Justices Act 1902 (NSW)
An Act to consolidate the Statutes relating to Magistrates and Justices of the Peace, to proceedings before and in the nature of appeal from and to proceedings against such Magistrates and Justices; and to other matters in connection therewith.
This Act may be cited as the Justices Act 1902.
The Acts mentioned in the First Schedule hereto are, to the extent therein expressed, hereby repealed, provided that no such repeal shall invalidate or affect any proceeding, act, or thing done or commenced before the passing of this Act.
All proceedings initiated before the passing of this Act shall be carried on as far as practicable according to the provisions of this Act, and, subject thereto, according to the provisions of the said Acts, which for that purpose shall be deemed to continue in force notwithstanding the repeal thereof.
All persons lawfully in custody, or bound by recognizances, at the time of the passing of this Act, under the provisions of any Act hereby repealed, shall be deemed to be in lawful custody, or to be so bound as aforesaid, under the provisions of this Act, and may be dealt with accordingly.
All persons appointed under any Act hereby repealed, and holding office at the time of the passing of this Act, shall be deemed to have been appointed under this Act.
All proclamations, notifications, rules, regulations and forms made or prescribed under the authority of any Act hereby repealed, and being in force at the time of the passing of this Act, shall, unless expressly altered by the provisions of this Act, be deemed to have been made or prescribed under the authority of this Act.
In this Act, unless the context or subject-matter otherwise indicates or requires:
(a) a Magistrate or a Children’s Magistrate, or
(b) a Justice employed in the Attorney General’s Department, or
(c) a Justice employed in a prescribed office.
(a) Any reference in sections 35, 39, 40, 47, 73, 115, 118 and 119 to “deposition” or “depositions” shall, where the deposition or depositions was or were recorded by any of the means (other than writing) referred to in section 36 (4) or 70 (4), be read and construed as a reference to a transcript, certified in the manner prescribed, of the deposition or depositions as so recorded.
(b) The reference in section 126 to “deposition” where firstly and lastly occurring shall, where the deposition was recorded by any of the means (other than writing) referred to in section 70 (4), be read and construed as a reference to a transcript, certified in the manner prescribed, of the deposition as so recorded.
(c) Except in so far as the context or subject-matter otherwise indicates or requires, any reference in this Act (except in section 36 and in any other prescribed provision):
(i) to a deposition includes a reference to a written statement, and
(ii) to the taking of a deposition includes a reference to the admission of a written statement,
admitted as evidence under section 48A.
Where the expression “accused person” is used in a provision of this Act, it refers to a person in his or her capacity as an accused person in relation only to the offence to or with which that provision relates or is connected.
(Repealed)
Notes included in this Act do not form part of this Act.
(Repealed)
(Repealed)
Every Magistrate may do alone any act and exercise alone any power or jurisdiction which:
(a) under any law in force at the commencement of the Justices (Amendment) Act 1947 may be done or exercised by any Police Magistrate, Justice or Justices, howsoever sitting and adjudicating or acting, or
(b) under any law not containing an express enactment to the contrary made after such commencement may be done or exercised by any Justice or Justices howsoever sitting and adjudicating or acting.
And all the provisions of this or any other Act auxiliary to the jurisdiction of such Justice or Justices shall be applicable also to the jurisdiction of a Magistrate.
Such authority and jurisdiction shall extend and apply to cases where the act or jurisdiction is, or hereafter may be, required to be done or exercised by a Justice or Justices sitting or acting as a Local Court held:
(a) at a particular place, or
(b) within a particular district,
being a place or district, as the case may be, appointed under section 6 (1) of the Local Courts Act 1982 as well as to cases where the act or jurisdiction is not so required to be done or exercised.
Any enactment authorising or requiring persons to be summoned or to appear by or before a Justice or Justices sitting or acting as a Local Court held as referred to in subsection (2) shall in the like cases be deemed to authorise or require persons to be summoned or to appear before a Magistrate sitting or acting as that Local Court.
The provisions and requirements of every statute, regulation, general rule, or order of any Court, by which any liability, duty, obligation, or authority in respect of any case stated, depositions, conviction, order, warrant, or other document, instrument, matter, or proceeding of what kind soever is now or may hereafter be cast upon, incurred, or exercisable by any one or more than one Justice, shall be equally applicable to every Magistrate.
(Repealed)
No Justice other than a Magistrate shall:
(a) within the metropolitan police district or the police district of Newcastle, or
(b) within any police district or part thereof named or described by the Governor from time to time by proclamation published in the Gazette,
sit either alone or with other Justices at any Local Court for the purpose of adjudicating in a summary way in respect of any information, complaint, or matter, or of making any order or of deciding any matter on appeal which by law Justices are empowered to hear and determine, deal with, or decide:
Provided that nothing in this Part shall abridge or prejudice the ministerial powers of Justices in committal cases, or the powers of Justices to take any information or issue any summons or grant, issue, or endorse any warrant in any case in which Justices might by law have exercised any such power if this section had not been enacted.
Provided further that nothing in this Part shall abridge or prejudice the powers of any Justice relating to bail.
Any proclamation made pursuant to paragraph (b) of subsection (1) may be revoked by a subsequent proclamation published in the Gazette. Any proclamation so revoked shall cease to have effect.
(Repealed)
All the provisions of this Act and of all other Acts relating to Justices and their duties, so far as the same may be applicable, shall be applicable to Magistrates.
(Repealed)
In any police district for which a Clerk of the Local Court is not appointed, a Magistrate may discharge all or any of the duties which now do or may hereafter pertain to the office of Clerk of the Local Court; and all acts done by such Magistrate in pursuance hereof shall be as valid and effectual in law as if done by such clerk, and all notices required to be given to such clerk, and all other matters and things required to be done with, or in reference to, such clerk, may be given to, or done with, or in reference to, such Magistrate, and shall have the like force and effect.
No Justice shall be incapable of acting as a Justice at any Local Court on the trial of any person for an offence under any Act or by-law to be put in execution by a municipal corporation, or by trustees, or by any other local authority, by reason only of being a ratepayer or one of a class of persons who are liable in common with others to contribute to, or who may be benefited by, any fund to the account of which any penalty or any portion thereof payable in respect of such offence is directed to be carried, or of which it will form part, or who are liable to contribute to any rate or expenses in diminution of which such penalty or any portion thereof will go:
Provided that no Justice, being a mayor, or a councillor, or officer of any municipality, shall act as aforesaid in any case affecting such municipality or touching any matter in which the municipality shall as such be directly or indirectly interested.
In all cases every act done or purporting to have been done by or before any Justice shall be taken to have been within his or her jurisdiction, without an allegation to that effect, until the contrary is shown.
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or other indictable offence:
(a) in New South Wales,
(b) on the high seas, or in any creek, harbour, or other place in which the Admiralty of England have or claim to have jurisdiction,
(c) on land beyond the seas, when for such offence an indictment may legally be preferred in New South Wales.
Any such information may be by parol and without any oath unless it is intended that a warrant in the first instance shall be issued as hereinafter provided, in which case the information shall be laid in writing, and the matter thereof substantiated by the oath of the informant or of a witness.
Without limiting the operation of this Subdivision and Subdivision 2, an information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if:
(a) the person has been charged with an offence and served with a copy of a charge sheet containing details of the offence, and
(b) the person has been subsequently released on bail, and
(c) a copy of the charge sheet or other document setting out the details of the offence, and a bail undertaking under the Bail Act 1978, have been lodged in respect of the person with the clerk of a Local Court or given to a Magistrate.
