Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)

An Act to amend the Criminal Procedure Act 1986 with respect to committal proceedings before Magistrates, proceedings for summary offences and indictable offences and related matters and to consequentially re-order provisions; and for other purposes.

1Name of Act

This Act is the Criminal Procedure Amendment (Justices and Local Courts) Act 2001.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Criminal Procedure Act 1986 No 209

The Criminal Procedure Act 1986 is amended as set out in Schedule 1.

Schedule 1Amendments

(Section 3)

[1]Long title

Insert “, committal proceedings and proceedings for summary offences” after “District Court”.

[2]Chapter 1, heading

Insert before section 1:

[3]Section 3 Definitions

Omit “(or one or more justices)” from the definition of committal proceedings in section 3 (1).

[4]Section 3 (1)

Insert in alphabetical order:

accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), a barrister or solicitor representing an accused person.

authorised officer means:

• (a)

  a registrar of a court, or

• (b)

  an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act.

bail has the same meaning as it has in the Bail Act 1978.

Chief Magistrate means the Chief Magistrate of the Local Courts appointed under the Local Courts Act 1982.

Court of Coal Mines Regulation means the Court of Coal Mines Regulation established under the Coal Mines Regulation Act 1982.

exercise a function includes perform a duty.

function includes a power, authority or duty.

Industrial Magistrate means an Industrial Magistrate appointed under the Industrial Relations Act 1996.

Industrial Relations Commission in Court Session means the Industrial Relations Commission constituted as referred to in section 151 of the Industrial Relations Act 1996.

Licensing Court means a Licensing Court established under the Liquor Act 1982.

Licensing Magistrate means a licensing magistrate appointed under the Liquor Act 1982.

Local Court means a Local Court established under the Local Courts Act 1982.

Magistrate means a Magistrate appointed under the Local Courts Act 1982.

public officer means any of the following persons, if acting in an official capacity:

• (a)

  an employee in the Public Service or the Police Service,

• (b)

  an officer or employee of a statutory body representing the Crown,

• (c)

  an employee of a council within the meaning of the Local Government Act 1993,

• (d)

  an officer or employee of a rural lands protection board within the meaning of the Rural Lands Protection Act 1998,

• (e)

  the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions,

• (f)

  an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.

Rule Committee for a court means a person or body having power to make rules for the court.

rules means rules made for the purposes of a court to which the relevant provision applies.

Warden’s Court means a Warden’s Court constituted under the Mining Act 1992.

[5]Section 3 (1), definition of “prosecuting authority”

Omit the definition. Insert instead:

prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) a barrister or solicitor representing the prosecutor.

[6]Section 3 (2)

Omit the subsection. Insert instead:

(2)

Notes included in this Act are explanatory notes and do not form part of this Act.

[7]Section 4 Consequences of abolition of office of Clerk of the Peace

Omit the section.

[8]Section 5 Regulations and rules

Renumber as section 4.

[9]New section 4 (2) and (3)

Insert at the end of new section 4:

(2)

The Rule Committee for a court may make rules, not inconsistent with this or any other Act, for or with respect to the following matters:

• (a)

  any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure to be followed to give effect to this Act,

• (b)

  any matter incidental to, or relating to, any such practice or procedure.

(3)

The rules are to be made in accordance with the Act under which the court is constituted.

[10]Section 6 Savings, transitional and other provisions

Omit the section.

[11]Chapter 2, headings

Insert after new section 4:

Chapter 2General provisionsPart 1Offences[12]Sections 7–10

Renumber as sections 5–8.

[13]New section 7

Omit “constituted by a Magistrate sitting alone” from new section 7 (1) and (2) wherever occurring.

[14]Section 51 Name in which prosecutions may be instituted

Renumber as section 9 and transfer to Chapter 2.

[15]Section 59 Indictment of bodies corporate

Renumber as section 10 and transfer to Chapter 2.

[16]Section 12 Certain matters not affected

Omit the section.

[17]New sections 11 and 12

Insert after new section 10:

11Description of offences

The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

12Short description of certain offences(1)

For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.

(2)

This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document.

(3)

Nothing in this section affects any other method of stating or describing an offence.

(4)

Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document.

[18]Section 14 Definition and application

Omit the section.

[19]Section 60 Venue in indictment

Renumber as section 13 and transfer to Chapter 2.

[20]Section 55 Common informer

Renumber as section 14 and transfer to Chapter 2.

[21]Chapter 2, Part 2, heading

Insert after new section 14:

[22]Section 57 Application of Part

Renumber as section 15 and transfer to Chapter 2.

[23]New section 15 (2)

Insert at the end of new section 15:

(2)

In this Division:

indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.

[24]Section 58 Certain defects do not affect indictment

Renumber as section 16 and transfer to Chapter 2.

