of court documents
10 (1) In this section, unless the contrary intention appears --
"court document" means a summons, court hearing notice,
section 155 notice, witness summons, warrant or an order
or other document issued by a court.
(2) A court document has effect according to its wording.
15 (3) In the absence of evidence to the contrary, it is to be presumed
that --
(a) a court document that purports to have been issued by a
court was in fact issued by the court;
(b) the person who issued a court document was empowered
20 to do so; and
(c) any signature on a court document is that of the person
who issued it.
(4) The validity of a court document is not affected by the death of
the person who issued it.
25 177. Warrants, effect of and procedure on
(1) An arrest warrant for a person issued by a court --
(a) remains in effect until the person concerned is brought
before the court under the warrant or appears voluntarily
in the court, whichever happens first; and
30 (b) is itself sufficient authority to any person to whom it is
directed to act according to it.
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Part 6 Miscellaneous
Division 1 Court documents
s. 177
(2) A police officer must obey any warrant or other order or
direction of a court.
(3) A police officer who contravenes subsection (2) is to be dealt
with under the Police Act 1892 section 23.
5 (4) If an arrest warrant issued under this Act or another written law
requires a person to be brought before a court, the person --
(a) must be brought before the court as soon as practicable;
(b) may be brought before the court at any place where it is
sitting; and
10 (c) despite section 77, must be brought before the court in
person or, if that is not practicable, by means of a video
link or audio link between the court and the place where
the person is in custody.
(5) An audio link must not be used under subsection (4) unless a
15 video link is not available and cannot reasonably be made
available.
(6) A person who is brought to a court under a warrant may be held
in custody under the warrant until --
(a) the court releases the person or issues another warrant
20 that authorises the person to be held in custody; or
(b) the person, in accordance with a grant of bail, or an
order made under Schedule 4 clause 2(4), by the court,
is released.
(7) If a warrant says that a person (the "detainee") must be brought
25 before a court at a time and on a day stated in the warrant and
due to exceptional circumstances a person to whom a warrant is
directed is unable to do so, the warrant authorises the person to
keep the detainee in custody --
(a) until the end of that day; or
30 (b) until another remand warrant is issued in respect of the
detainee,
whichever happens first.
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Criminal Procedure Bill 2004
Miscellaneous Part 6
Court documents Division 1
s. 178
(8) If an accused is not brought before a court in accordance with a
remand warrant, the court, on its own initiative or on the
application of the prosecutor and in the absence of the accused,
may adjourn the case.
5 178. Defects etc. in court documents
(1) In this section, unless the contrary intention appears --
"court document" means a prosecution notice, indictment,
summons, court hearing notice, section 155 notice, witness
summons, warrant, or an order or other document issued by
10 a court in a case.
(2) Any objection by an accused to a prosecution notice or
indictment on the ground that it is defective must be made
before the prosecutor's opening address.
(3) If a court document is defective in substance or form, the court,
15 on an application by a party or on its own initiative --
(a) must order that the document be corrected if the defect
is not material to the merits of the case;
(b) may order that the document be corrected in any other
case.
20 (4) If a court makes an order under this section --
(a) the court document must be amended accordingly by the
court or some person ordered to do so by the court;
(b) each party is entitled to a copy of the amended court
document; and
25 (c) the court may adjourn the case.
(5) This section is in addition to and does not affect the operation of
section 132.
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Criminal Procedure Bill 2004
Part 6 Miscellaneous
Division 2 Offences
s. 179
179. Errors in court records due to use of wrong or false name
(1) If as a result of an accused using a false name, address or date of
birth, a record of a court does not record the accused's correct
name, address or date of birth, the court may correct the record
5 and make any ancillary orders needed to give effect to the
correction.
(2) The powers in subsection (1) may be exercised by the court on
its own initiative or on an application by a person who the court
is satisfied has a proper interest in the proceedings.
10 (3) Without limiting the power to make ancillary orders, the court
may --
(a) set aside a conviction or order made by the court;
(b) order a new trial;
(c) order that records other than the court's records be
15 corrected.
Division 2 -- Offences
180. Corporation and its officers, liability for offences
(1) In this section, unless the contrary intention appears --
"offence" means an offence under this Act;
20 "officer", of a corporation, has the same meaning as in the
Corporations Act 2001 of the Commonwealth but does not
include an employee of the corporation unless the
employee was concerned in its management.
(2) If a corporation is charged with an offence, every person who
25 was an officer of the corporation at the time of the alleged
offence may also be charged with the offence.
(3) If a corporation and an officer are charged as permitted by
subsection (2) and the corporation is found guilty of the offence,
the officer is to be taken to have also committed the offence,
30 subject to subsection (6).
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Miscellaneous Part 6
Offences Division 2
s. 181
(4) If a corporation commits an offence, then although the
corporation is not charged with the offence, every person who
was an officer of the corporation at the time of the offence may
be charged with the offence.
5 (5) If an officer is charged as permitted by subsection (4) and it is
proved that the corporation committed the offence, the officer is
to be taken to have committed the offence, subject to
subsection (6).
(6) If under this section an officer is charged with an offence, it is a
10 defence to prove --
(a) that the offence was committed without the officer's
consent or connivance; and
(b) that the officer took all measures to prevent the
commission of the offence that he or she could
15 reasonably be expected to have taken having regard to
the officer's functions and to all the circumstances.
181. Disobeying summons, offence
(1) If an accused, without a reasonable excuse, does not obey a
summons that has been served on the accused in accordance
20 with section 32(2), the accused commits an offence.
Penalty: a fine of $12 000 or imprisonment for 12 months.
(2) If a person, without a reasonable excuse, does not obey a
witness summons that has been served on the person in
accordance with section 162, the witness commits an offence.