For the purposes of this Act:
(a) the copy of the charge sheet or other document setting out the details of the offence lodged with the clerk of a Local Court or given to a Magistrate is taken to be an information that is not substantiated by the oath of the informant or witness, and
(b) the bail undertaking is taken to be a summons.
Whenever any such information is laid before a Justice against any person and the matter thereof substantiated by the oath of the informant or a witness, such Justice may, if such person is not then in custody, issue his or her warrant in the first instance for the apprehension of such person.
Whenever an information in respect of an indictable offence other than one within paragraphs (b) and (c) of section 21 is laid before a Justice against any person as hereinbefore provided, such Justice may, if such person is not then in custody, issue his or her summons for the appearance of such person:
Provided that nothing herein contained shall prevent any Justice from issuing his or her warrant before or after the time appointed in a summons for the appearance of a defendant against whom an information for an indictable offence has been duly laid and substantiated as hereinbefore provided.
Where an indictment has been filed in the Supreme Court or the District Court against any person then at large, the proper officer at such Court shall at any time during the sittings of such Court if the person so indicted fails to appear and plead to such indictment, upon application by or on behalf of the prosecutor, grant to the prosecutor or person applying on his or her behalf a certificate that such indictment has been filed.
Upon production of such certificate to any Justice such Justice shall:
(a) in every case where the person so indicted is, at the time of the application for the said certificate and of such production thereof, confined in a correctional centre for any other offence than that charged in the said indictment, upon proof upon oath that the person so confined in a correctional centre is the person charged and named in such indictment, issue his or her warrant directed to the gaoler of the correctional centre in which such person is so confined, commanding the gaoler to detain such person in his or her custody until, by His Majesty’s writ of habeas corpus, the person is removed therefrom for the purpose of being tried upon the said indictment, or until the person is otherwise removed or discharged out of custody by due course of law,
(b) in other cases issue his or her warrant to apprehend the person so indicted, and to cause the person to be brought before the Justice or any other Justice to be dealt with according to law, and that Justice or any other Justice, when any person apprehended under such warrant is brought before the Justice, shall, upon proof upon oath that such person is the person charged and named in such indictment, and without further inquiry, commit the person for trial.
(Repealed)
Every summons for the appearance of any person shall:
(a) be under the hand and seal of the Justice issuing it, and
(b) be directed to such person, and
(c) state shortly the matter of the information, and
(d) require such person to appear at a certain time and place before such Justice as shall then be there to answer to the information and be dealt with according to law.
Every summons shall be served by a constable upon the person to whom it is directed by delivering it to the person personally, or if the person cannot conveniently be met with then by leaving it with some person for the person at his or her last or most usual place of abode.
Service of a summons in manner aforesaid may be proved by the oath of the police constable who served it, or by affidavit or otherwise.
Every warrant for the apprehension of any person shall:
(a) be under the hand and seal of the Justice issuing it, and
(b) be directed to a police constable or other person by name; or generally to the senior officer of police of the district or place where it is to be executed, or to such officer of police and to all other police constables in New South Wales, or generally to all police constables in New South Wales, and
(c) name or otherwise describe the person whose appearance is required, and
(d) state shortly the matter of the information, and
(e) order the police constable or person to whom it is directed to apprehend the person whose appearance is required, and cause the person to be brought before such Justice, or any other Justice, to answer to the information and be dealt with according to law.
(i) It shall not be necessary to make any such warrant for the apprehension of a defendant returnable at any particular time, but every such warrant may continue in force till it is executed.
(ii) Every other such warrant shall be returnable at a time and place to be stated therein.
Every such warrant may be executed by apprehending the person against whom it is directed at any place in New South Wales.
Any such warrant may be issued on a Sunday as well as on any other day.
No objection shall be taken or allowed to any information, summons, or warrant in respect of:
(a) any alleged defect therein in substance or in form, or of
(b) any variance between any information, summons, or warrant and the evidence adduced in support of the information at the hearing.
Where in the case of a summons or warrant any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may, at the request of the defendant, adjourn the hearing of the case to some future day.
Wherever any person for whose appearance a summons has been issued does not appear at the time and place appointed thereby, any Justice may, upon proof of the due service of the summons upon such person, issue his or her warrant for the apprehension of such person.
If an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.
The Justice or Justices before whom a person is brought after having been apprehended under a warrant referred to in subsection (1) or (1A):
(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and
(b) must order the person to be brought before the Justice or Justices at such time and place as is specified in the order, and
(c) must give due notice to the informant or complainant of the time and place so specified.
A warrant under this section may be issued by any Justice.
(Repealed)
Subject to any Act or other law, the room or place in which a Justice or Justices takes or take the examination and statements in any case where a person is charged with an indictable offence shall be deemed to be an open and public court, to which all persons may have access so far as that room or place can conveniently contain them.
The Justice or Justices before whom a defendant appears or is brought may adjourn the hearing of any information in any case, whether before or during the hearing, where from the absence of witnesses or from any reasonable cause it is necessary or advisable to defer the hearing or further hearing.
Such adjournment shall be to a time and place to be appointed by the Justice or Justices adjourning the hearing:
Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978).
Where the hearing is adjourned under section 30, section 33, or section 41, the Justice or Justices may, subject to the Bail Act 1978:
(a) remand the defendant to a correctional centre, police station or court cell complex during such adjournment, or
(b) if the adjournment is for a period not exceeding three clear days, verbally order any constable or other person by name to keep the defendant in his or her custody, and bring the defendant before the Justice or Justices acting at the time and place to which the hearing is adjourned.
(c) (Repealed)
Provided that where the defendant remains in custody any Justice or Justices may order the defendant to be brought before the Justice or Justices or any other Justice or Justices at any time before the expiration of the time for which the hearing was adjourned, and the gaoler or officer in whose custody the defendant then is shall duly obey such order.
Where a person is remanded to a correctional centre, police station or court cell complex pursuant to paragraph (a) of subsection (1), the warrant so remanding such person may be signed by any Justice.
The Justice or Justices before whom a defendant appears or is brought, on being informed that the principal witnesses to prove the offence with which the defendant is charged reside in some other place where the offence is alleged to have been committed, may, subject to the Bail Act 1978, order the defendant to be conveyed to such place and taken before a Justice or Justices to further answer to the charge, and to be further dealt with according to law.
The warrant necessary to carry the abovementioned order into effect may be signed by any Justice.
In every such case the Justice or Justices before whom the defendant originally appears or is brought shall cause the information and, if the Justice or Justices so directs or direct, the depositions taken before the Justice or Justices to be delivered to the Justice or Justices before whom the defendant is taken under such warrant.
Every witness shall have the usual oath administered to him or her before he or she is examined.
The prosecutor may himself or herself, or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her.
The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively.
The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed.
Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by him or her and by the Justice or Justices.
(Repealed)
Where a person is committed for trial the committing Justice or Justices shall, as soon as possible after the conclusion of the case, transmit to the proper office the information (if any), the depositions of the witnesses, the certificate mentioned in section 36 of the Criminal Procedure Act 1986 (if any), the statement of the defendant, and if the defendant is released on bail, his or her bail undertaking, the instrument by which any bail conditions were imposed on the grant of bail and any agreement or acknowledgment entered into or made pursuant to any such condition.