[25]New section 16

Insert at the end of the section:

(2)

No objection may be taken, or allowed, to any indictment by which summary criminal proceedings are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

• (a)

  any alleged defect in it in substance or in form, or

• (b)

  any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

Note—

An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order.

[26]Sections 61–69

Renumber as sections 17–26 and transfer to Chapter 2.

[27]Section 85 Supreme Court rules may prescribe forms of indictments

Renumber as section 27 and transfer to Chapter 2.

[28]Chapter 2, Part 3, heading

Insert after new section 27:

[29]New sections 28 and 29

Insert after the heading to Part 3, Chapter 2:

28Application of Part and definition(1)

This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.

(2)

In this Part:

Judge includes a Magistrate, a Children’s Court Magistrate, a Licensing Magistrate, a warden of a Warden’s Court, an Industrial Magistrate, the President or a judicial member of the Industrial Relations Commission and any other person of a class prescribed by the regulations for the purposes of this definition.

29When more than one offence may be heard at the same time(1)

A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

• (a)

  the accused person and the prosecutor consent,

• (b)

  the offences arise out of the same set of circumstances,

• (c)

  the offences form or are part of a series of offences of the same or a similar character.

(2)

A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

• (a)

  the accused persons and the prosecutor consent,

• (b)

  the offences arise out of the same set of circumstances,

• (c)

  the offences form or are part of a series of offences of the same or a similar character.

(3)

Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

[30]Section 13 Change of venue

Renumber as section 30 and transfer to Chapter 2.

[31]New section 30

Omit “Supreme Court or District Court”. Insert instead “court”.

[32]New section 30

Omit “Court” where thirdly and fourthly occurring. Insert instead “court”.

[33]Section 95 Abolition of accused person’s right to make unsworn statement or to give unsworn evidence

Renumber as section 31 and transfer to Chapter 2.

[34]Sections 46 and 47

Renumber as sections 32 and 33 and transfer to Chapter 2.

[35]Sections 93 and 94

Renumber as sections 34 and 35 and transfer to Chapter 2.

[36]Section 96 Accused person may be defended by counsel

Omit the section.

[37]New sections 36–41

Insert after new section 35:

36Representation and appearance(1)

A prosecutor or accused person may appear personally or by a barrister or solicitor or other person empowered by an Act or other law to appear for the prosecutor or accused person.

(2)

A prosecutor who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.

37Conduct of case(1)

The prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s barrister or solicitor or any other person permitted to appear for the prosecutor (whether under this or any other Act).

(2)

The accused person’s case may be conducted by the accused person or by the accused person’s barrister or solicitor or any other person permitted to appear for the accused person (whether under this or any other Act).

38Hearing procedures to be as for Supreme Court

In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence.

39Recording of evidence(1)

The evidence of each witness in criminal proceedings must be recorded.

(2)

Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.

40Adjournments generally(1)

A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.

(2)

An adjournment may be in such terms as the court thinks fit.

(3)

A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.

(4)

Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.

41How accused person to be dealt with during adjournment(1)

A court may, if bail is not dispensed with or granted to an accused person for the period of an adjournment, remand the accused person to a correctional centre or other place of security during the adjournment.

(2)

The warrant of commitment may be signed by any Judge or authorised officer.

(3)

A Judge may at any time, by written notice to the parties, shorten or end an adjournment if the accused person is not in custody.

[38]Section 100 Witnesses in mitigation

Renumber as section 42 and transfer to Chapter 2.

[39]Sections 126 and 127

Renumber as sections 43 and 44 and transfer to Chapter 2.

[40]Chapter 3, headings

Insert after new section 44:

Chapter 3Indictable procedurePart 1Preliminary[41]New section 45

Insert after the heading to Part 1 of Chapter 3:

45Application of Chapter and definitions(1)

This Chapter applies to or in respect of proceedings for indictable offences (other than indictable offences being dealt with summarily).

(2)

In this Chapter:

Judge includes a Magistrate.

Magistrate includes a Children’s Court Magistrate, a warden of a Warden’s Court and any other person of a class prescribed for the purposes of this definition.

registrar means, for the purposes of Part 2:

• (a)

  in the case of committal proceedings before a Local Court Magistrate, a registrar of a Local Court, or

• (b)

  in the case of committal proceedings before a Children’s Court Magistrate, the Children’s Registrar appointed under the Children’s Court Act 1987.

[42]Section 11 Jurisdiction of courts

Renumber as section 46 and transfer to Chapter 3.

[43]Chapter 3, Part 2

Insert after new section 46:

Part 2Committal proceedingsDivision 1Commencement of proceedings47Commencement of committal proceedings by court attendance notice(1)

Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.

(2)

A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.

(3)

A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

(4)

Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.

(5)

If an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act.

48Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division.

49Commencement of private prosecutions(1)

If a person other than a police officer or public officer is authorised to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2)

A registrar must not sign a court attendance notice if:

• (a)

  the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

• (b)

  the registrar is of the opinion that the notice is not in the form required by or under this Act, or

• (c)

  the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3)

If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person.