25 Penalty:
(a) for an individual, a fine of $12 000 or imprisonment
for 12 months;
(b) for a corporation, a fine of $60 000.
(3) A prosecution for an offence under this section may be
30 commenced at any time.
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Criminal Procedure Bill 2004
Part 6 Miscellaneous
Division 3 General
s. 182
(4) A court that convicts a person of an offence under this section
may, in addition to the sentence it imposes, order the person to
pay a sum set by the court in or towards meeting any costs and
expenses that were incurred in arresting and bringing the person
5 before the court after his or her failure to appear or attend as
required by the summons.
(5) An order made under subsection (4) --
(a) must specify how and to whom the sum is to be paid;
and
10 (b) may be enforced as if the sum were a fine imposed for
an offence.
Division 3 -- General
182. Appointment of people to prosecute offences
(1) The Governor may appoint a person who is not otherwise
15 authorised under this Act to do so, including an officer of
another jurisdiction in Australia, to prosecute offences.
(2) Such an appointment may be made subject to any terms the
Governor thinks fit including restrictions as to which offences
or classes of offences it applies and as to the circumstances in
20 which the power to prosecute may be exercised.
(3) The Governor's power in subsection (1) may be exercised in
relation to any offence and despite any enactment that limits
who may commence or conduct a prosecution for the offence.
(4) Any such appointment must be in writing and must specify any
25 such terms.
(5) In the absence of evidence to the contrary, a court must presume
that a person appointed under subsection (1) is acting in
accordance with any terms applicable to it.
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Criminal Procedure Bill 2004
Miscellaneous Part 6
General Division 3
s. 183
183. Contempts, summary punishment of not prevented
This Act does not affect the authority of a court to deal with and
punish a person summarily for an act or omission that is a
contempt of the court, but a person cannot be so punished and
5 also punished for an offence under this Act constituted by the
same act or omission.
184. Decisions by court officer, review of
(1) This section only applies to a decision made by a prescribed
court officer under a provision of this Act if the provision says
10 this section applies to and in relation to the decision.
(2) A person who is dissatisfied with the decision may apply to the
court for a review of the decision.
(3) The application must --
(a) be made on a form prescribed by the regulations; and
15 (b) be made within 7 days after the date of the decision.
(4) The court may allow an application to be made out of time and
may do so even if the 7 days have elapsed.
(5) If the application is made to a court of summary jurisdiction or
the Children's Court, the court must be constituted by a
20 magistrate.
(6) The court may confirm the officer's decision or set it aside and
make any decision that the officer could have made, and may do
so on any just conditions.
185. Enforcing orders to pay money, other than fines etc.
25 (1) In this section, unless the contrary intention appears --
"payment order" means an order requiring a person to pay
money, other than --
(a) a fine within the meaning of the Fines, Penalties and
Infringement Notices Enforcement Act 1994
30 section 28;
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Criminal Procedure Bill 2004
Part 6 Miscellaneous
Division 3 General
s. 185
(b) compensation to be paid under a compensation order
made under the Sentencing Act 1995 Part 16;
(c) a sum the payment of which is enforceable under the
Fines, Penalties and Infringement Notices
5 Enforcement Act 1994 Part 5; or
(d) any costs ordered to be paid under the Official
Prosecutions (Accused's Costs) Act 1973.
(2) This section applies if a court makes a payment order.
(3) If the court is a superior court it may also make an order under
10 the Sentencing Act 1995 section 59 which, for that purpose,
applies with any necessary changes as if the money to be paid
under the payment order were a fine imposed on the person.
(4) If --
(a) the court is not a superior court or the court is a superior
15 court but does not make an order under the Sentencing
Act 1995 section 59; and
(b) the money to be paid under the payment order is not
paid within 28 days after the date of the order,
the person to whom the money is to be paid may enforce the
20 order by lodging a copy of it, certified as a true copy by the
court, and an affidavit stating to what extent it has not been
complied with, with a court of competent jurisdiction.
(5) When lodged with the court of competent jurisdiction, the order
is to be taken to be a judgment of that court and may be
25 enforced accordingly.
(6) This section does not prevent the recovery of the money by
means expressly provided by a written law.
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Criminal Procedure Bill 2004
Miscellaneous Part 6
General Division 3
s. 186
186. Regulations
(1) The Governor may make regulations prescribing any matter that
is required or permitted by this Act to be prescribed, or that is
necessary or convenient to be prescribed for giving effect to the
5 purposes of this Act.
(2) Without limiting subsection (1), regulations may --
(a) prescribe the fees to be paid in courts of summary
jurisdiction;
(b) prescribe forms to be used in courts;
10 (c) prescribe how applications to a court under this Act or
another written law must be made and conducted.
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Criminal Procedure Bill 2004
Schedule 1 Prosecution notices and indictments
Schedule 1 -- Prosecution notices and indictments
[s. 23, 85]
Division 1 -- Preliminary
1. Interpretation
5 In this Schedule, unless the contrary intention appears --
"receiving" means the offence under The Criminal Code section 414;
"stealing" means the offence under The Criminal Code section 378.
Division 2 -- Contents of prosecution notices and indictments
2. General rules
10 (1) A prosecution notice or indictment must not allege both an indictable
offence and a simple offence.
(2) A prosecution notice or indictment must relate to one accused only,
unless clause 7 or another written law permits otherwise.
(3) A prosecution notice or indictment must contain one charge only,
15 unless clause 7 or another written law permits otherwise.
(4) A charge must allege one offence only, unless clause 8 or another
written law permits otherwise.
(5) If a prosecution notice or indictment contains more than one charge,
each charge must be in a separate and consecutively numbered
20 paragraph.
(6) An indictment must list the witnesses who the prosecutor intends to
summons to give evidence in any trial of the indictment.
3. Prosecutor to be identified
(1) A prosecution notice must identify the prosecutor.
