Courts of Session Act 1921 (WA)

No. 24.] Courts of Session. [1921

COURTS OF SESSION.

12° GEO. V., No. XXIV.

No. 24 of 1921.

AN ACT to provide for the establishment of Courts of Session with Criminal Jurisdiction, and to make better provision for the local administration of the Criminal Law, and for other incidental purposes.

[Assented to 20th December, 1921.]

B E it enacted by the King's Most Excellent Majesty, byCouncil and Legislative Assembly of Western Australia, inand with the advice and consent of the Legislative

this present Parliament assembled, and by the authority of

the same, as follows:—

Short title and

commencement. 1. This Act may be cited as the Courts of Session Act, 1921, and shall come into operation on a day to be fixed by proclamation.

Interpretation. 2. In this Act, subject to the context,

"Attorney General" includes, in case of the absence of the Attorney General or of his inability to perform the duties of his office or of a vacancy in the office, any Minister of the Crown or other person whom the Gov- ernor may see fit (as he is hereby empowered) to ap- point to exercise the powers of the Attorney General under this Act;

"Code" means the Criminal Code;

"Court" means a Court of Session;

"District" means a Magisterial District;

"Division" means a Sessions Division;

"Judge" means a Judge of the Supreme Court, and in-

cludes any Commissioner appointed under the Supreme

Court Act, 1880;

"Judgment" includes conviction, sentence, warrant and

order;

1921. ] Courts of Session. [No. 24.

"Sheriff" means the Sheriff of Western Australia, and includes any deputy or under sheriff or any person ap- pointed by the Sheriff by writing under his hand and seal to act for him or in his stead;

"Supreme Court" includes a Judge.

3. The Acts set out in the first schedule hereto are re- Repeal. blest Schedule.

pealed to the respective extents specified therein.

Sessions Divisions.

4. The Governor may, by proclamation, subject to this Sessions Divisions.

Act

(a)	constitute any Magisterial District, or two or more Districts together, a Sessions Division for the pur- poses of this Act;
(b)	declare the name by which any Division shall be

known;

(c) revoke or vary any proclamation made under this

section;

(d) abolish any Division.

Provided that the Districts of Perth, Swan, and Fre- See No. 11 of 1005,

mantle shall, for the purposes of this and the next succeeding Sec. 2.

section, be deemed to constitute together one Magisterial Dis-

trict: And provided, also, that the District of East Kimber-

ley and the District of West Kimberley shall, each by itself,

constitute one Division under this Act, and shall be so pro-

claimed accordingly; but nothing in this section shall be

deemed to prevent the alteration (subject to the next succeed-

ing section) of the boundaries of any District.

5. It shall not be lawful for any Magisterial District to be Magisterial Districts :,1po dise visded of

divided for the purposes of this Act so that part thereof shall Wri:).	this Act.
be in any Division and part not in such Division, and no pro- clamation shall be made under the Magisterial Districts Act, 1886, which would have the effect of contravening this provi- sion unless at the same time provision shall be made to ob- viate such contravention.

Courts of Session.

6. The Governor may, by proclamation,— Courts of Session.

(a) establish for any Division named therein a Court of

Session and assign a name to the Court;

(b) revoke any proclamation made under this section.

No. 24.] Courts of Session. [1921.

Appointment of

Chairman of Court. 7. (1) The Governor shall appoint a Chairman of each

Court.

(2) The same person may be appointed Chairman of two or more Courts.

(3) A Chairman must be a Police or Resident Magistrate. (1-) The Governor may appoint any Police or Resident

Magistrate to be Deputy Chairman of any Court or of two or more Courts, and such. Deputy may, in the case of the sickness or of the absence from any cause of the Chairman from any sitting of the Court, act as Chairman and exercise all the powers and perform all the duties of such Chairman.

Constitution of

Courts. 8. (1) Every Court shall be constituted of and held be-

fore

(a)	the Chairman; or
(b)	the Chairman and any one or more Justice or Jus-

tices; or

(c) a Judge acting under the provisions hereinafter

contained.

(2) When a Judge is present and acting at any sitting of the Court, neither the Chairman nor any Justice shall have power to act thereat.