50Form of court attendance notice(1)

A court attendance notice must be in writing and be in the form prescribed by the rules.

(2)

The rules may prescribe one or more forms of court attendance notice.

(3)

A court attendance notice must do the following:

• (a)

  describe the offence,

• (b)

  identify the essential factual elements of the alleged offence,

• (c)

  contain the name of the prosecutor,

• (d)

  require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

• (e)

  state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.

(4)

The rules may prescribe additional matters to be included in court attendance notices.

(5)

A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.

51Court attendance notice to be for one matter only

A court attendance notice may not relate to more than one offence.

52Service of court attendance notices(1)

A court attendance notice issued by a police officer must be served by a police officer in accordance with the rules.

(2)

A court attendance notice issued by a public officer must be served by a police officer, public officer or other person prescribed by the rules, in accordance with the rules.

(3)

A court attendance notice issued by a person other than a police officer or public officer must be served by a person prescribed by the rules in accordance with the rules.

(4)

A copy of a court attendance notice must, except with leave of the court, be filed in the registry of the relevant court not later than 7 days after it is served and must contain an endorsement as to service.

53When proceedings commence(1)

All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.

(2)

A court attendance notice may be filed even though it has not been served if:

• (a)

  a warrant is sought under this Part for the arrest of the accused person, or

• (b)

  the notice is not able to be served, despite reasonable attempts to do so, or

• (c)

  the registrar gives leave to do so after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice.

(3)

Nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date.

54Attendance of accused person at proceedings(1)

A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend before a Magistrate for the hearing of committal proceedings, apply for a warrant to arrest the accused person.

(2)

An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a Magistrate, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.

(3)

The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section.

(4)

A Magistrate or authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:

• (a)

  committing the accused person to a correctional centre or other place of security, and

• (b)

  ordering the accused person to be brought before a Magistrate at the date, time and place specified in the order.

(5)

The Magistrate or authorised officer must give notice of the date, time and place to the prosecutor.

Division 2Committal proceedings generally

55Magistrate to conduct proceedings

Committal proceedings are to be conducted and determined by a Magistrate.

56Committal proceedings to be heard in open court(1)

Committal proceedings are to be heard as if in open court.

(2)

This section is subject to any other Act or law.

57Part does not affect nature of committal proceedings

Nothing in this Part alters the nature of a committal proceeding from that existing immediately before the commencement of this section.

58Place of hearing(1)

A Magistrate may transfer committal proceedings to another Magistrate in another place, if satisfied that:

• (a)

  the principal witnesses to prove the offence live in another place where the offence is alleged to have been committed, or

• (b)

  for any other reason, it is in the interests of justice to do so.

(2)

The Magistrate may, subject to the Bail Act 1978, make orders necessary to enable the accused person to be brought before the other Magistrate and to be dealt with according to law.

59Application of other procedural provisions to committal proceedings

The following provisions of this Act apply, subject to any necessary modifications, to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before a Local Court:

• (a)

  sections 30, 31, 36, 37, 38, 39, 40, 41 and 44,

• (b)

  Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4,

• (c)

  Part 4 (Warrants) of Chapter 4.

60Time for taking prosecution evidence(1)

On the first return date for a court attendance notice in any committal proceedings, or at such later time or times as the Magistrate determines, the Magistrate must set:

• (a)

  the date, time and place for taking the prosecution evidence and the time within which written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), must be served on the accused person, and

• (b)

  the time within which the accused person must serve on the prosecutor any notice requesting the attendance of a person who made a written statement.

Note—

Prosecution evidence is to be given by written statements (see Division 3).

(2)

The registrar must notify the accused person of the date, time and place, and any other time set by the Magistrate, if the accused person is not present.

(3)

A registrar may exercise the Magistrate’s functions under this section.

61Discharge of accused person if prosecutor not present for taking of evidence(1)

If the prosecutor fails to appear on the day and at the time and place set for taking prosecution evidence in any committal proceedings, the Magistrate must:

• (a)

  discharge the accused person as to the offence the subject of the proceedings, or

• (b)

  if the Magistrate thinks it appropriate, adjourn the hearing to a specified time and place.

(2)

The adjournment must not exceed 8 days or such longer period as the accused person may consent to.

(3)

Subsection (2) does not apply if the accused person is refused bail (as referred to in section 25 of the Bail Act 1978).

Note—

Section 25 of the Bail Act 1978 specifies the maximum period for adjournments if bail has been refused.

62Prosecution evidence and initial determination(1)

The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(2)

The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

63Where prosecution evidence sufficient to satisfy jury(1)

If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules.

(2)

The Magistrate must proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4.

(3)

If the accused person is not present, the Magistrate may make a decision under section 64 without complying with subsection (2).