25 (2) For the purposes of subclause (1) it is sufficient for a prosecution
notice --
(a) if a prosecution is being commenced by a police officer, to
name the "WA Police" as the prosecutor;
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Prosecution notices and indictments Schedule 1
(b) if a prosecution is being commenced by a person who is
acting in the course of his or her duties as a public authority
or as an employee of a public authority, or who is authorised
by a public authority to commence the prosecution, to name
5 the public authority as the prosecutor,
if the prosecution notice identifies the individual who issues the notice
and is signed in accordance with section 23(3).
(3) An indictment must be commenced in the name of the State of
Western Australia.
10 4. Accused to be identified
(1) A prosecution notice or indictment must identify the accused --
(a) if the accused is an individual, by means of the accused's full
name and, if known, date of birth and usual place of
residence;
15 (b) if the accused is a corporation, by means of its name and, if it
has one, the ACN given to it under the Corporations
Act 2001 of the Commonwealth.
(2) If the circumstances so require, an accused who is an individual may
be identified, additionally or alternatively to the requirements of
20 subclause (1)(a), by one or more of the following --
(a) a photograph of the accused, attached to the prosecution
notice or indictment;
(b) a print of the accused's hands (including fingers), feet
(including toes), or ears, that will identify him or her,
25 attached to the prosecution notice or indictment;
(c) a reference to the accused's DNA profile in the prosecution
notice or indictment.
5. Alleged offence to be described
(1) A charge in a prosecution notice or indictment must inform the
30 accused of the alleged offence in enough detail to enable the accused
to understand and defend the charge, and in particular must --
(a) describe the offence with reasonable clarity;
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Schedule 1 Prosecution notices and indictments
(b) identify the written law and the provision of it that creates the
offence;
(c) identify with reasonable clarity --
(i) the date when the offence was committed or, if the
5 date is not known, the period in which the offence
was committed; and
(ii) where the offence was committed;
(d) if the offence is one against a person, identify the person
concerned in accordance with clause 6(2); and
10 (e) if the offence relates to property, comply with clause 6(4)
and (5).
(2) For the purposes of subclause (1) --
(a) it is sufficient to describe an offence in the words of the
written law that creates it;
15 (b) if that written law states that alternative acts, omissions,
capacities, or intentions, constitute the offence, the
alternatives may be set out;
(c) a charge is not defective only because an element of the
offence is not stated; and
20 (d) it is not necessary to allege --
(i) any matter, or any particulars as to a person or thing,
that need not be proved; or
(ii) the means or thing used to do an act constituting an
offence unless the means or thing is an element of the
25 offence.
6. Alleging particular matters and offences
(1) In a charge, figures and abbreviations may be used to express
anything if they are usually used to do so.
(2) If in a charge it is necessary to identify a person other than the
30 accused, it is sufficient to refer to --
(a) the person by any means that adequately identifies the person;
(b) "a person unknown" if the person's identity has not been able
to be ascertained;
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Prosecution notices and indictments Schedule 1
(c) the Commonwealth of Australia by "the Commonwealth";
(d) a State of the Commonwealth by the name of the State;
(e) a Territory by the name of the Territory; and
(f) the holder of a statutory office by the name of the office and
5 not the holder.
(3) In a charge that relates or refers to a document, it is sufficient to
describe the document by any name by which it is usually known or
by reference to its subject matter or effect.
(4) If in a charge it is necessary to mention money, it is sufficient to
10 mention the currency and the amount without specifying whether it is
in the form of coins, bank notes, a cheque, or some other form.
(5) In a charge that alleges an offence relating to property --
(a) it is not necessary to allege the value of the property unless
the value --
15 (i) is an element of the offence;
(ii) is relevant for the purposes of deciding whether the
offence must or may be dealt with on indictment or
summarily;
(iii) is relevant for the purposes of a written law; or
20 (iv) is relevant to the offence's statutory penalty;
(b) it is not necessary to allege who owned the property unless
the identity of the owner is an element of the offence or
relevant to the offence's statutory penalty;
(c) if who owned the property is being alleged and the property
25 was co-owned, it is sufficient --
(i) to name one of the co-owners and to add "and
another" or "and others" as the case requires;
(ii) if the co-owners are a body with a collective name, to
use the collective name without naming any one of
30 the co-owners;
(d) if who owned the property is being alleged and it is uncertain
which of 2 or more persons owned the property, it is
sufficient to allege that the property was owned by one or
other of them without specifying which one; and
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Schedule 1 Prosecution notices and indictments
(e) if who owned the property is being alleged and the property
was leased or hired to the accused, it is sufficient to allege the
name of the person who leased or hired the property to the
accused.
5 (6) In a charge that alleges an offence involving entering or being in a
place it is not necessary to describe the nature of the place, or to say
how entry was gained to the place, unless --
(a) it is an element of the offence;
(b) it is relevant for the purposes of deciding whether the offence
10 must or may be dealt with on indictment or summarily;
(c) it is relevant for the purposes of a written law; or
(d) it is relevant to the offence's statutory penalty.
(7) A charge that alleges an offence involving the administration or
taking of an affirmation, oath or engagement, or the making of a
15 statutory declaration, need not allege the words of the affirmation,
oath, engagement or statutory declaration.
(8) In a charge that alleges an offence involving the making of a demand
or a threat it is sufficient to state the purport of the words used to
make the demand or threat without stating the actual words used.
20 (9) A charge that alleges an offence involving an intention to commit an
offence need not specify the actual offence intended.
(10) A charge that alleges an offence involving deceit, fraud or dishonesty
(whether those words or others are used) need not allege the details of
the deceit, fraud or dishonesty.
25 (11) A charge that alleges an offence involving the giving of false
evidence, false information or a false statement (whether those words
or others are used) to a person or body need not allege the jurisdiction
of the person or body.