The appropriate officer shall, after such transmission and before the day of trial, have the same duties and be subject to the same liabilities in respect of the said several documents upon a certiorari directed to the appropriate officer or upon a rule or order directed to the appropriate officer in lieu of that writ as the Justice or Justices would have had and been subject to, upon a certiorari to the Justice or Justices if such documents had not been so transmitted.
The appropriate officer shall at any time after the opening of the Court, at the sittings at which the trial is to be had, deliver the said several documents, or any of them, to the proper officer of the Court, if and when the Judge presiding thereat so directs.
A copy of the said several documents transmitted to the appropriate officer shall, subject to and in accordance with the regulations, be transmitted by the officer to the Director of Public Prosecutions.
In this section,
(a) the Supreme Court—means the registrar of the Criminal Division of the Supreme Court,
(b) the District Court—means the registrar of the District Court for the nearest proclaimed place,
or such officer as may be prescribed by the regulations.
A person charged upon an information under section 21 and committed for trial may obtain from the appropriate officer, free of charge, one copy of the depositions taken at the hearing of the matter of the information.
If a person has been charged upon an information under section 21 (whether or not the person has been committed for trial), any person is, on showing sufficient cause to the appropriate officer or the clerk of the Justice or Justices who heard the matter of the information, entitled to demand and have copies of the depositions.
Subject to this section, the copies shall be supplied by the appropriate officer or clerk on payment of a fee calculated at the rate prescribed by the regulations.
In this section,
Whenever a person charged with an offence upon an information under section 21 appears or is brought before a Justice or Justices voluntarily upon summons or upon apprehension under or without warrant or in custody for such or any other offence, the Justice or Justices shall, if the person so charged has been provided with a written copy of the charges against the person, take the evidence for the prosecution in manner hereinbefore provided.
If the informant, having received notice of the time and place, does not appear in person or by his or her counsel or attorney when the defendant appears or is brought, as provided in subsection (1), before the Justice or Justices, the Justice or Justices shall discharge the defendant as to the information under inquiry, unless for some reason the Justice or Justices think it proper to adjourn the hearing to an appointed time and place:
Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978).
(a) Subject to this section, the evidence for the prosecution shall be taken in the presence of the defendant.
(b) Upon application made by a defendant appearing before the court or made by his or her counsel or attorney on his or her behalf, the Justice or Justices may excuse the defendant from attendance during the taking of any evidence for the prosecution, if the Justice or Justices is or are satisfied that during his or her absence the defendant will be represented during the taking of that evidence by counsel or attorney.
(c) Any period during which a defendant is excused, pursuant to paragraph (b), from attendance during the taking of any evidence shall, in relation to the defendant so excused, be deemed to be an adjournment for the purposes of section 34.
(d) Where, having appeared or been brought before a Justice or Justices as referred to in subsection (1), a person so referred to subsequently fails to appear or be brought before the Justice or Justices, the taking of evidence for the prosecution may, notwithstanding paragraph (a), commence or continue in the absence of the defendant if no good and proper reason is shown for the absence of the defendant.
(e) The evidence for the prosecution shall not be taken under paragraph (d) in the absence of a defendant unless:
(i) the defendant has been served under section 48B with a copy of any written statement to be tendered as evidence in the proceedings, or
(ii) the defendant has been informed of the time set by the Justice or Justices for the commencement of the taking of the evidence for the prosecution.
When all evidence for the prosecution has been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:
(a) if not of the opinion referred to in paragraph (b)—forthwith order the defendant to be discharged as to the information then under inquiry, or
(b) if of the opinion that, having regard to all the evidence before the Justice or Justices, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence:
(i) if the defendant is present—proceed as provided by subsections (4), (5) and (6), or
(ii) if the defendant is not present—proceed as provided by subsection (6).
(Repealed)
(i) Where the Justice or Justices form the opinion referred to in subsection (2) (b) that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence, the Justice or Justices shall:
(a) say to the defendant: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be recorded, and may be given against you in evidence at your trial”, and
(b) before the defendant makes any statement in answer, inform the defendant and give the defendant clearly to understand that the defendant has nothing to hope from any promise of favour and nothing to fear from any threat which may have been holden out to the defendant to induce the defendant to make any admission or confession of his or her guilt, but that whatever the defendant then says may be given in evidence against the defendant upon his or her trial notwithstanding such promise or threat.
(ii) Whatever the defendant then says shall be recorded by one of the means referred to in section 36 (4).
(iii) Such statement if taken down in writing shall be read over to the defendant and shall be signed by the Justice or Justices.
(iv) Such statement:
(a) if taken down in writing, may be given in evidence at the trial of the defendant without further proof unless it be proved that the Justice or Justices by whom it purports to be signed did not in fact sign it,
(b) if in the form of a transcript, certified in the prescribed manner, of a record (other than in writing) made pursuant to paragraph (ii), may be given in evidence at the trial of the defendant if it is proved on oath that the record so made is a true record of the statement made by the defendant and that the transcript is a correct transcript of the record so made.
(v) Nothing herein shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant, made at any time, which by law would be admissible as evidence against the defendant.
(i) After the defendant has made such statement, or if the defendant makes no such statement, the Justice or Justices shall ask the defendant if he or she desires to give evidence himself or herself or to call any witness on his or her behalf.
(ii) Any evidence then given by or on behalf of the defendant shall be taken by the Justice or Justices in manner hereinbefore provided in respect of evidence for the prosecution.
When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:
(a) if of the opinion that, on the basis of all the evidence before the Justice or Justices, there is a reasonable prospect that a jury would convict the defendant of an indictable offence—commit the defendant for trial, or
(b) if not of that opinion—forthwith order the defendant to be discharged as to the information then under inquiry.
Where, pursuant to subsections (2) (b) (ii) and (6), a defendant has been committed for trial, a Magistrate or Judge may set aside the order for committal and any warrant of commitment issued thereon if, upon the application of the defendant made before the presentation of an indictment against the defendant, good and proper reason is shown for the absence of the defendant and the Magistrate or Judge is satisfied that it is in the interests of justice to do so.
A reference in this section to a jury is a reference to a reasonable jury properly instructed.
For the purposes of committal proceedings, the Justice or Justices must 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.
The Justice or Justices may at any stage during the examination or cross-examination of any witness giving evidence for the prosecution or the defence terminate the examination or cross-examination on any particular matter if satisfied that any further examination or cross-examination on the matter will not assist the Justice or Justices in forming any opinion referred to in subsection (2) or (6).
If a person attends at committal proceedings because the person has been directed under section 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.
Despite any other provision of this section, the Justice or Justices may, at any time, on the application of the defendant and with the consent of the informant, commit the defendant for trial.
In a hearing referred to in section 41, being a hearing in relation to a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986, 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) a 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,
any of the depositions of the person referred to in paragraph (c) that were taken at the proceedings in which the person referred to in paragraph (b) 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 admitted as evidence.
If, in such a hearing, the person charged with the offence has been served with a copy of any such deposition and has had a reasonable opportunity to examine it, the person on whom the offence is alleged to have been committed may not, without the leave of the court, be asked by or on behalf of the person so charged:
(a) to give in evidence any material contained in the deposition, or
(b) to answer a question that is the same or substantially similar to a question an answer to which is contained in the deposition.