(4)

If the accused person is a corporation and the corporation appears by a representative, the representative may answer the charge on behalf of the corporation.

64Decision about committal

When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

65Committal(1)

If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial.

(2)

In the case of an accused person that is a corporation, the Magistrate may, if of that opinion, make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney General or Director of Public Prosecutions considers proper.

(3)

The making of an order under subsection (2) is taken to be committal for trial.

66Discharge

If the Magistrate is not of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must immediately order the accused person to be discharged in relation to the offence.

67Committal may be set aside by Magistrate(1)

An accused person who was not present and, if not present, was not represented when committed for trial may apply to a Magistrate to have an order for the accused person’s committal for trial set aside.

(2)

The application must be made before the presentation or filing of an indictment against the accused person.

(3)

The Magistrate may set aside the order for committal for trial and any associated warrant to commit the accused person if the Magistrate is satisfied that good and proper reason is shown for the absence of the accused person or a representative of the accused person and that it is in the interests of justice to do so.

68Accused person may waive committal hearing

Despite any other provision of this Part, the Magistrate may, at any time, on the application of the accused person, and with the consent of the prosecutor, commit the accused person for trial.

69Magistrate may end witnesses’ evidence

The Magistrate may end the examination or cross-examination on any particular matter of any witness giving evidence for the prosecution or the defence in any committal proceedings if he or she is satisfied that further examination or cross-examination on the matter will not help the Magistrate to make the initial determination under section 62 or a decision under section 64.

70Certain evidence may not be excluded

A Magistrate in committal proceedings may not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.

Division 3Prosecution evidence71Evidence to be taken in presence of accused person

The accused person must be present when prosecution evidence is taken, unless this Division or any other Act or law permits the evidence to be taken in the accused person’s absence.

72Magistrate may excuse accused person from attending(1)

The Magistrate may excuse the accused person from attending during the taking of prosecution evidence if satisfied that the accused person will be represented by a barrister or solicitor while the evidence is taken or if satisfied that the evidence is not applicable to the accused person.

(2)

A period during which the accused person is so excused is taken to be an adjournment for the purposes of dealing with the accused person.

73Other circumstances in which evidence may be taken in absence of accused person

Evidence may commence or continue to be taken in the absence of an accused person who has not been excused from attending if:

• (a)

  no good and proper reason is shown for the absence of the accused person, and

• (b)

  a copy of the relevant written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them) have been served on the accused person in accordance with this Act and the accused person has been informed of the time set by the Magistrate for taking prosecution evidence.

74Prosecution evidence to be in written form(1)

Evidence for the prosecution must be given by written statements that are admissible as evidence.

(2)

A written statement is not admissible as evidence unless this Division, and any applicable rules or regulations, are complied with in relation to the statement and any associated exhibits or documents.

(3)

A written statement that is inadmissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence.

75Written statements to be served on accused person(1)

The prosecutor must serve or cause to be served on the accused person a copy of the written statements relating to the offence, and copies of any proposed exhibits identified in the statement (or a notice relating to inspection of them), within the time set by the Magistrate under section 60.

(2)

The last date for service set by the Magistrate under that section must be at least 28 days before the date set by the Magistrate for taking the prosecution evidence in the committal proceedings.

(3)

The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.

(4)

A written statement served under this Division must contain a notice explaining the effect of this Division and the accused person’s rights in relation to this Division and prosecution evidence under this Division. The notice must be in the form of words prescribed by the rules.

(5)

Despite subsection (1), the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit.

(6)

However, in that case the prosecutor is:

• (a)

  to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and

• (b)

  to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.

76Recordings of interviews with children(1)

A written statement may be in the form of a transcript of a recording made by an investigating official of an interview with a child, during which the child was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in the Evidence (Children) Act 1997), but only if this section is complied with.

(2)

The copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 75.

(3)

The accused person must be given, in accordance with the regulations under section 12 (2) of the Evidence (Children) Act 1997), a reasonable opportunity to listen to and, in the case of a video recording, to view, the recording.

(4)

Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the child (other than a transcript of the record).

(5)

This section does not affect section 12 (2) of the Evidence (Children) Act 1997.

(6)

In this section:

investigating official has the same meaning as in the Evidence (Children) Act 1997.

Note—

The Evidence (Children) Act 1997 allows children to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the child. Section 12 (2) of that Act provides that such evidence is not to be admitted unless the accused person and his or her lawyer have been given a reasonable opportunity to listen to or view the recording.

77When prosecution evidence may be given in other ways(1)

A prosecutor may apply to have a Magistrate admit prosecution evidence that is not in the form of a written statement admissible in evidence under this Division.

(2)

The Magistrate may admit the evidence if satisfied that:

• (a)

  the written statement was prepared but a copy could not reasonably be served on the accused person, or

• (b)

  any other requirement could not reasonably be complied with, or

• (c)

  the evidence is additional evidence of a person whose written statement has already been admitted in evidence and a further written statement is not appropriate.