(12) In a charge that alleges an offence involving the giving of false
30 evidence, false information or a false statement (whether those words
or others are used) --
(a) it is sufficient to allege the effect of the evidence, information
or statement, or as much of the effect as is material, without
alleging the actual evidence, information or statement given;
35 and
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Prosecution notices and indictments Schedule 1
(b) the charge may allege that in the evidence, information or
statement the accused said 2 or more things that conflict
irreconcilably, without specifying which of them is false.
7. Multiple charges and multiple accused
5 (1) A prosecution notice or indictment may charge 2 or more offences as
alternatives to one another.
(2) Unless 2 or more charges are expressly said by a prosecution notice or
indictment to be alternatives to one another, they are not.
(3) A prosecution notice or indictment may charge one or more persons
10 with 2 or more offences if the offences --
(a) form or are a part of a series of offences of the same or a
similar character;
(b) are alleged to arise substantially out of the same or closely
related acts or omissions; or
15 (c) are alleged to arise from a series of acts or omissions done or
omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
(4) A prosecution notice or indictment may charge 2 or more persons
with --
20 (a) committing the one offence;
(b) aiding another person in committing the one offence,
although at different times;
(c) counselling or procuring the commission of the one offence,
although at different times; or
25 (d) being accessories after the fact to the one offence, although at
different times,
and may do so whether or not the principal offender is one of the
persons so charged or is charged in the same prosecution notice or
indictment.
30 (5) A prosecution notice or indictment may charge one or more persons
with any 2 or more of these offences, as alternatives to one another --
(a) an offence under The Criminal Code section 401(2) where the
offence alleged to have been committed is stealing;
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Schedule 1 Prosecution notices and indictments
(b) stealing;
(c) receiving,
if the property concerned in each offence charged is the same or partly
the same.
5 (6) A prosecution notice or indictment may charge 2 or more persons
with receiving the same property, although at different times, and
notwithstanding that the person who obtained the property is not
charged in the same prosecution notice or indictment.
8. Multiple offences may be charged as one in some cases
10 (1) If it is alleged that a person committed more than one assault on one
other person during one incident, the person may be charged with one
offence of assault, or of which assault is an element, in respect of the
other person.
(2) If in the case of an offence of being illegally in possession of a thing
15 (whether material or non-material) it is alleged that a person was
illegally in possession of more than one of the things at one time, the
person may be charged with one offence of possessing all of the
things.
(3) If it is alleged that on more than one occasion over a period a person
20 stole property, the person may be charged with one offence of stealing
all of the property as a general deficiency comprised of various
quantities of various property stolen over the period.
(4) If --
(a) it is alleged that on more than one occasion over a period a
25 person stole identifiable property; and
(b) it is not reasonably practicable to identify --
(i) which of the property or what quantity of the property
was stolen on each occasion; or
(ii) from whom the property was stolen on each occasion,
30 the person may be charged with one offence of stealing all of the
property.
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Prosecution notices and indictments Schedule 1
(5) If --
(a) it is alleged that on more than one occasion over a period a
person committed receiving in relation to identifiable
property; and
5 (b) it is not reasonably practicable to identify which of the
property or what quantity of the property was received on
each occasion,
the person may be charged with one offence of receiving all of the
property.
10 Division 3 -- Effect of certain charges
9. Joined charges and accused to be tried together
(1) If one prosecution notice or indictment contains 2 or more charges the
charges must be tried together unless a court orders otherwise under
this Act.
15 (2) If one charge charges 2 or more accused, they must be tried together
unless a court orders otherwise under this Act.
10. Charge of offence relating to property
If it is necessary to prove the ownership of property and a charge
complies with clause 6(5)(d), it is sufficient to prove that the property
20 was owned by one or other of the persons at the relevant time without
proving which was the owner.
11. Charge of burglary, stealing or receiving
(1) In this clause, unless the contrary intention appears --
"court" means --
25 (a) if a charge is being tried by a court of summary
jurisdiction or by a superior court constituted by a judge
without a jury, the court;
(b) if a charge is being tried by a superior court constituted by
a judge and a jury, the jury instructed by a judge.
30 (2) On a charge against one accused that complies with clause 7(5) --
(a) the accused may be found guilty of any one of the offences;
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Schedule 1 Prosecution notices and indictments
(b) if the court is satisfied that the accused committed one of the
offences but is unable to say which one, the court may find
the accused guilty of the offence that, in the court's opinion
based on the facts of the case, is the least serious offence.
5 (3) On a charge against 2 or more accused that complies with
clause 7(5) --
(a) each accused may be found guilty of any one of the offences
charged;
(b) any accused who is found guilty need not be found guilty of
10 the same offence as any other accused who is found guilty;
(c) if the court is satisfied that an accused committed one of the
offences but is unable to say which one, the court may find
the accused guilty of the offence that, in the court's opinion
based on the facts of the case, is the least serious offence.
page 146
Criminal Procedure Bill 2004
Service of documents and other things Schedule 2
Schedule 2 -- Service of documents and other things
[s. 175]
1. Interpretation
In this Schedule, unless the contrary intention appears --
5 "service information", in relation to the service of a document or
other thing under this Schedule, means information about the
service that is required by the document or the regulations.
2. Personal service of individuals
(1) This clause does not apply in relation to serving a corporation.
10 (2) To serve a document or other thing on an individual (the "named
person") in accordance with this clause, another person must --
(a) hand it to the named person in person;
(b) if the named person refuses to accept it, leave it near the
named person and orally draw his or her attention to it;
15 (c) hand it to another person who appears to have reached
16 years of age and who appears to be --
(i) residing at; or
(ii) in charge of, or employed by the person in charge of,
the place where the named person is known to reside or work;
20 or
(d) if the named person is in a prison (as that term is defined in
the Prisons Act 1981 section 3), hand it to the officer who at
the time is in charge of the prison.