(3) No Justice shall be entitled to sit in any Court of any Division unless he is a Justice for the State or of some Dis- trict which is comprised in or constitutes the Division.

(4) No Justice shall take part in any decision unless he has been present during the whole of the hearing.

(5) In the event of any disagreement between the mem- bers of the Court, the opinion of the majority shall prevail; but if the members are equally divided, the opinion of the Chairman shall prevail.

Appointment of

Clerk. 9. The Governor may appoint any person, being a clerk of petty sessions, to be the Clerk of the Court of any one or more divisions.

Abolition of Courts. 10. A Court of a Division shall be deemed to be abolished

and shall cease to exist when

(a) the Division is abolished; or

(b) the proclamation establishing the Court is revoked.

1921.] Courts of Session. [No. 24.

11. Every Court established under this Act shall be a Court of Record and shall have and use a seal bearing a device or impression of the Royal Arms within an exergue or label sur- rounding the same and with the name of the Court inscribed, and such seal shall be in the custody of the Clerk.	of Record. Seal.
Courts to be Courts
12. (1) it shall be lawful for the Supreme Court at any time on application made by or on behalf of the Attorney Gen-	Power

Supreme

f!.1,

reibentg'guhretstried

eral to issue a writ according to the form in the second sche-	by a Judge.
dule to this Act directed to the Chairman and Justices of any	Second Schedule.
Court of Session, commanding them to reserve for trial and determination by a Judge such indictments and matters triable or determinable at any specified sittings of the Court as may be mentioned in the writ, and also any other indictments and matters triable or determinable at the same sittings which a Judge shall direct to be so reserved; and any writ so issued shall be of the same validity as if it were enacted in the body of this Act; and any Judge acting pursuant to any such writ shall have all the powers of the Court of Session, and shall have and may exercise, in respect of any indictment or matter that may come before him, and the trial and disposal thereof, such powers and privileges as he would have if sitting and acting in the Supreme Court.
Provided that a Judge may, if he shall think fit, order that any indictment or matter reserved pursuant to any writ issued hereunder shall be heard and determined as if it had not been so reserved and were not affected by the writ, and it shall be so heard and determined accordingly.
(2) Any such writ may be issued on the order of a Judge in Chambers, and the Judge's fiat shall be sufficient authority to the Registrar of the Supreme Court to sign and issue the writ under the Seal of the Supreme Court.
(3) A Commissioner may be empowered by Commission issued by the Governor to exercise all or any of the powers of a Judge under any writ issued or to be issued under this sec- tion, and every such Commission shall be deemed to be au- thorised by and issued under the Supreme Court Act, 1880.

Jurisdiction.

13. The Court of a Division shall be a Court of Oyer and Local jurlsdictiox.

Terminer and Gaol Delivery with a jurisdiction territorially co-extensive with the Division and shall accordingly (subject as hereinafter provided) have power to deal on indictment

No. 24.] Courts of Session. [1921.

with offences and the trial and punishment of offenders to the extent indicated in section five hundred and seventy-five of the Code and in the other provisions of the Code relating to the powers of Courts of criminal jurisdiction.

Limitations on

jurisdictions of 14.

No Court of Session shall, except when it is constituted of and held before a Judge, have jurisdiction

Courts.

(a) in the case of any such offence as is defined in Chap-

ter VI., VII., VIII., X., or XI. of the Code; or

(14 in any case of murder or wilful murder.

Power of Supreme	15.	(1.) In case any judgment of a Court of Session shall
Court to amend
Order made in

excess of the	be questioned before the Supreme Court as being in excess of
Jurisdiction of
Court of Sessions,	jurisdiction, the Supreme Court may, if of opinion that such excess exists, substitute such judgment as the Court of Ses- sion might have given and the Supreme Court shall think just.
(2) The power hereby given may be exercised in what- ever manner the question is raised before the Supreme Court, and the substituted judgment shall have effect as if originally given by the Court of Session.
Power of supreme

Court to order 16. (1) When a person has been committed for trial for

removaCo l of jutliet- an indictable offence at any Court of Session, or an indictment

meat to urt whic h

without such order has been presented against any person in such a Court, thenwould not have jurisdiction. the Supreme Court may (whether the person has been ad-

mitted to bail or not), upon good cause shown and on the ap- plication of the Crown or of the accused person, order that the trial shall be held in and before some other Court of Ses- sion at such sittings or time as the Supreme Court may fix, notwithstanding that such other Court of Session would not, but for the order, have any jurisdiction.