(3)

If the Magistrate decides not to admit the evidence, the Magistrate may adjourn the committal proceedings to enable the appropriate written statement to be prepared and served on the accused person, or may proceed without taking the evidence.

(4)

Evidence for the prosecution may be given orally if the prosecutor obtains a subpoena to require a witness to attend to give evidence or to produce documents or things and to give evidence.

(5)

A prosecutor may, subject to this Division, give evidence and may examine and cross-examine the witnesses giving evidence for the prosecutor or for the accused person, respectively.

78Evidentiary effect of written statements(1)

A written statement by any person is, if tendered by the prosecutor, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by the same person.

(2)

Any document or other thing identified in any written statement admitted as evidence under this Division is, if the document or other thing is produced as an exhibit in the committal proceedings, to be treated as if it had been identified before the Magistrate by the person who made the statement.

(3)

This section does not operate to make a written statement admissible if it is not admissible because of another provision of this Division.

79Form and requirements for written statements(1)

A written statement may be in the form of questions and answers.

(2)

A written statement must specify the age of the person who made the statement.

(3)

A written statement must be endorsed in accordance with the rules by the maker of the statement as to the truth of the statement and any other matter required by the rules.

(4)

A written statement or such an endorsement on a statement must be written in a language of which the person who made the statement has a reasonable understanding.

(5)

If the written statement, or part of it, is in a language other than English, a document purporting to contain an English translation of the statement or part must be annexed to the statement.

80Rules relating to written statements(1)

The rules may prescribe requirements for written statements.

(2)

Any such requirements may be of the same or a different kind to the requirements contained in this Division.

(3)

The rules may provide that a requirement prescribed under subsection (2) may not be dispensed with by a Magistrate.

81Written statement must be signed by its maker or another person on the maker’s behalf(1)

A written statement must be signed by the person who made the statement.

(2)

If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement.

(3)

The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.

82Written statement must be signed by witness

A written statement must be signed by another person as a witness to the signing of the statement by the person who made it or as a witness to the signing by another person on the maker’s behalf (if applicable).

83Presumptions about written statements(1)

In any proceedings it is presumed, if there is no evidence to the contrary, that the age specified in the written statement is in fact the age of the person who made the statement at the time the statement was made.

(2)

In any proceedings it is presumed, if there is no evidence to the contrary, that the language in which a statement or an endorsement is written is a language of which the person who made the statement or endorsement has a reasonable understanding.

(3)

In any proceedings it is presumed, if there is no evidence to the contrary, that the English translation of the statement or part statement is an accurate translation of the statement or part.

84Presumptions about signatures(1)

In any proceedings it is presumed, if there is no evidence to the contrary, that a signature on a written statement purporting or appearing to be the signature of the person who made it, or a person who signed on behalf of the maker, or a witness to the signing of the statement, is the signature of the person concerned.

(2)

In any proceedings it is presumed, if there is no evidence to the contrary, that a statement purporting or appearing to be signed by another person on behalf of the person who made the statement in accordance with this Division has been so signed.

85False statements(1)

A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter:

• (a)

  that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and

• (b)

  that was inserted or caused to be inserted by the person in the statement.

Maximum penalty:

• (a)

  If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.

• (b)

  If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.

(2)

Chapter 5 of this Act (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.

86Evidence not to be admitted

The Magistrate must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence in committal proceedings if, in relation to that evidence, this Division or any rules made under this Division, have not been complied with by the prosecutor.

87Inadmissible written statements or parts of statements to be rejected(1)

The Magistrate must reject a written statement, or any part of a written statement, tendered in committal proceedings if the statement or part is inadmissible because of this Division.

(2)

The Magistrate must record the rejection of a part of a written statement and identify in the record the part rejected.

(3)

The rules may prescribe the manner of identifying a part of a written statement that has been rejected.

88Death of person who made statement(1)

A written statement is not admissible if, on evidence produced during committal proceedings, the Magistrate is satisfied that the person who made the statement is dead.

(2)

If it is found after a written statement is admitted in evidence in committal proceedings that the person who made the statement died before the statement was admitted, the statement is taken not to have been admitted in evidence.

89Notice of rights to unrepresented accused person(1)

In any committal proceedings in which an accused person is not represented by a barrister or a solicitor, a written statement is not admissible unless the Magistrate:

• (a)

  has explained to the accused person the effect of this Division and the accused person’s rights in relation to this Division, and

• (b)

  is satisfied that the accused person understands his or her rights under this Division.

(2)

The explanation by the Magistrate must be in the form of words prescribed by the rules.