(3) A person who serves a named person with a document or other thing
25 under this clause must record the service information in a service
certificate signed by the person.
(4) A document or other thing that is served under this clause is to be
taken to have been served on the named person on the day on which it
is handed to or left near a person under this clause.
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Criminal Procedure Bill 2004
Schedule 2 Service of documents and other things
3. Postal service on individuals and corporations
(1) This clause applies in relation to serving an individual or a
corporation.
(2) To serve a document or other thing on a person (the "named
5 person") in accordance with this clause, a person referred to in
subclause (4) or (5) must post it to the named person at --
(a) the address where the named person was last known to reside,
work or conduct a business; or
(b) if subclause (6), (7) or (8) applies, the address deemed by that
10 subclause to be the named person's last known address,
unless there is any reason for the person referred to in
subclause (4) or (5) to believe that that address is not where
the named person resides, works or conducts a business,
and, if necessary, in accordance with subclause (3).
15 (3) If the document is a court hearing notice, it must be posted under
subclause (2) at least 14 days before the court date stated in the notice.
(4) If the document is an infringement notice issued under Part 2, the
person who posts it must be an authorised officer (as defined in
section 4).
20 (5) If the thing being served is or relates to a prosecution notice, the
person who posts the thing must be --
(a) an officer of the court concerned;
(b) the prosecutor; or
(c) a person authorised in writing to do so by the prosecutor.
25 (6) If the thing being served is or relates to an infringement notice or a
prosecution notice that alleges the named person committed an
offence arising from the driving or use of a vehicle, the address of the
named person in a driver's licence produced by the person during the
investigation of the offence is deemed to be the named person's last
30 known address.
(7) If the thing being served is or relates to an infringement notice or a
prosecution notice that alleges the named person committed an
offence as the owner of a vehicle, the address of the named person
that is recorded as the address of the owner on the vehicle licence for
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Service of documents and other things Schedule 2
the vehicle that is in force at the time of the alleged offence is deemed
to be the named person's last known address.
(8) If the thing being served is or relates to an infringement notice or a
prosecution notice that alleges the named person committed an
5 offence under a written law, the address of the named person, or of
any premises of which the person is the owner or occupier, in any
licence, permit or similar document that is in force at the time of the
alleged offence under that law or a law connected to that law is
deemed to be the named person's last known address.
10 (9) For the purposes of subclause (8) a law is connected to a written law
if it is --
(a) subsidiary legislation made under that written law;
(b) the law that empowers the making of that written law as
subsidiary legislation;
15 (c) a code or similar provision adopted or enacted by that written
law; or
(d) the law that adopted or enacted that written law as a code or
similar provision.
(10) A person who serves a named person with a document or other thing
20 under this clause must record the service information in a service
certificate signed by the person.
(11) A document or other thing that is served under this clause is to be
taken to have been served on the named person on the fourth working
day after the date on which it was posted unless the contrary is
25 proved.
4. Service on corporations
(1) This clause does not apply in relation to serving an individual.
(2) To serve a document or other thing on a corporation (the "named
person") in accordance with this clause, it must be served on the
30 named person in accordance with --
(a) section 109X of the Corporations Act 2001 of the
Commonwealth if the named person is a company within the
meaning of that Act;
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Schedule 2 Service of documents and other things
(b) section 601CX of the Corporations Act 2001 of the
Commonwealth if the named person is a registered body
within the meaning of that Act;
(c) the Associations Incorporation Act 1987 section 41 if the
5 named person is an incorporated association under that Act;
or
(d) by leaving it at, or posting it to, the corporation's principal
place of business if the named person is any other
corporation,
10 and, if necessary, in accordance with subclause (3).
(3) If the document is a court hearing notice, it must be posted under
subclause (2) at least 14 days before the court date stated in the notice.
(4) A person who serves a named person with a document or other thing
under this clause must record the service information in a service
15 certificate signed by the person.
(5) A document or other thing that is served by post under this clause is to
be taken to have been served on the named person on the fourth
working day after the date on which it was posted unless the contrary
is proved.
20 5. False service information, offence
A person who records any service information in a service certificate
that is false in a material particular commits an offence.
Penalty: a fine of $12 000 or imprisonment for 12 months.
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Criminal Procedure Bill 2004
Pre-trial statements and examinations of witnesses Schedule 3
Schedule 3 -- Pre-trial statements and examinations
of witnesses
[s. 158]
1. Interpretation
5 In this Schedule, unless the contrary intention appears --
"relevant court", in relation to a charge against an accused,
means --
(a) if the accused is committed to a superior court on the
charge, or if an indictment containing the charge is lodged
10 in a superior court, the superior court;
(b) otherwise, the court of summary jurisdiction in which the
accused is charged.
2. Evidence Act 1906 not affected
This Schedule is in addition to and does not limit the operation of the
15 Evidence Act 1906.
3. Admissibility of dying declarations not affected
This Schedule does not affect the law as to the admissibility of dying
declarations.
4. Witness statements, formalities of
20 (1) A written statement containing the evidence of a witness that is or
may be relevant to a charge is made in accordance with this clause if
the statement complies with the conditions in subclause (3).
(2) An electronically recorded statement containing the evidence of a
witness that is or may be relevant to a charge is made in accordance
25 with this clause if the statement complies with the conditions in
subclause (4).
(3) The conditions with which a written statement must comply are as
follows --
(a) the statement identifies the person making it (the "maker");
30 (b) if the maker is under 18 years of age, it states his or her age;
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Schedule 3 Pre-trial statements and examinations of witnesses
(c) unless the maker is under 12 years of age, it contains a
declaration in accordance with subclause (5);
(d) the statement purports to be signed by the maker; and
(e) if the statement is made by a person who cannot read, it is
5 read aloud to the maker before the maker signs it, and it is
accompanied by a declaration of the person who read the
statement to the effect that it was so read.