(2)

When an order is made under the provisions of this section the consequences are the same in all respects and with regard to all persons as if the accused person had been law- fully committed for trial or the indictment had been lawfully presented against him at or in such other Court, and if he has been admitted to bail the recognisances of bail are to be deemed enlarged in respect of time and place accordingly.

The recognisances of any person who is bound to attend as witness shall be deemed to be enlarged in like man- ner; but reasonable notice of the time and place at which his attendance is required must be given to any such person, otherwise his recognisance cannot be forfeited.

(3)

1921.]	Courts of Session.	[No. 24.
Sittings of Court.

Sittings of Court.

17. (1) The Governor may by proclamation— (a) appoint the place within a Division where the sit-

tings of the Court of that Division shall be held; allow the Court to sit temporarily at any place within the Division other than the place so ap- pointed;

(b)

(c) fix the times at which periodical sittings of the

Court shall be held;

(d) revoke or vary any proclamation made under this

section.

18. A special sitting of the Court shall be held at any time special sittings.

at which the Attorney General shall direct such a sitting to

be held.

19. If, at the time appointed for any sitting, neither a Adjournment.

Judge nor the Chairman is present, the Clerk may adjourn the Court.

Trial and Procedure.

20. (1) Trials on indictment in Courts of Session shall be Trial.

by jury, and shall be conducted in the same manner as nearly

as may be as trials in the Supreme Court.

(2) The Clerk, or in the absence of the Clerk some per- son appointed by the Judge or Chairman, shall be Clerk of Arraigns:

Provided that, when the Court is held before a Judge, the Associate of the Judge or of any other Judge shall, if the Judge so directs, act as Clerk of Arraigns.

21. (1.) The several lists of persons qualified and liable to serve on juries under the Jury Act, 1898, transmitted from each of two or more Districts which are comprised in a Ses- sions Division shall be transcribed by the Sheriff into one jurors' book for the Division as if it were a Magisterial Dis- trict; and such jurors' book shall be the jurors' book for the summoning of every jury for the trial within the Division in the Supreme Court or in a Court of Session of persons charged upon indictment with offences or for the trial within the Division of issues of fact in any action or proceeding in the Supreme Court or for the assessment of damages, whether before a Judge or before the Sheriff.

divisions.

Jurors' books for

No. 24.] Courts of Session. [1921.

(2.)

In the case of a Division which is constituted of oue District, the jurors' book for the District shall be the jurors' book for the summoning of every jury for any such trial or assessment as aforesaid within the Division.

(3.) Whenever the Governor establishes any Division, he may, by order in council, make such provision as he shall deem expedient for the compilation of the first jurors' book for the Division, and any jurors' book compiled pursuant to such order in council shall be and continue in force for the current year and until the jury lists for the year next ensuing shall be transcribed by the Sheriff into the jurors' book.

Precept for 22.

(1) All jurors for the trial of persons on indictment at any sitting of a Court of Session shall be summoned by virtue of a precept under the hand of the Chairman directed to the summoning officer.

Summoning jury.

(2) Such precept shall have effect as a precept issued under the Jury Act, 1S98, and the Clerk shall be the sum- moning officer: Provided that in the Divisions of East and

West Kimberley the precept shall be mutatis mutandis ac-

cording to the form in the first schedule to the Kimberley General Sessions Act, 1886, and shall be directed to a con- stable, who shall on receipt thereof take such steps as are prescribed by sections six and eleven of that Act.

Subject to section thirty-three of this Act, the pro- 1886, shall apply to and in respect of the East and West Kim- berley Districts when proclaimed as Divisions for the pur- poses of this Act and to and in respect of the Court estab- lished in each Division and the proceedings therein.

Application of the 23.

icimberley District

General Sessions	visions of the Kimberley Districts General Sessions Act,
Act, 1850.