The Justice or Justices:
(a) when making an order discharging a defendant as to the information then under inquiry, or
(b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged,
may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant (or, if the informant so elects, directly to the defendant) such costs as to the Justice or Justices seem just and reasonable.
The amount so allowed for costs shall in all cases be specified in the order requiring payment.
Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any 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 prosecution 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 defendant 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 prosecution, it is just and reasonable to award costs.
Subsection (2A) does not apply to the awarding of costs against an informant acting in a private capacity.
For the purposes of subsection (2B), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the informant in any proceedings under that Act.
(Repealed)
Where a person is committed for trial, the committing Justice or Justices shall, subject to the Bail Act 1978, commit the person to a correctional centre, there, subject to that Act, to be safely kept until the sittings of the Court before which the person is to be tried or until the person is delivered by due course of law.
Where a person is committed to a correctional centre pursuant to subsection (1), the warrant of commitment may be signed by any Justice.
The constable or other person to whom a warrant of commitment is directed shall convey the person committed therein named or described to the correctional centre therein mentioned, and there deliver the person and the warrant to the keeper or governor of the correctional centre, who shall thereupon give the constable or other person delivering such person into his or her custody a receipt for such person, setting forth the state and condition in which such person was then delivered into the custody of such gaoler, keeper, or governor.
(Repealed)
(Repealed)
Where a person in a correctional centre on committal for trial is released on bail, the person to whom the bail undertaking is given shall forthwith transmit the bail undertaking, the instrument by which any bail conditions were imposed on the grant of bail and any agreement or acknowledgment entered into or made pursuant to any such condition to the committing Justice or Justices, who shall transmit them with the depositions to the Attorney-General.
If a corporation (whether alone or jointly with some other person) is charged before a court with an indictable offence, the court may, if of the opinion that the evidence is sufficient to put the accused corporation on trial, make an order authorising an indictment to be filed:
(a) for the offence named in the order, or
(b) for such other offence as the Attorney General or Director of Public Prosecutions considers proper,
and the order is taken to be a committal for trial.
The offence to which such a charge relates may be dealt with summarily if:
(a) the offence is an offence that, in the case of an adult, may be dealt with summarily, and
(b) the corporation does not appear by a representative or, if it does so appear, consents that the offence should be dealt with summarily.
If a corporation appears to such a charge by a representative, any answer to the question referred to in section 41 (4) (a) may be made on behalf of the corporation by that representative.
If a corporation does not appear to such a charge, it is not necessary to put the question referred to in section 41 (4) (a).
In this Subdivision, except in so far as the context or subject-matter otherwise indicates or requires:
(a) a reference, in relation to any committal proceedings, to the Justice or Justices is a reference to the Justice or Justices before whom the proceedings are held,
(b) a reference to the defendant includes a reference to the counsel or attorney of the defendant,
(c) a reference to the informant includes a reference to the counsel, attorney or other person who appears on behalf of the informant,
(d) a reference to a proposed exhibit is a reference to a document or other thing identified in a written statement, as referred to in section 48A (2).
Where in any committal proceedings there are 2 or more defendants, the provisions of this Subdivision:
(a) apply in relation to each such defendant to the extent only that a written statement referred to in this Subdivision is sought to be admitted as evidence against that defendant, and
(b) so apply in relation to each such defendant as if that defendant were the only defendant,
and references in this Subdivision to the defendant shall be construed accordingly.
In this Subdivision:
(a) a reference to a written statement includes a reference to the 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 an offence (as referred to in the Evidence (Children) Act 1997), and
(b) a reference to the person who made such a written statement is taken to be a reference to the child who gave the interview.
Evidence for the prosecution in any committal proceedings must (subject to this section) be given by means of written statements which are admissible as evidence under section 48A.
The evidence of a person need not be given by means of such a statement if the Justice or Justices is or are satisfied, on the application of the informant, that:
(a) the statement was prepared but a copy of the statement could not reasonably be served on the defendant,
(b) any other requirement of this Subdivision relating to the statement could not reasonably be complied with, or
(c) the evidence is additional evidence of a person whose statement has already been admitted in evidence and a further written statement is not appropriate.
If an application under subsection (2) is not granted, the Justice or Justices may:
(a) adjourn the committal proceedings in order to enable the appropriate written statement to be prepared and served on the defendant, or
(b) proceed with the committal proceedings without taking that evidence.
Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, 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 that person.
Any document or other thing identified in any written statement admitted as evidence under this section shall, if the document or other thing is produced as an exhibit in the committal proceedings, be treated as if it had been identified before the Justice or Justices by the person who made the statement.
A written statement that is inadmissible as evidence under this section by virtue of any provision of this Subdivision may nevertheless be admitted as evidence in accordance with any rule or law of evidence, as if this Subdivision were not in force.
A written statement is not admissible as evidence under section 48A in any committal proceedings if:
(a) the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant:
(i) a copy of the statement, together (where relevant) with a copy of the translation of the statement referred to in section 48C or of so much of the statement as is not in the English language, and
(ii) a copy of the proposed exhibits (if any) identified in the statement or, in the case of a proposed exhibit which it is impossible or impracticable to copy, a notice specifying a time and place at which the proposed exhibit may reasonably be inspected,
(b) where a notice referred to in paragraph (a) (ii) has been served on the defendant, the defendant has not been afforded a reasonable opportunity to inspect each proposed exhibit referred to in the notice,
(c) the age of the person who made the statement is not specified in the statement, or
(d) such other requirements (whether of the same or of a different kind) as may be prescribed by the regulations have not been complied with.
In any committal proceedings, the Justice or Justices may and, on the application of or with the consent of the defendant, shall dispense with all or any of the requirements of subsection (1), on such terms and conditions as appear just and reasonable, and accordingly those requirements shall, to the necessary extent, not be applicable in relation to those proceedings.
Subsection (2) does not apply to such of the requirements referred to in subsection (1) (d) as are declared by the regulations to be requirements that may not be dispensed with under subsection (2).
In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that the age specified in a statement purporting or appearing to be the age of the person who made the statement is in fact the age of that person.
A written statement served on a defendant under section 48B in committal proceedings must not disclose the address or telephone number of the person who made the statement or of any other living person, unless:
(a) the address or telephone number is a materially relevant part of the evidence, or
(b) the Justice or Justices make an order permitting the disclosure in the statement.
An application for such an order may be made by the informant or the defendant.
The Justice or Justices shall not make such an order unless satisfied that disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the defendant’s right to prepare properly for the hearing or for trial) outweigh any such risk.
An address or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the defendant.
A written statement is not inadmissible as evidence on the ground that it either does or does not disclose any such address or telephone number as is mentioned in this section.
This section does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address.
In this section:
A written statement is not admissible as evidence under section 48A in any committal proceedings if:
(a) the statement is not endorsed in whichever of the following forms is appropriate in the particular case:
(i) except in a case to which subparagraph (ii) applies:
• This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness.
• The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
(ii) in a case where the person who made the statement is a child under 12 years of age:
• I have not told any lies in this statement.
(b) (Repealed)
(c) the statement or such an endorsement is not written in a language of which the person who made the statement has a reasonable understanding,
(d) where the statement is written, wholly or in part, in a language other than English, there is not annexed to it a document purporting to contain a translation of the statement, or so much of the statement as is not in the English language, into the English language,
(e) the statement is not signed by the person who made the statement, or
(f) the statement is not signed by another person as a witness, who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it).