(4) The conditions with which an electronically recorded statement must
comply are as follows --
10 (a) the statement identifies the person making it (the "maker");
(b) if the maker is under 18 years of age, it states his or her age;
and
(c) unless the maker is under 12 years of age, it contains a
declaration in accordance with subclause (5).
15 (5) A declaration is in accordance with this subclause if it contains words
to the following effect --
This statement is true to the best of my knowledge and belief. I have
made this statement knowing that, if it is tendered in evidence, I will
be guilty of a crime if I have wilfully included in the statement
20 anything that I know to be false or that I do not believe is true.
(6) A statement is deemed to be tendered in evidence under this clause at
the time that the statement is tendered to the court.
(7) Any document or object referred to as an exhibit and identified in a
statement tendered in evidence under this clause is deemed to have
25 been produced before the court and identified by the maker of the
statement.
(8) If the maker of a statement that is tendered in evidence under this
clause wilfully includes anything in it that he or she knows is false or
that he or she does not believe is true, he or she is guilty of a crime
30 and is liable to imprisonment for 7 years.
5. Examination of witness, court may order
(1) At any time after a person is charged with an offence and before the
trial of the charge, the prosecutor may apply to the relevant court for
an order that a person who is or may be able to give evidence that is
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Criminal Procedure Bill 2004
Pre-trial statements and examinations of witnesses Schedule 3
or may be relevant to the charge (the "witness") be examined and
recorded under clause 6 before the trial of the charge.
(2) The application must be served on the accused and must be dealt with
in the presence of the accused unless the relevant court orders
5 otherwise.
(3) A relevant court may only make an order under subclause (2) if it is
satisfied that the order is necessary --
(a) to protect the safety or welfare of a person, including the
witness;
10 (b) to prevent interference with the course of justice; or
(c) for any other good reason.
(4) On an application made under subclause (1) the relevant court may
make the order if it is satisfied that the witness --
(a) is or may be able to give evidence that is or may be relevant
15 to the charge; and
(b) despite a request to do so from the prosecutor, has refused to
make a statement that complies with clause 4 and that
contains the witness's evidence in relation to the charge.
(5) If a court makes an order under subclause (1) it may also issue a
20 witness summons, or an arrest warrant, under Part 5 Division 7, or
make any order under Schedule 4, in respect of the witness to ensure
the witness appears before the court to be examined under clause 6.
6. Examination of witness, conduct of
(1) When a witness appears or is brought before a court on a summons or
25 arrest warrant issued under clause 5(5), the witness is to be examined
on oath or affirmation, and his or her evidence is to be recorded, in
accordance with this clause.
(2) At the examination --
(a) the prosecutor is entitled to examine, and if necessary,
30 re-examine the witness;
(b) the accused is entitled to be present and to cross-examine the
witness, unless an order has been made under clause 5(2); and
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Schedule 3 Pre-trial statements and examinations of witnesses
(c) the court must conduct proceedings as if the witness were
giving evidence in a trial of the charge concerned but must
not allow the witness to be cross-examined on any matter --
(i) that relates solely to his or her credibility; or
5 (ii) that does not relate directly to evidence given by him
or her when being examined by the prosecutor.
(3) A court conducting an examination of a witness under this clause is
not prevented from making orders under the Evidence Act 1906
sections 106A to 106T in relation to the witness.
10 (4) The court must ensure that the evidence of the witness is --
(a) electronically recorded; or
(b) if electronically recording it is not practicable, recorded
directly in writing.
(5) If the evidence of a witness is electronically recorded, the court may
15 order the evidence to be transcribed, in which case the transcript must
be checked and certified as correct in accordance with the regulations.
(6) If the evidence of a witness is recorded directly in writing, the
evidence must be read to or by the witness, signed by the witness and
signed by the judicial officer constituting the court.
20 (7) The court must give a copy of the recording of a witness's evidence
and any transcript of it to the prosecutor and, if the accused was
present at the examination of the witness, the accused.
(8) If a person publishes any evidence given by a witness on an
examination under this clause before the evidence is given in open
25 court in a trial or in sentencing proceedings, or before its substance is
stated aloud under section 129, the person commits an offence.
Penalty:
(a) for an individual, a fine of $12 000 or imprisonment for
12 months;
30 (b) for a corporation, a fine of $60 000.
(9) Subclauses (7) and (8) do not affect any legal obligation that a
prosecutor has in the course of a prosecution to lodge or disclose the
evidence of a witness.
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Pre-trial statements and examinations of witnesses Schedule 3
7. Witness's pre-trial evidence, use of at trial
(1) A court dealing with a charge may admit into evidence a statement of
a witness or a recording of a witness's evidence if the court is
satisfied that the statement complies with clause 4 or the recording
5 was made in accordance with clause 6 and --
(a) that the witness is dead;
(b) that the witness's medical or mental condition is such that the
witness is unable to give evidence, or to give evidence
satisfactorily, notwithstanding that the witness might recover
10 at some future time;
(c) that the witness is out of the State and is not able to give
evidence at the proceeding by means of a video link or an
audio link, notwithstanding that the witness might return at
some future time;
15 (d) that the witness is being kept out of the way by the accused;
or
(e) that all the parties consent and that the interests of justice do
not require the presence of the witness.
(2) If there is a prospect that the witness might recover or return, the court
20 need not admit the statement or recording but may adjourn the trial.
(3) A party who intends to apply to a court for the admission under
subclause (1) of a statement or recording must give each other party
written notice of the application.
(4) A party who has received at least 14 days' notice under subclause (3)
25 must not allege --
(a) that a statement sought to be tendered in evidence does not
comply with clause 4; or
(b) that a recording sought to be tendered in evidence was not
made in accordance with clause 6,
30 unless the party has given the party who intends to tender it at least
7 days' written notice of the allegation.