Sheriff to furnish	24.	(1) The Sheriff shall deliver or cause to be delivered
calendar of

Prisoners and to	to the Judge or Chairman presiding in every Court a calendar
bring up prisoners
for trial.	of all prisoners in custody for trial at such Court (whether the prison in which such prisoners are confined is or is not within the Division), and shall bring up or cause to be brought up every such prisoner to the Court, there to be dealt with according to law.
(2) After a prisoner has been brought to the Court, and until he is tried, he may be kept in such custody as the Sheriff may from time to time appoint.

Enforcement of 25.

(1) When the decision of a Court adjudges the pay- ment of a pecuniary penalty or compensation or sum of money

fines, etc.

1921.] Courts of Session. [No. 24.

or costs, then such decision may be enforced in such manner :Ind by such means as a similar decision of Justices is enforce- able, and shall for that purpose be deemed an order made by Justices, and the relative provisions of the Justices Act, 1902-1920, shall apply thereto accordingly.

For the purposes of enforcing such decision the Chairman shall have power to make such subsidiary orders, and to sign and issue such warrants, as Justices might make and sign in a similar case.

(2)

(3) The provisions of this section shall be without preju- dice to any other method of enforcement.

26.    A Court may make and execute such orders, warrants, rower to issue

and other process as may be necessary for enforcing the judg- liZurenits,Tre

ments of the Court or enabling its proceedings to be carried

on.

27. The process and judgments of a Court shall run and ll'fLein esesntrto have

may be executed anywhere in the State, and the Sheriff and theecLtItieroughout

all police officers, prison officials and other officers shall obey, execute, and enforce the judgments and process of any Court so far as they may be respectively required by the Court so to do.

A Court having power to commit a person to prison

may commit him to any prison notwithstanding that such

prison is outside the Court's Division.

Court may commit

to any prison.

28.

(1) A person committed for trial at the Court of any Division may be committed to and held in a prison which is	Court may try
person Imprisoned

29.

Ttggiled

outside the limits of the Division.

(2) It shall be no objection to the trial of any person by a Court that such person is confined or held in a prison out- side the Court's Division.

30. The Judges of the Supreme Court or a majority of Power of Judges to make rules.

them shall have such power of making general rules for regu- lating the practice and procedure of Courts of Session as they have in respect of the Supreme Court.

Miscellaneous.

31.    The Criminal Record Book of every Court of General Records and pro-

or Quarter Sessions which was held at any place within a Teca oa f g to r

Division shall be handed over to the Clerk of the Court of courts of

Session of that Division, and every record or entry therein

No. 24.] Courts of Session. [1921..

of a judgment given or purporting to have been given by or in any such Court as .aforesaid shall be deemed to be the record of a judgment of a duly constituted Court and shall become a record of the said Court of Session, and every judg- ment so recorded shall have effect and may be enforced ac- cordingly, and all proceedings pending in such Court of Gen- eral or Quarter Sessions shall be transferred to and continue in such Court of Session.

Transfer of records	32. When a Court is abolished, all proceedings pending
and proceedings on

abolition of Moat.	therein shall be transferred to and continue in such other Court as the Governor may direct, and all records of the abolished Court shall be transferred to and become records of such other Court.
References to dourts

of Quarter Sessions	33. Any references in any other Acts to Courts of General
to be deemed to be

references to Courts or Quarter Sessions or any officers thereof or the Districts

refe

of "G "°°'	for which the same are established shall hereafter be con- strued as being references to Courts of Sessions and the cor- responding officers thereof and the Divisions for which the same are established respectively.
Pourer of Courts of

Session to deal with	34. (1.) Notwithstanding anything in. the Justices Act,
appease from

ustices.	1902-1920, or any other enactment, an appeal under section
one hundred and eighty-three of that Act may, if the decision appealed from was given in a Sessions Division, be made to the Court of such Division.

(2.)

An order to review a decision under the said Act may, if the decision was given in a Sessions Division, be made returnable before the Court of that Division, • and the appeal shall thereupon be deemed to be transferred to such Court of Session and may be disposed of therein accordingly.

(3.)