In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that:
(a) the language in which a statement or endorsement is written, as referred to in subsection (1) (c), is a language of which the person who made the statement has a reasonable understanding, or
(b) a signature on a statement purporting or appearing to be that of:
(i) the person who made the statement, as referred to in subsection (1) (e), is in fact the signature of that person, or
(ii) a person who signed the statement as a witness, as referred to in subsection (1) (f), is in fact the signature of a person who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it), or
(c) a statement purporting or appearing to have been signed in accordance with subsection (3) was in fact signed in accordance with that subsection and the signature on the statement purporting or appearing to be that of the person who signed under that subsection is in fact the signature of that person.
If a person who makes a statement is unable to sign it, the statement is for the purposes of subsection (1) to be considered to have been signed by the person if it is signed by another person who:
(a) signs it with the consent of and in the presence of the person who made the statement, and
(b) signs 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.
A written statement is admissible as evidence under section 48A in a committal proceeding even if it is in the form of questions and answers.
A written statement that is in the form of a transcript of a recording of an interview with a child is not admissible as evidence under section 48A in any committal proceedings unless:
(a) it has been certified by an investigating official as an accurate transcript of the recording to which the statement relates, and
(b) the defendant has been 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, view the recording.
Section 48C (1) (a), (c), (e) and (f) do not apply to any such written statement.
In any committal proceedings, it is, for the purposes of this Subdivision, to be presumed, in the absence of evidence to the contrary, that a signature on such a written statement purporting to or appearing to be that of an investigating official is in fact the signature of that person.
Nothing in this Subdivision requires the informant to serve on the defendant a copy of a recording of an interview with a child (other than a transcript of the recording).
In this section:
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.
A written statement is not admissible as evidence under section 48A in any committal proceedings if the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant a notice in or to the effect of the prescribed form explaining the effect of this Subdivision and the rights of the defendant in relation thereto.
Where in any committal proceedings the defendant is not represented by counsel or an attorney, a written statement is not admissible as evidence under section 48A in those proceedings if the Justice or Justices:
(a) has or have not addressed the defendant in or to the effect of the prescribed form of words, or
(b) is or are not satisfied that the defendant understands the defendant’s rights under this Subdivision.
For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.
The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given.
In any other circumstance, the Justice or Justices may give the direction only if:
(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence—the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or
(b) in any other case—the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.
A defendant may apply for a direction under subsection (1) only if the defendant has served on the informant, within such period as the Justice or Justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.
If a direction has been given under subsection (1), the statement is not admissible as evidence under section 48A in the proceedings, unless the direction has been withdrawn.
A direction given under subsection (1) on the application of a defendant or informant may be withdrawn:
(a) only 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.
If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so.
The regulations may make provision for or with respect to the determination of special reasons under subsection (2) (a) and the determination of substantial reasons under subsection (2) (b).
In this section:
(a) a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986,
(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) any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section.
(Repealed)
Where in any committal proceedings it appears to the Justice or Justices that the whole or any part of a written statement tendered as evidence under this Subdivision is inadmissible, the Justice or Justices shall reject the statement or that part, as the case may be, as evidence. However, the Justice or Justices must not exclude evidence on any of the grounds set out in Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.
Where a part of a written statement is rejected under subsection (1), the Justice or Justices shall, by one of the means referred to in section 36 (4), make a record identifying the part that has been rejected and indicating that it has been rejected.
The regulations may, for the purposes of subsection (2), prescribe the manner of identifying a part of a statement that has been rejected and of indicating that it has been rejected.
Without limiting the powers of the Justice or Justices to adjourn committal proceedings, the Justice or Justices shall grant such adjournments as appear to be just and reasonable as a consequence of any of the provisions of this Subdivision.
The Justice or Justices shall, when giving a direction under section 48B or 48D for the service of a written statement or notice on the defendant, direct that the statement or notice be served at least 28 days before the committal hearing unless the defendant consents to a shorter period or the circumstances of the case otherwise require.
The Justice or Justices shall, when giving a direction under section 48E (4) for the service of a notice on the informant, direct that the notice be served at least 14 days before the committal hearing unless the informant consents to a shorter period or the circumstances of the case otherwise require.
A written statement or other notice under this Subdivision shall be served in such manner as may be prescribed by the regulations or (subject to the regulations) in such manner as may be determined by the Justice or Justices.
In this section:
Where a written statement made by any person is tendered in evidence for the purposes of this Subdivision, the person 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.
Division 3 of Part 2 of the Criminal Procedure Act 1986 (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.
A person guilty of an offence under this section is liable:
(a) where the offence is dealt with summarily—to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months, or both, or
(b) where the offence is dealt with on indictment—to a penalty not exceeding 50 penalty units or to imprisonment for a term not exceeding 5 years, or both.
(Repealed)
A written statement that, but for this subsection, would be admissible as evidence under section 48A is not so admissible if, on evidence produced during the committal proceedings, the Justice or Justices is or are satisfied that the person who made the statement is dead.
Where, after a written statement has been admitted as evidence under section 48A, it transpires that the person who made the statement died before its admission, the statement shall be deemed not to have been so admitted.
(Repealed)
A person charged before one, or more than one, Justice with an indictable offence may, at any stage of the proceedings, plead guilty to the charge and thereupon the following provisions of this section have effect:
(a) The Justice or Justices may accept or reject the plea.
The rejection of a plea of guilty at any stage of the proceedings does not prevent the accused from pleading guilty under this section at a later stage of the proceedings and the Justice or Justices have power to accept or reject the plea at that later stage,
(b) Where the Justice or Justices reject the plea the proceedings before the Justice or Justices shall be continued as if the plea had not been made,
(c) Where the Justice or Justices accept the plea, the Justice or Justices shall thereupon commit the accused to such sittings of the Supreme Court, or the District Court as the Justice or Justices may direct to be dealt with as hereinafter in this section provided,
(d) The Judge of the Supreme Court or of the District Court, as the case may be, before whom the accused is brought in accordance with this section:
(i) shall, if it appears to him or her from the information or evidence given to or before him or her that the facts in respect of which the accused was charged before the Justice or Justices do not support the charge to which the accused pleaded guilty or if counsel for the Crown requests that an order be made under this subparagraph, and may, if for any other reason the Judge sees fit so to do, order that the proceedings before the Justice or Justices at which the accused pleaded guilty be continued at a time and place to be specified in the order,
(ii) unless an order is made under subparagraph (i), has the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he or she would have had if the accused on arraignment at any sittings of the Court had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Director of Public Prosecutions,
(e) Notwithstanding paragraph (d), where the accused is, in accordance with this section, brought before a Judge and changes to not guilty the plea to the charge on which the accused was committed under paragraph (c):
(i) the Judge shall, unless the Judge is of the opinion that an order should be made under paragraph (d) (i), direct that the accused be put on trial for the offence charged,
(ii) upon the giving of the direction, the committal under paragraph (c) shall be deemed to be a committal of the accused for trial for that offence, and
(iii) the Judge may make such orders, may do such other things that the Justice or Justices could have done on a committal for trial, and may give such directions with respect to matters preliminary to the trial, as to the Judge seems to be just,
(f) Paragraph (e) does not apply in relation to an offence punishable with imprisonment for life.
All proceedings relating to a committal for trial apply, as nearly as may be, to a committal under paragraph (c) of subsection (1).