(5) A court may refuse to admit a statement or recording under this clause
if the court is satisfied that the admission of the statement or recording
would be unfair to the party.
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Schedule 3 Pre-trial statements and examinations of witnesses
(6) If a statement or a recording in a written form is admitted in evidence
under this clause in a case being tried by a jury, it must be read aloud
to the jury but, unless the court orders otherwise, must not be given to
the jury.
5 (7) If a recording in the form of an electronic recording is admitted in
evidence under this clause in a case being tried by a jury, it must be
played to the jury but, unless the court orders otherwise, must not be
given to the jury.
page 156
Criminal Procedure Bill 2004
Securing the further attendance of witnesses Schedule 4
Schedule 4 -- Securing the further attendance of witnesses
[s. 164]
1. Interpretation
In this Schedule, unless the contrary intention appears --
5 "relevant court", in relation to a charge, means --
(a) if the accused is committed to a superior court in relation
to the charge, or if an indictment containing the charge is
lodged in a superior court, the superior court;
(b) otherwise, the court of summary jurisdiction in which the
10 accused is charged;
"witness undertaking" means a written undertaking entered into by a
witness in accordance with an order made under clause 2(4).
2. Witness may be imprisoned until trial
(1) When a witness in relation to a charge attends a court (whether or not
15 having been arrested) the court may order that the witness be
imprisoned until released at the trial of the charge by the relevant
court.
(2) A court must not make an order under subclause (1) unless satisfied
that --
20 (a) the witness is likely to be able to give oral evidence, or to
produce a record or thing, that is relevant to the case; and
(b) there are reasonable grounds to suspect that the witness
would not obey a witness summons if served with it.
(3) If a court makes an order under subclause (1) the court must issue a
25 warrant for the witness's imprisonment.
(4) If an order is made under subclause (1), the relevant court may order
that the witness be released before the trial of the case concerned if --
(a) he or she enters into a written undertaking to attend at the
trial of the case or at some other date set by the court --
30 (i) to give oral evidence; or
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Criminal Procedure Bill 2004
Schedule 4 Securing the further attendance of witnesses
(ii) to produce to the court a record or thing specified in
the order;
and
(b) any order made under subclause (5) is complied with.
5 (5) For the purposes of ensuring a witness attends in accordance with his
or her undertaking or in the meantime does not obstruct, prevent,
pervert or defeat the course of justice, a court that makes an order
under subclause (4) may make an order that requires any or all of the
following --
10 (a) the witness to agree in his or her witness undertaking --
(i) to forfeit a sum of money specified in the order if the
witness does not attend in accordance with his or her
undertaking;
(ii) to do or not to do anything specified by the court;
15 (b) the witness to deposit with the court as a security --
(i) the sum of money specified under paragraph (a)(i);
(ii) a record or thing and the means by which it can be
realised if the witness does not attend in accordance
with his or her undertaking;
20 (c) one or more sureties to each enter into a surety undertaking
under which he or she agrees to forfeit a sum of money
specified in the order if the witness does not attend in
accordance with the witness's undertaking;
(d) one or more sureties to deposit with the court as a security --
25 (i) the sum of money specified under paragraph (c);
(ii) a record or thing and the means by which it can be
realised if the witness does not attend in accordance
with the witness's undertaking.
(6) On the application of the witness or on its own initiative, the relevant
30 court may at any time cancel a warrant to imprison a witness or
amend or cancel an order made under subclause (4) or (5).
(7) If a witness is no longer required to give oral evidence or to produce a
record or thing, the relevant court must cancel the warrant to imprison
the witness and make any consequential orders needed in relation to
35 any thing done under an order made under subclause (5).
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Criminal Procedure Bill 2004
Securing the further attendance of witnesses Schedule 4
3. Witness undertakings, provisions about
(1) A witness undertaking may be entered into before the judicial officer
who made the order requiring the undertaking or any person referred
to in the Bail Act 1982 section 29.
5 (2) The person before whom a witness undertaking is entered into must
comply with the Bail Act 1982 section 30 which applies, with any
necessary changes, as if the witness were a defendant and the witness
undertaking were a bail undertaking.
(3) The Bail Act 1982 sections 31 and 32 apply, with any necessary
10 changes, in relation to a witness undertaking as if the witness were a
defendant and the witness undertaking were a bail undertaking.
(4) If the party that applied for a witness summons or an arrest warrant
for a witness, or a police officer, has reasonable grounds to believe
that the witness --
15 (a) will not attend in accordance with a witness undertaking that
the witness has made; or
(b) has contravened such a witness undertaking,
the party or police officer may apply to the relevant court for an arrest
warrant for the witness.
20 (5) If the relevant court is satisfied there are reasonable grounds for the
belief of the party or police officer, the court may issue an arrest
warrant for the witness.
(6) When the witness is brought before the relevant court under the arrest
warrant, the court may make an order under this Schedule or order the
25 witness to be released from custody.
4. Witness undertaking, contravention of
(1) A witness who, without a reasonable excuse, contravenes his or her
witness undertaking commits an offence.
Penalty: a fine of $12 000 or imprisonment for 12 months.
30 (2) Section 181(3), (4) and (5), with any necessary changes, apply in
relation to an offence under subclause (1).
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Schedule 4 Securing the further attendance of witnesses
(3) The Bail Act 1982 sections 52 and 53 apply, with any necessary
changes, in relation to an offence under subclause (1), a witness, and a
witness undertaking, in the same way as they apply respectively in
relation to an offence under section 51(1) of that Act, a defendant, and
5 a bail undertaking.