90Magistrate may set aside requirements for written statements(1)

In any committal proceedings, the Magistrate may dispense with all or any of the following requirements of this Act relating to written statements or exhibits:

• (a)

  service of documents on the accused person, as required by section 75,

• (b)

  provision to the accused person of a reasonable opportunity to inspect proposed exhibits,

• (c)

  specification of the age of the person who made a statement,

• (d)

  any requirement specified by the regulations, if the rules do not prohibit the Magistrate from dispensing with the requirement.

(2)

A requirement may be dispensed with under this section only on an application by the accused person or with the consent of the accused person.

91Witness may be directed to attend(1)

The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement tendered as evidence under this Division. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor.

(2)

The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.

(3)

In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. A direction may not be given if the written statement has already been admitted in evidence.

(4)

The written statement is not admissible in evidence in the proceedings after the direction is given unless the Magistrate withdraws the direction. This does not affect a statement admitted in evidence before a direction is given.

(5)

A direction given on the application of the accused person or the prosecutor may be withdrawn only:

• (a)

  on the application, or with the consent, of the applicant, or

• (b)

  if the applicant fails to appear, on the application of the other party.

(6)

The regulations may make provision for or with respect to the determination of substantial reasons under subsection (3).

92When accused person may apply to have witness attend(1)

The accused person in any committal proceedings may not apply for a direction under section 91 unless the accused person has served on the prosecutor a notice requesting the attendance at the proceedings of the person who made the statement concerned.

(2)

The notice must be served within the time set by the Magistrate.

(3)

The last date for service of the notice set by the Magistrate must be at least 14 days before the time set by the Magistrate for taking the prosecution evidence in the committal proceedings.

(4)

The Magistrate may specify a later date with the consent of the accused person or if the circumstances of the case require it.

93Victim witnesses generally not to be cross-examined(1)

Despite section 91, in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement unless the Magistrate is of the opinion that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.

(2)

The regulations may make provision for or with respect to the determination of any such special reasons.

94Meaning of “offence involving violence”(1)

The following offences are offences involving violence for the purposes of section 93:

• (a)

  a prescribed sexual offence,

• (b)

  an offence under sections 27–30 of the Crimes Act 1900 (attempts to murder),

• (c)

  an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest),

• (d)

  an offence under section 35 (b) of the Crimes Act 1900 (infliction of grievous bodily harm),

• (e)

  an offence under sections 86–91 of the Crimes Act 1900 (abduction or kidnapping),

• (f)

  an offence under sections 94–98 of the Crimes Act 1900 (robbery),

• (g)

  an offence that, at the time it was committed, was an offence involving violence for the purposes of section 93,

• (h)

  any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section.

(2)

An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of section 93.

95Use of previous statements in cases involving prescribed sexual offences(1)

In proceedings in relation to a prescribed sexual offence, if:

• (a)

  the offence is alleged to have been committed in the course of a connected set of circumstances in which another prescribed sexual offence is alleged to have been committed, and

• (b)

  the accused person has been committed for trial in respect of, or has been convicted of, the other offence, and

• (c)

  each of the offences is alleged to have been committed on the same person,

transcripts of evidence of the person on whom the offence is alleged to have been committed at the proceedings in which the accused person was committed or tried in respect of the other offence may, in so far as they are relevant to the offence the subject of the hearing, be included in a brief of evidence.

(2)

A copy of the transcript must be certified by a registrar in accordance with the rules and served on the accused person in accordance with section 183.

(3)

A brief of evidence that includes a transcript of a deposition of a person is not required also to include a written statement from the person concerned in respect of any matter covered by the transcript.

(4)

The transcript of the deposition is taken, for the purposes of this Act, to be a written statement taken from the person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence.

96Application of Division to proceedings where there is more than one accused person

In committal proceedings in which there are 2 or more accused persons, this Division applies:

• (a)

  in relation to each accused person to the extent only that a written statement is sought to be admitted as evidence against that accused person, and

• (b)

  in relation to each such accused person as if that accused person were the only accused person.

Division 4Defence evidence97Evidence for accused person(1)

The Magistrate must give the accused person an opportunity to give evidence in the committal proceedings or to call any witness on the accused person’s behalf.

(2)

An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or for the prosecution, respectively.

Note—

For other provisions applying to evidence in committal proceedings, see the Evidence Act 1995.

98Other evidence about accused person

Nothing in this Part prevents the prosecutor from giving in evidence any admission or confession or other statement by the accused person, made at any time, which is by law admissible as evidence against the accused person.

Division 5Procedure if accused person pleads guilty99Effect of guilty plea(1)

An accused person may at any time in committal proceedings plead guilty to the offence concerned. If a person pleads guilty, the provisions of this Division apply.

(2)

Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in the proceedings.

100Guilty plea may be accepted or rejected

The Magistrate may accept or reject the guilty plea.

101Effect of rejection of guilty plea

If the guilty plea is rejected, the committal proceedings continue as if the accused person had not pleaded guilty.

102Effect of acceptance of guilty plea

If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court, to be dealt with in accordance with this Division.