Where an order is made by a Judge under subparagraph (i) of paragraph (d) of subsection (1) that proceedings before a Justice or Justices at which an accused pleaded guilty be continued at a time and place specified in the order, those proceedings shall be continued in all respects as if the accused had not pleaded guilty and as if those proceedings had been adjourned by the Justice or Justices to the time and place so specified.
Upon the making of any such order the Judge may exercise any power that the Justice or Justices might have exercised under section 34 if the order had been an order made by the Justice or Justices adjourning the proceedings to the time and place so specified; and the provisions of the said section 34 apply to and in respect of the accused.
Where a person has, in respect of any charge to which the person has pleaded guilty under subsection (1), been committed under paragraph (c) of that subsection, the Attorney-General or the Director of Public Prosecutions may in his or her discretion direct in writing that no further proceedings under this section be taken against the person so committed in respect of that charge.
Upon the giving of such direction:
(a) no further proceedings shall be taken under this section against the person so committed in respect of that charge, and
(b) the provisions of section 127 of the Criminal Procedure Act 1986 apply to and in respect of the person concerned as if the person were under committal for trial and the Attorney-General or the Director of Public Prosecutions had declined to file any information against the person.
A committal under paragraph (c) of subsection (1) shall, for all purposes relating to the venue or change of venue of proceedings consequent on that committal, be deemed to be a committal for trial.
This section does not apply if the indictable offence with which the person is charged:
(a) is being dealt with summarily in accordance with Division 3 of Part 2 of the Criminal Procedure Act 1986, or
(a1) is being dealt with in accordance with Part 2 of the Drug Court Act 1998, or
(b) may otherwise be dealt with summarily without the consent of the accused and is being so dealt with.
A person sentenced or otherwise dealt with under subparagraph (ii) of paragraph (d) of subsection (1) for an offence to which he or she pleaded guilty pursuant to that subsection shall, for the purposes of any Act passed either before or after the commencement of section 2 of the Justices (Amendment) Act 1958, be deemed to be convicted on indictment of the offence.
This section applies to indictable offences disposed of summarily by a Magistrate.
Without affecting the generality of section 4, sections 80AA–86 apply and shall be deemed to have always applied to and in respect of indictable offences to which this section applies as if references in those sections to informations laid under section 52 included references to informations laid under section 21.
Subdivision 6A of Division 2 applies to an offence to which this section applies that is subject to Division 3 of Part 2 of the Criminal Procedure Act 1986, as set out in section 66H.
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed an offence or act in New South Wales for which the person is liable upon summary conviction before a Justice or Justices to be punished by fine, imprisonment, or otherwise.
Without limiting the operation of this Subdivision and Subdivision 2, an information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if:
(a) the person has been charged with an offence and served with a copy of a charge sheet containing details of the offence, and
(b) the person has been subsequently released on bail, and
(c) a copy of the charge sheet or other document setting out the details of the offence, and a bail undertaking under the Bail Act 1978, have been lodged in respect of the person with the clerk of a Local Court or given to a Magistrate.
For the purposes of this Act:
(a) the copy of the charge sheet or other document setting out the details of the offence lodged with the clerk of a Local Court or given to a Magistrate is taken to be an information that is not substantiated by the oath of the informant or witness, and
(b) the bail undertaking is taken to be a summons.
A complaint may be made to a Justice in any case where a Justice or Justices has or have authority by law to make an order for the payment of money, or otherwise.
An information or complaint may be laid or made by the informant or complainant in person, or by his or her counsel, attorney, or other person authorised in that behalf.
An information or complaint may be laid or made without oath, unless it is otherwise required by the provisions of any Act. A complaint need not be in writing unless it is required to be so by the Act upon which it is founded.
An information or complaint may, unless some other time is specially limited by the Act dealing with the matter, be laid or made at any time within six months from the time when the matter of the information or complaint arose.
Where an information or complaint has been laid or made in writing without oath, any person able so to do may by his or her oath substantiate the matter thereof, whether or not he or she is the informant or complainant and whether or not that matter arose more than six months before being so substantiated.
For the purposes of subsection (2), the matter of the information or complaint may be substantiated on oath before the Justice before whom the information or complaint was laid or made, or before some other Justice.
Every information shall be for one offence only, and not for two or more offences. Every such complaint shall be for one matter only and not for two or more matters.
Whenever it is necessary in any information or complaint or in any proceedings thereon to state the ownership of any property belonging to, or in the possession of partners, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to allege the property to belong to the person so named, and “another” or “others,” as the case may be.
Whenever it is necessary in any information or complaint or in any proceedings thereon, to mention for any purpose any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them by naming one of such persons, and referring to the rest as “another” or “others,” as the case may be.
Whenever an information is laid before a Justice, against any person, and the matter thereof substantiated by the oath of the informant or a witness, such Justice may issue his or her warrant in the first instance for the apprehension of such person.
Whenever an information or complaint is laid or made before a Justice, against any person as hereinbefore provided:
(a) where the information or complaint is not substantiated as provided by section 56, the Justice before whom the information or complaint was laid or made, or
(b) where the information or complaint is so substantiated, the Justice before whom it was so substantiated,
may issue his or her summons for the appearance of such person:
Provided that nothing herein contained shall oblige a Justice to issue his or her summons in any case where a complaint is by law to be made ex parte.
Where the Justice before whom an information or complaint is laid or made considers that the matter of the information or complaint would be better resolved by mediation than by proceedings under this Act, the Justice may, with the consent of the informant or complainant, instead of issuing a summons under subsection (1), order the informant or complainant to submit the matter of the information or complaint to mediation under the Community Justice Centres Act 1983.
Where an order is made under subsection (2) in relation to the matter of an information or complaint but:
(a) the matter of the information or complaint may not, by the operation of section 22 (1) of the Community Justice Centres Act 1983, be the subject of a mediation session under that Act,
(b) the defendant refuses to attend at, or participate in, a mediation session under that Act or either party withdraws from such a session,
(c) the Director of a Community Justice Centre declines under section 24 (1) of that Act to consent to the acceptance of the matter of the information or complaint for mediation, or
(d) a mediation session attended by the informant or complainant and the defendant is terminated under section 24 (2) of that Act,
a Justice may issue a summons for the appearance of the defendant.
(Repealed)
Every summons for the appearance of any person shall:
(a) be under the hand and seal of the Justice issuing it, and
(b) be directed to such person, and
(c) state shortly the matter of the information or complaint, and
(d) require such person to appear at a certain time and place before such Justice as shall then be there to answer to the information or complaint, and be dealt with according to law, and
(e) set out, or be accompanied by, information about the right under section 75 to notify a plea in writing.
Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him or her personally or, if the person cannot conveniently be met with, by leaving it with some person for him or her at his or her last or most usual place of abode.
Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed:
(a) where that person is a natural person, at his or her last known place of residence or business,
(b) where that person is a body corporate, at a place where it trades or carries on business, or
(c) in either case referred to in paragraphs (a) and (b):
(i) where there is a prescribed address for the person, and
(ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person,
at the prescribed address for that person.
In subsection (2),
(a) as an officer or a temporary employee under the Public Service Act 1979,
(b) as an officer or employee of a corporation that, for the purposes of any Act, is a statutory body representing the Crown,
(c) as a councillor or employee of a council within the meaning of the Local Government Act 1993,
(d) as an officer or employee of a rural lands protection board under the Rural Lands Protection Act 1998,
(e) as an officer within the meaning of the Prevention of Cruelty to Animals Act 1979,
(f) as an officer or employee of an area health service constituted under the Health Services Act 1997, or
(g) as an officer of the Commonwealth.