(4) If a witness is convicted of an offence under subclause (1), the Bail
Act 1982 section 57 applies, with any necessary changes, in relation to
the witness, and the witness undertaking, in the same way as it applies
respectively in relation to a defendant, and a bail undertaking.
10 5. Surety undertakings, application of Bail Act provisions to
The Bail Act 1982 Part VI (other than section 35(1)) applies, with any
necessary changes, in relation to any surety undertaking required by
an order made under clause 2(5)(c) in the same way as it applies in
relation to a surety undertaking required by a grant of bail under that
15 Act.
6. Application of other Bail Act provisions
The Bail Act 1982 sections 60, 62, 64 and 65 apply, with any
necessary changes, in relation to a witness, a surety required under an
order made under clause 2(5), and a witness undertaking, in the same
20 way as they apply respectively in relation to a defendant, a surety
required by a grant of bail under that Act, and a bail undertaking.
page 160
Criminal Procedure Bill 2004
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
accused ....................................................................................................... 3(1)
acquit .......................................................................................................... 3(1)
adjourn........................................................................................................... 18
alibi evidence .................................................................................. 62(1), 96(1)
alleged offender ............................................................................................... 4
approved notice ........................................................................................... 3(1)
approved officer ............................................................................................... 4
arrest warrant .............................................................................................. 3(1)
attendance date............................................................................................. 156
audio link.................................................................................................... 3(1)
authorised investigator.................................................................................... 18
authorised officer ...................................................................................4, 80(1)
authorised person .......................................................................................20(1)
bail documents ............................................................................................... 36
case............................................................................................................. 3(1)
charge ......................................................................................................... 3(1)
charge A ....................................................................................................83(4)
child.........................................................................................................169(1)
committed ..................................................................................................80(1)
community order ......................................................................................121(1)
confessional material ......................................... 35(1), 42(1), 45(1), 61(1), 95(1)
convict ........................................................................................................ 3(1)
convicted person ......................................................................................121(1)
corporation.................................................................................................. 3(1)
corresponding law ......................................................................................11(1)
court ............................................................................3(1), 18, Sch. 1, cl. 11(1)
court date ....................................................................................................... 18
court document.............................................................................176(1), 178(1)
court hearing notice ..................................................................................... 3(1)
court of summary jurisdiction ...................................................................... 3(1)
courtroom.................................................................................................... 3(1)
current licence holder .................................................................................11(1)
deal with ..................................................................................................... 3(1)
decision.......................................................................................................... 70
detainee....................................................................................................177(7)
determine .................................................................................................... 3(1)
disclosure requirement......................................................... 63(1), 97(1), 138(1)
disclosure/committal hearing .......................................................................... 36
document .................................................................................................... 3(1)
page 161
Criminal Procedure Bill 2004
Defined Terms
DPP ............................................................................................................ 3(1)
either way charge ........................................................................................ 3(1)
electronic recording..................................................................................... 3(1)
evidentiary material..................................................... 42(1), 45(1), 61(1), 95(1)
exception....................................................................................................78(1)
expert evidence material .................................................................. 62(1), 96(1)
first court date ................................................................................................ 18
indictable charge ......................................................................................... 3(1)
indictable offence ........................................................................................ 3(1)
indictment ................................................................................................... 3(1)
lawyer ......................................................................................................... 3(1)
licensed......................................................................................................11(1)
listed simple offence...................................................................................60(1)
lodge............................................................................................... 95(1), 96(1)
lower court.................................................................................................99(1)
magistrate ................................................................................................... 3(1)
maker..........................................................................Sch. 3, cl. 4(3), 3, cl. 4(4)
named person ............................................. Sch. 2, cl. 2(2), 2, cl. 3(2), 2, cl. 4(2)
new court date............................................................................................75(4)
new time ....................................................................................................75(4)
offence ............................................................................................ 3(1), 180(1)
officer ......................................................................................................180(1)
party............................................................................................................ 3(1)
payment order ..........................................................................................185(1)
police prosecutor ........................................................................................35(1)
post ............................................................................................................. 3(1)
prescribed.............................................................................................18, 80(1)
prescribed Act .................................................................................................. 4
prescribed court officer................................................................................ 3(1)
prescribed offence ............................................................................................ 4
prescribed public authority.............................................................................. 18
prescribed simple offence ...........................................................................35(1)
proceedings....................................................................................88(1), 171(1)
prosecution.................................................................................................. 3(1)
prosecution notice ....................................................................................... 3(1)
prosecutor ................................................................................................... 3(1)
public authority ........................................................................................... 3(1)
receiving ..........................................................................................Sch. 1, cl. 1
record.......................................................................................................... 3(1)
relevant authorised officer ....................................................................36, 80(1)
relevant court .......................................................................Sch. 3, cl. 1, 4, cl. 1
remand warrant ........................................................................................... 3(1)
responsible person ......................................................................................11(1)
serve ....................................................... 35(1), 42(1), 61(1), 62(1), 95(1), 96(1)
service information...........................................................................Sch. 2, cl. 1
page 162
Criminal Procedure Bill 2004
Defined Terms
simple offence............................................................................................. 3(1)
statutory penalty.......................................................................................... 3(1)
stay order .................................................................................................121(1)
stealing ............................................................................................Sch. 1, cl. 1
summons..................................................................................................... 3(1)
superior court .............................................................................................. 3(1)
trial date...................................................................................................... 3(1)
vehicle ........................................................................................................ 3(1)
vehicle licensing law ..................................................................................11(1)
vehicle offence ...........................................................................................11(1)
video link.................................................................................................... 3(1)
witness.................................................... 159(1), 159(2), 159(3), Sch. 3, cl. 5(1)
witness documents ......................................................................................... 36
witness summons ........................................................................................ 3(1)
witness undertaking..................................................................3(1), Sch. 4, cl. 1
working day ................................................................................................ 3(1)
written plea .................................................................................................... 18
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