103Procedure applicable after committal for trial(1)

All proceedings (whether under this or any other Act) relating to a committal for trial apply, so far as practicable, to a committal of an accused person after the guilty plea is accepted.

(2)

For the purposes of the venue or change of venue of consequent proceedings, a committal is taken to be a committal for trial.

104Higher court may refer accused person back to Magistrate(1)

A Judge of the District Court or the Supreme Court before whom an accused person is brought under this Division may order that the committal proceedings be continued before a Magistrate if:

• (a)

  it appears to the Judge from the information or evidence given to or before the Judge that the facts in respect of which the court attendance notice was issued do not support the offence to which the accused person pleaded guilty, or

• (b)

  the prosecutor requests the order be made, or

• (c)

  for any other reason, the Judge thinks fit to do so.

(2)

On the resumption of the committal proceedings, the committal proceedings continue as if the person had not pleaded guilty.

105Disposal of proceedings by higher court(1)

The District Court or the Supreme Court may proceed to sentence or otherwise deal with an accused person brought before the Court under this Division as if the accused person had on arraignment at any sittings of the Court pleaded guilty to the offence on an indictment filed or presented by the Attorney General or the Director of Public Prosecutions.

(2)

An accused person who is sentenced or otherwise dealt with under this section is for the purposes of any Act or law (whether enacted before or after the commencement of this section) taken to be convicted on indictment of the offence concerned.

106Change to not guilty plea in higher court(1)

If an accused person brought before the District Court or the Supreme Court under this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence.

(2)

On the direction being given, the accused person is taken to have been committed for trial for the offence. The Judge may make the same orders and do the same things (including dealing with the accused person) as a Magistrate can on committing an accused person for trial.

(3)

The Judge may give directions as to matters preliminary to the trial as the Judge thinks just.

(4)

A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 104.

(5)

Despite subsection (1), the Judge may make an order under section 104 instead of giving a direction under subsection (1), if of the opinion that such an order should be made.

107Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken(1)

If a guilty plea is accepted under this Division, the Attorney General or the Director of Public Prosecutions may, at their discretion, direct in writing that no further proceedings be taken against the accused person under this Division for the offence concerned.

(2)

No further proceedings may be taken against the accused person under this Division for the offence if a direction is given.

Note—

Section 44 requires the release of the accused person once a certificate is delivered to the Supreme Court after a direction is given.

108Meaning of “accused person”

In this Division:

accused person includes a person who has been committed for sentence to the District Court or Supreme Court.

Division 6Procedure after committal for trial or sentence109Accused person to be committed to correctional centre(1)

An accused person who is committed for trial or sentence in any committal proceedings must be committed to a correctional centre by the Magistrate until the sittings of the court at which the person is to be tried or dealt with or until the accused person is otherwise released by operation of law.

(2)

A Magistrate may order the issue of a warrant under this section.

(3)

An authorised officer may, for the purposes of this section, issue a warrant to arrest the accused person.

(4)

An authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may issue a warrant:

• (a)

  committing the accused person to a correctional centre or other place of security, and

• (b)

  ordering the accused person to be brought before a court at the time and place specified in the order.

Note—

Part 4 of Chapter 4 sets out procedures for arrest warrants and warrants of commitment generally.

The Bail Act 1978 provides for the circumstances when such a person must or may be granted bail rather than be held in prison.

110Bail undertakings and conditions to be notified

If an accused person committed to a correctional centre on committal for trial or sentence is released on bail, the person to whom the bail undertaking is given must transmit to the registrar of the relevant court:

• (a)

  the bail undertaking, and

• (b)

  any cash or other thing deposited under the bail undertaking, and

• (c)

  the instrument by which any bail conditions were imposed on the grant of bail, and

• (d)

  any agreement or acknowledgment entered into or made pursuant to any such bail condition.

111Papers to be sent to officer of higher court(1)

The registrar must, as soon as possible after the end of committal proceedings, give to the appropriate officer of the court to which an accused person is committed for trial or sentence the documents required by the rules.

(2)

The appropriate officer if an accused person is committed to the Supreme Court is the registrar of the Criminal Division of the Supreme Court.

(3)

The appropriate officer if an accused person is committed to the District Court is a registrar of the District Court.

(4)

The appropriate officer must deliver the documents to the proper officer of the Court at which the trial is to be held or the accused person dealt with, if the Judge presiding so directs.

112Responsibilities of appropriate officer

After the documents are transmitted and before the day of trial or the day on which the accused person is to be dealt with, the appropriate officer has, in relation to the documents, the same duties and is subject to the same liabilities as the Magistrate would have or be subject to before the transmission in relation to an order in the nature of certiorari or a rule or order instead of certiorari directed to the Magistrate.