Subject to subsection (4), service of a summons in the manner referred to in subsection (1) or (2) may be proved by the oath of the member of the police force or other person who served it, or by affidavit or otherwise.
Where a summons is posted as provided in this section:
(a) the deposition or affidavit of service shall state the manner in which the deponent was informed of the address to which it was so posted and the time and place of posting, and
(b) in the absence of any proof to the contrary, the summons shall be deemed to have been duly served on the person to whom it is directed at the time at which it would be delivered in the ordinary course of post.
The Justice or Justices at the hearing or adjourned hearing of an information in respect of which a summons has been issued may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1), and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order.
In this section
(a) in relation to a person alleged to have committed an offence arising out of the driving or use of a motor vehicle or trailer, or an attempt to do so (not being an offence referred to in paragraph (b))—the address appearing as the address of that person on a driver licence within the meaning of the Road Transport (Driver Licensing) Act 1998, or any law of a State or of a Territory of the Commonwealth that corresponds to that Act, produced by that person at or about the time of the alleged offence or upon the investigation thereof,
(b) in relation to a person alleged to have committed an offence as owner of a motor vehicle or trailer—the address appearing on or from the records kept by the Roads and Traffic Authority under the Road Transport (Vehicle Registration) Act 1997 in respect of the registration of motor vehicles or trailers, or on or from records of a like nature kept by any authority under any law of a State or of a Territory of the Commonwealth that corresponds to that Act, as the last known address of the person in whose name the motor vehicle or trailer was registered under that Act or law on the date of the alleged offence, or
(c) in relation to a person alleged to have committed any other offence against an Act, rule, regulation, ordinance, by-law or order—the address appearing as the address of that person in any licence or registration for the time being in force pertaining to that person or to any property of which that person appears to be the owner or occupier, being a licence or registration held or effected by that person under the Act against which, or under the Act authorising the making of the rule, regulation, ordinance, by-law or order against which, the offence is alleged to have been committed.
This section shall be construed as operating in addition to, and not as derogating from, the operation of a provision of any other Act relating to the service of summonses, and any such provision shall be construed as operating in addition to, and not as derogating from, the operation of this section.
Every warrant for the apprehension of any person shall:
(a) be under the hand and seal of the Justice issuing it, and
(b) be directed to a police constable or other person by name, or generally to the senior officer of police of the district or place where it is to be executed, or to such officer of police and to all other police constables in New South Wales, or generally to all police constables in New South Wales, and
(c) name or otherwise describe the person whose appearance is required, as the case may be, and
(d) state shortly the matter of the information or complaint, and
(e) order the police constable or person to whom it is directed to apprehend the person whose appearance is required, and cause the person to be brought before such Justice, or any other one or more than one Justice, as the Act dealing with the matter may require, to answer to the information or complaint, and may be dealt with according to law.
In an existing warrant:
(a) a reference (however expressed) to an institution or a shelter, or an institution or a shelter of a particular kind, is to be read as a reference to a detention centre within the meaning of the Children (Detention Centres) Act 1987 or, if the person the subject of the warrant is of or above the age of 21 years or remanded to or imprisoned in a prison, as a reference to a prison, and
(b) a reference (however expressed) to the superintendent of an institution or the keeper or other person in charge of a shelter is to be read as a reference to the superintendent of a detention centre within the meaning of the Children (Detention Centres) Act 1987 or the keeper of a prison, as the case requires.
Without limiting the generality of section 30 of the Interpretation Act 1987, a warrant may be issued under and subject to section 87 of this Act in respect of an existing fine defaulter.
The provisions of this Act, the Children (Community Service Orders) Act 1987, the Community Service Orders Act 1979 and the Children (Criminal Proceedings) Act 1987, as respectively amended by the Fine Enforcement Legislation (Amendment) Act 1989, apply to existing warrants, and warrants issued after the appointed day in respect of existing fine defaulters, in the same way as they apply to warrants issued in respect of fine defaulters under section 87 after the appointed day.
An existing warrant which is, by virtue of clause 12, to be read as committing a person to a detention centre is to be taken to be an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987. This has the effect of making the warrant a detention order for the purposes of the Children (Detention Centres) Act 1987.
A provision of Division 4 of Part 5 applies to and in respect of an appeal or application under that Division by a person against whom a conviction or order was made before the commencement of an amendment to that provision made by the Justices (Amendment) Act 1993 as if the amendment were not in force.
A notice, apparently for the purposes of section 100J, issued before the date of commencement of the Justices (Courtesy Letters) Amendment Act 1993 and expressed to be a courtesy letter is taken to be a valid courtesy letter referred to in section 100J and to have been validly issued.
Action taken after the issue of such a notice is not invalid because of any invalidity cured by this clause. Without limiting the generality of this provision, such action includes the payment or recovery of an amount under a penalty notice, the payment or recovery of an amount under an enforcement order made under section 100L, the imprisonment or detention of a person, the cancellation of the registration of a motor vehicle, the cancellation of a licence issued under the Traffic Act 1909 or the incurring or recording of demerit points under the Motor Traffic Regulations 1935.
The amendments made by the Justices (Courtesy Letters) Amendment Act 1993 do not apply to a courtesy letter that is posted before the commencement of that Act.
In this Part:
The amendments made by the fine default amendments apply in respect of convictions or orders whether made before or after the commencement of those amendments, except as provided by this Part.
An amendment made by the fine default amendments extends to apply in respect of any warrant of commitment issued under section 87 and in force but not executed immediately before the commencement of the amendment.
Section 87 (1A) does not apply to affect the validity of a warrant issued before the commencement of that subsection.
An amendment made to section 89D by the fine default amendments (re-numbered as section 89G by those amendments) does not apply in respect of the proceeds of a fine, penalty, costs or other amount payable by virtue of a conviction, order or enforcement order made before the commencement of the amendment, except as provided by subclause (2).
Section 89G (4B) extends to apply in respect of costs payable by virtue of a conviction, order or enforcement order made before the commencement of that subsection.
A warrant of commitment in force under section 87 immediately before the commencement of section 89G (4B) is revoked on the commencement of that subsection to the extent that the warrant relates to any costs awarded against a person as informant if the person was not acting in the capacity of a public official.
An application made under section 89B (as in force immediately before the repeal of that section by the fine default amendments) for the purposes of section 26A of the Community Service Orders Act 1979 or section 5A of the Children (Community Service Orders) Act 1987 and pending immediately before the repeal of section 89B is taken to have been made under section 89C as inserted by the fine default amendments.
Nothing in the fine default amendments operates to revive any warrant of commitment that has been recalled, withdrawn or revoked.
The amendments made by the fine default amendments to section 26C of the Community Service Orders Act 1979 and section 13 of the Children (Community Service Orders) Act 1987 apply only in respect of hours of community service work worked after the commencement of those amendments.
An amendment made by Schedule 1 [1], [2], [3], [4], [8], [10] or [11] of the Justices Amendment (Committals) Act 1996 applies from the commencement of the amendment to, or for the purposes of, all committal proceedings (including committal proceedings pending at that commencement).
The amendments made by Schedule 1 [5], [6], [7] and [9] of the Justices Amendment (Committals) Act 1996 apply to, or for the purposes of, only those committal proceedings in respect of which an information is laid after the commencement of those amendments.