Any appeal under the said Act, whether direct or by way of order to review, pending in a Court of Session, may on the order of a Judge be removed into the Supreme Court, and any such appeal pending in the Supreme Court may be removed into any Court of Session.

Such order may be made whenever it appears to the Judge to be just and convenient to make it, and whether the appeal was originally instituted in the Court from which it is proposed to remove it or not.

(4.)

The jurisdiction of a Court of Session under this section shall be exercised by a Judge only.

1921.] Courts of Session. [No. 24.

Section nine of the Circuit Courts Act, 1897, is hereby amended by the substitution, in the third line thereof, of the	Amendment of
section nine of the
Circuit courts Act,
/897.
word "may:' for the word "shall."

35.

No judgment or other proceeding before any Court shall be quashed or set aside or adjudged insufficient for want	Proceedings not to be quashed for want
of form.
of form.

36.

37. When any judgment of a Court of Session comes be- fewer of3roacmegip; ment of g

fore the Supreme Court in any proceeding whatsoever, then by Supreme Court.

if it shall appear that the evidence before the Court of Session was sufficient to support the judgment in substance the Su- preme Court may amend the judgment or any proceeding on which the same is founded by correcting or supplying any error, mistake, or omission therein or therefrom in such man- ner as shall be just, and the judgment shall have effect and be deemed to have had effect as so amended.

38.    (1.) When a person is alleged to be guilty of contempt Contempt of Court.

of any Court committed in the face of the Court or in the hearing of the Court the Court may, by verbal order, direct him to be arrested and brought before it forthwith, or the presiding Judge or Chairman may issue a warrant for the arrest of the accused person.

(2) When the accused person is brought before the Court the Court shall cause him to be informed orally of the nature of the contempt with which he is charged, and shall require him to make his defence to the charge, and shall, after hearing him, proceed, either forthwith or after adjournment, to deter- mine the matter of the charge, and shall make such order for the punishment or discharge of the accused person as is just.

(3) The accused person shall be detained in custody until the charge is disposed of, unless the Court allows him to be discharged on bail.

Provision may be made by rules of court for dealing with contempt in other cases.

(4)

(5)

Punishment for contempt may he by fine or im- prisonment, or both, at the discretion of the Court, but no fine exceeding fifty pounds and no imprisonment exceeding three weeks shall be imposed except by a Judge.

No. 24.] Courts of Session. [1921.

Section 3. FIRST SCHEDULE.

Acts repealed. Extent of Repeal.

9 Via.. No. 4. An Ordinance to make provision for The Whole.

the trial of criminal offences at Albany and other remote Districts of the Colony of Western Australia

12 Vict.. No. 2. An Ordinance to make perpetual The whole.

the above mentioned Ordinance

The Kimberley Districts General Sessions Act. 1886 Section 2 and 3.

The Jury Act, 1898 .„. .... Sections 12 and 17.

section 12. SECOND SCHEDULE.

George the Fifth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India.

To

The Chairman and Justices of the (here insert the name of the Court).

GREETING :

We, being willing for certain reasons that all and singular the indictments

and matters hereinafter mentioned he heard and determined before a Judge of Our Supreme Court of Western Australia, do command you and every of you that you reserve for trial before a Judge such indictments and matters triable or determinable at the sittings of the Court

of Session commencing on the day of

19 as are specified in the indorsement hereon and such other indictments and matters (if any) triable or determinable or which may become triable or determinable at the aforesaid sittings as a Judge of Our said Supreme Court may direct to be so reserved : And We require you to bring and have before any Judge of Our said Soprano Court attending at the said Court of Session during the said sittings thereof all and singular the indictments and matters so reserved as aforesaid and all things touching the same, subject to anj, such exception as a Judge may think CM to direct, in order that the Judge may hear and determine the same and may cause to be done thereon what of right and according to the law of Our State of Western Australia ought to be done.

[LS.]

Witness , Chief Justice

of Western Australia, at Perth, the day of

in the year of our Lord One thousand nine hundred and

Registrar of the Supreme Court

of Western Australia.

(To be indorsed.)

By order of Mr. Justice

At the instance of His Majesty's Attorney General (or as the case may be)

indictments and matters referred to herein.

(Here specify indictments and matters.)