113Copies of trial papers to be given to Director of Public Prosecutions(1)

The appropriate officer must, as soon as practicable after receiving a document transmitted by the registrar after an accused person is committed for trial or sentence, transmit a copy of the document to the Director of Public Prosecutions.

(2)

The copy must be transmitted by the most convenient method, having regard to the necessity to maintain the security of the document.

114Copies of transcripts of evidence and witnesses’ statements(1)

An accused person who is committed for trial or sentence is entitled to obtain one copy of the transcript of evidence taken at the committal proceedings, and any written statements tendered at the proceedings.

(2)

The rules may make provision for or with respect to the provision of a copy to the person and fees for the provision of a copy.

115Meaning of “accused person”

In this Division:

accused person includes a person who has been committed for trial or sentence to the District Court or Supreme Court.

Division 7Costs116When costs may be awarded to accused persons(1)

A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the registrar, for payment to the accused person, if:

• (a)

  the accused person is discharged as to the subject-matter of the offence or the matter is withdrawn, or

• (b)

  the accused person is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice.

(2)

The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3)

The order must specify the amount of professional costs payable.

(4)

If the accused person is discharged, the order for costs may form part of the order discharging the accused person.

(5)

In this section:

professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Magistrate.

117Limit on circumstances when costs may be awarded against a public officer(1)

Professional costs are not to be awarded in favour of an accused person in any committal proceedings unless the Magistrate is satisfied as to any one or more of the following:

• (a)

  that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

• (b)

  that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

• (c)

  that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

• (d)

  that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs.

(2)

This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

(3)

In this section:

professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Magistrate.

118Costs on adjournment(1)

A Magistrate may in any committal proceedings, at his or her discretion or on the application of the prosecutor or an accused person, order that one party pay costs if the matter is adjourned.

(2)

An order may be made only if the Magistrate is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delay of the party against whom the order is made.

(3)

An order may be made whatever the result of the proceedings.

119Content of costs orders

The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

120Enforcement of costs orders

An order made by a Magistrate under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.

[44]Chapter 3, Part 3, Division 1, headings

Insert after new section 120:

Part 3Trial proceduresDivision 1Listing[45]Sections 40, 41, 43, 44 and 45

Renumber as sections 121, 122, 123, 124 and 125 and transfer to Chapter 3.

[46]New section 121

Omit “Justices Act 1902” from the definition of criminal proceedings.

Insert instead “Crimes (Local Courts Appeal and Review) Act 2001”.

[47]New section 124

Omit “prosecuting authorities”. Insert instead “prosecutors”.

[48]New section 125

Omit “Part” wherever occurring. Insert instead “Division”.

[49]New section 125 (1) (a)

Omit “prosecuting authority”. Insert instead “prosecutor”.

[50]Chapter 3, Part 3, Division 2, heading

Insert after new section 125:

[51]Section 50 Signing of indictments

Renumber as section 126 and transfer to Chapter 3.

[52]Section 53A Manner of presenting indictments

Renumber as section 127 and transfer to Chapter 3.

[53]Section 52 Directions as to indictments to be presented in District Court

Renumber as section 128 and transfer to Chapter 3.

[54]New section 128 (1)

Omit “prosecuting authorities”. Insert instead “prosecutors”.

Schedule 3Provisions relating to offences

(Section 316)

Part 1Contempt[146]Section 53 Institution of contempt proceedings

Renumber as clause 1 and transfer to Schedule 3.

[147]Schedule 3, new clause 1 (2)

Omit “subsection” wherever occurring. Insert instead “subclause”.

[148]Schedule 3, Part 2, heading

Insert after new clause 1:

[149]Sections 128–132

Renumber as clauses 2–6 and transfer to Schedule 3.

[150]Schedule 3, new clause 3 (1) (a)

Omit “one or more justice or justices”.

Insert instead “a Magistrate or an authorised officer”.

[151]Schedule 3, new clause 3 (1) (b)

Omit “apprehension”. Insert instead “arrest”.

[152]Schedule 3, Part 3, heading

Insert after new clause 6:

[153]Sections 74–79

Renumber as clauses 7–12 and transfer to Schedule 3.

[154]Schedule 3, new clause 7 (2)

Omit “prosecuting authority”. Insert instead “prosecutor”.

[155]Schedule 3, Part 4, heading

Insert after new clause 12:

[156]Sections 70–73

Renumber as clauses 13–16 and transfer to Schedule 3.

[157]Section 122 On trial for perjury: presumption of authority to administer oath

Renumber as clause 17 and transfer to Schedule 3.

[158]Sections 80–84

Renumber as clauses 18–22 and transfer to Schedule 3.

[159]Schedule 3, new clause 21 (1)

Omit “section”. Insert instead “clause”.

[160]Schedule 3, new clause 21 (6)

Omit “prosecuting authority”. Insert instead “prosecutor”.

[161]New clause 22 (3), Schedule 3

Omit “subsection”. Insert instead “subclause”.