Sections 22A and 52A, as inserted by the Justices Amendment (Procedure) Act 1997, apply to proceedings commenced before, on or after the commencement of either of those sections.
Section 75, as inserted by the Justices Amendment (Procedure) Act 1997, applies to proceedings commenced before, on or after the commencement of that section.
Sections 75A–75F, as inserted by the Justices Amendment (Procedure) Act 1997, apply to proceedings commenced before, on or after the commencement of any of those provisions.
Part 4A, as inserted by the Justices Amendment (Procedure) Act 1997, applies only to convictions, orders or sentences made or imposed after the commencement of that Part and so applies whether or not the proceedings concerned commenced before or after that commencement.
Part 4A, as in force immediately before its repeal by the Justices Amendment (Procedure) Act 1997, continues to have effect in respect of convictions, orders or sentences made or imposed before that repeal.
Section 48E, as in force immediately before the amendment to that section made by the Crimes Legislation Amendment Act 1998, applies to and in respect of a person who has made a written statement for the purposes of Subdivision 7A of Division 1 of Part 4 in relation to any committal proceedings that are pending, or that have been commenced but not completed, on the commencement of that amendment.
In this Part:
The provisions of sections 31, 66 and 153A, as amended by the 1998 amending Act, apply to and in respect of any warrant issued before the commencement of those provisions in the same way as they apply to and in respect of any warrant issued after that commencement.
The provisions of section 69, as amended by the 1998 amending Act, apply to and in respect of any hearing that began before the commencement of those provisions in the same way as they apply to and in respect of any hearing that begins after that commencement.
The provisions of:
(a) Subdivision 8 of Division 1 of Part 4 of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 49 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) Subdivision 9 of Division 2 of Part 4 of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 96 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) sections 102 and 131B of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 102 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) sections 123 and 131B of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 123 of the Justices Act 1902 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) sections 125A and 131B of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 125A of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) section 153A of the Justices Act 1902, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 153A of the Justices Act 1902 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
Any stay of execution that was in force under section 123, immediately before its substitution by the 1998 amending Act, is unaffected by that substitution.
Any stay of execution that was in force under section 125A, immediately before its repeal by the 1998 amending Act, is unaffected by that repeal.
The provisions of:
(a) section 40 of the Coroners Act 1980, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 40 of the Coroners Act 1980 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of:
(a) section 72 of the Local Courts (Civil Claims) Act 1970, and
(b) the amended 1954 Act,
continue to apply to a recognizance entered into under section 72 of the Local Courts (Civil Claims) Act 1970 before the amendment of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.
The provisions of section 17A of the Inebriates Act 1912, as inserted by the 1998 amending Act, apply to and in respect of any recognizance entered into before the commencement of those provisions in the same way as they apply to and in respect of any recognizance entered into after that commencement.
The provisions of section 31 of the Protected Estates Act 1983, as amended by the 1998 amending Act, apply to and in respect of any bond or recognizance given or entered into before the commencement of those provisions in the same way as they apply to and in respect of any bond given after that commencement.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998.
Such a provision may, if the regulations so provide, take effect from the date of assent to that Act or a later day.
To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
Parts 5, 5A and 5B, as inserted by the Justices Legislation Amendment (Appeals) Act 1998, apply only to convictions or orders made, or sentences imposed, after the commencement of those Parts and so apply whether or not the proceedings concerned commenced before or after that commencement.
Part 5, as in force immediately before its repeal by the Justices Legislation Amendment (Appeals) Act 1998, continues to have effect in respect of convictions or orders made or sentences imposed before that repeal.
This clause extends to a conviction, order, determination or sentence made or imposed under another Act before the repeal of Part 5 by the Justices Legislation Amendment (Appeals) Act 1998 in proceedings to which provisions of that Part were applied by that other Act.
An application made under section 134 before its repeal but not determined before that repeal may be dealt with as if that section had not been repealed.
Section 134 (2) as in force before its repeal applies in relation to an order made by the Supreme Court on an application referred to in subclause (1).
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Justices Legislation Amendment (Appeals) Act 1998.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In this Part,
Division 4 of Part 4, as inserted by the amending Act, extends to proceedings commenced before the commencement of that Division.
However, the provisions of Divisions 1 and 2 as in force immediately before the commencement of the amendments made to those Divisions by the amending Act continue to apply to and in respect of a summons issued under section 26 or 61 and in force immediately before the commencement of those amendments as if those amendments had not been made.
The issue of a subpoena before the commencement of Division 4 of Part 4, as inserted by the amending Act, is validated to the extent of any invalidity if the issue of the subpoena would have been valid had the Division been in force at the time the subpoena was issued.
Any act, matter or thing done after the issue of such a subpoena is validated to the extent of any invalidity if the act, matter or thing would have been validly done had the Division been in force at the time it was done.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Courts Legislation Amendment Act 1999.
Any such provision may, if the regulations so provide, take effect from the date of assent to that Act or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The amendments made to Subdivision 7A of Division 1 of Part 4 by the Courts Legislation Amendment Act 1999 apply only in respect of committal proceedings that are commenced to be heard by a Justice or Justices after the commencement of those amendments.
The amendments to Subdivision 6A of Division 2 of Part 4 made by the Courts Legislation Amendment Act 1999 do not apply in respect of proceedings for the prosecution of a prescribed summary offence if the hearing of the evidence for the prosecution commenced before the commencement of those amendments.
The amendment made to section 100P by the Courts Legislation Amendment Act 1999 does not apply in respect of any application made by a person under section 100D or 100G before the commencement of that amendment.
The amendments made to Part 5 by the Courts Legislation Amendment Act 1999 do not apply in respect of any conviction or order made, or sentence imposed, before the commencement of those amendments.
The amendment made to section 127 by the Courts Legislation Amendment Act 1999 does not apply in respect of any conviction or order made, or sentence imposed, before the commencement of that amendment.
The amendments made to Part 5B by the Courts Legislation Amendment Act 1999 do not apply in respect of any conviction or order made, or sentence imposed, before the commencement of those amendments.
Section 123 (1A), as inserted by the Courts Legislation Amendment Act 1999, applies only in respect of apprehended violence orders made under Part 15A of the Crimes Act 1900 after the commencement of that subsection.
Section 131A and the amendments made to sections 132 and 133 by the Courts Legislation Amendment Act 1999 apply to appeals against sentence made to the District Court after the commencement of section 131A, and so apply even if the sentence the subject of the appeal was imposed before the commencement of that section.
Sections 132 and 133, as in force immediately before the commencement of section 131A, continue to have effect in respect of appeals against sentence made to the District Court before that commencement.
Section 146, as inserted by the Courts Legislation Amendment Act 1999, does not apply in respect of any application made to the Supreme Court before the commencement of that section.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Courts Legislation Amendment Act 2001 (but only to the extent that it amends this Act).
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The amendments made to this Act by the Courts Legislation Amendment Act 2001 apply to or in respect of committal proceedings for offences, whether committed before, on or after the commencement of this clause, but do not apply to or in respect of committal proceedings commenced before the commencement of this clause.
This Act, as in force before the commencement of this clause, continues to apply to or in respect of committal proceedings commenced before the commencement of this clause.
Section 120, as amended by Schedule 5 [7] to the Courts Legislation Amendment Act 2001, applies to and in respect of all proceedings, whether finally determined before, on or after the commencement of that amendment.
(Repealed)
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