Summary procedure, justices (1844) (WA)

WESTERN AUSTRALIA.

ANNO SEPTIMO,

VICTORIA, REGINA,.

No. 12.

An Act to regulate summary proceedings

before JustieeS'df the Peace.

WHEREAS it is expedient to make provision for regulatingsummary.proceedings before Justices of the Peace in the

cases and in the manner hereinafter Mentioned—Be it there-

fore enacted by His Excellency the Governor of Western Aus- Proceedings before Sus.

tralia and its Dependencies, by and with the advice and consent tsinemmo f	thwortyP ecee in
bf the Legislative Council thereof, that from and after the passing of this Act in all ease's wherein by any Act or Acts heretofore Made and passed, or hereafter be Made and passed, any pro- ceeding Ms been Or shall be directed to be had or matter

authorised

8th Viet. No. 12. 1844.

authorized to be heard and determined by or before one Justice or any two or more Justices in a summary way, the course of any such proceeding, hearing, or determination, and the powers and authorities of such Justice or Justices in and about the same, shall be as hereinafter provid9d in all such particulars as to which no different or repugnant course or provision is or shall be contained in the Act or Acts under which such proceeding, hearing, or determination shall be had or made.

II. AND be it enacted, that in any such case as aforesaid it shall be lawful for any one Justice to receive the original Infor- mation or Complaint, and to issue a Summons or Summonses or Warrant requiring the appearance of the accused parties and any witnesses for the prosecution or defence before himself or before any one or more Justice or Justices, as the case may require, and upon the appearance of the accused, or his or her contempt by not appearing after having been duly summoned in manner hereinafter mentioned, and upon due proof of such summoning, it shall be lawful for such Justice or Justices, as the case may re- quire, to proceed and examine into, and hear and determine, the matter in a summary way, and examine upon oath all necessary witnesses produced, and give his or their judgment ; and in case such Justice or Justices shall convict the defendant and award against him or her any fine or pecuniary penalty, or other sum, and he or she shall neglect to pay the same fine, penalty, or sum, together with the costs and charges attending such conviction, to be assessed'and ascertained by the said Justice or Justices, into the hands of the said convicting Justice, or one of the said con- victing Justices (in case there shall have been more than one such Justice), forthwith or within such time as the said Justice or Justices in their discretion may order, without any previous de- mand of such penalty ()that than the oral award or order of such Justice or Justices, then it shall be lawful for such Justice or Justices, or either of them, or for any other Justice of the Peace, upon proof made to him of such default in payment, to cause such fine or penalty, and costs and charges, to be levied by distress and sale of the goods and chattels of the offender, the overplus, after deducting the charge of such distress and sale, to be ren-

now penalties, 80., to dered to the said offender—Provided that if upon the return of Imprisonment, the Officer charged with the execution of the said distress it shallbe levied, distress an d

appear that no sufficient distress can be found, then the convict- ing Justice or Justices, or either of them, or any other Justice of

1844.               8thVict. No. 12

the Peace, may by warrant commit such offender to one of Her Majesty's Gaols, there to remain and be imprisoned either simply or to be kept to hard labour in the discretion of such Justice for any time not exceeding the time hereinafter mentioned,—that is to say, not exceeding seven clear days when the whole sum to be levied or remaining unpaid, together with the costs, shall not ex- ceed Ten shillings ; for a term not

exceedinc, fourteen clear days, when the said sum and costs shall not exceed One pound ; for aa term not exceeding three calendar months when the said sum and costs shall not exceed Five pounds ; and for a term not exceed- ing six calendar months when the said sum and costs shall be of any greater amount ; unless in any such case of commitment the sum to be levied, together with the costs, shall be sooner paid.

III.      AND be it enacted, that it shall be lawful for such Jus- Power to detain till re-

tice or Justices, at his or their discretion, to order the offender so turn di tress, unless security

mad made to Irarrant of

convicted to be kept and detained in safe custody until return be given, &a.

shall be made to such warrant of distress, unless such offender

shall give sufficient security to the satisfaction of such Justice

or Justices for his or her appearance before him or them on such

day or days as shall be appointed for the return of such warrant

of distress, not being more than eight days from the time of

taking such security, and such security such Justice or Justices

is and are hereby empowered to take by way of recognizance or

otherwise, as to him or them shall seem proper, or in case it shall

appear to the satisfaction of such Justice or Justices, either by

the confession of the offender or otherwise, that he hath not

goods or chattels within the jurisdiction of such Justice or Jus-

tices sufficient whereon to levy all such fines, penalties or for-

feitures, costs and charges, such Justice or Justices may, at his

or their discretion, without issuing any warrant of distress, com-

mit the offender for such period of time and in such and like

manner as if a warrant of distress had been issued and a nulla

bona returned thereon.

AND be it enacted, that all sums of money which any person is bound to pay under any recognizance taken for any ap-	Recognizance may be
levied in like manner.
pearance before a Justice of the Peace and afterwards forfeited, in ease of non-payment thereof, may be levied by such Justice, with costs, by distress and sale of the goods and chattels of the person or persons liable to pay the same by warrant under the hand of such Justice in like manner as any fine or penalty may be levied by distress under this Act.

IV.

8th Viet, No. 12. 1844

AND be it enacted, that in all cases in which -ne 'ofhdr mode of proceeding shall have been or shall be in that behalf ,pro- vided, the directing of any Summons to or 'against any idersO► whatsoever (whether defendant or witness) in the name or nani6s by which he or she is or has been Usually known, whether the same be the real or the feigned or assumed name or names af such person, and the leaving of such Summons at his or her then or last usual place of abode, or the affixing a copy thereof on °tie of the doors or some other conspicuous part of the outside of such abode (such service being proved on the oath of the person so serving such Summons, and it being also proved in like manner to the satisfaction of the sitting Justice or Justices at the hearing of the case that the person so serving such summons -.lath en- deavoured to serve the same on the party personally but without effect, and that he verily believes that such party hath kept out of the way to avoid such service) shall be deemed to be a legal and effectual service on such party as fully to all intents and purposes as if the same Summons had been personally Served on such party, and as if the same had been directed in his or her proper and real names, and that every summons may direct the party to appear either before the Justice or Justices issuing the same, or before any one or more Justice or Justices generally,

Servico of summons. V.

the'ease may require (without naming any Justice), provided that such Summons shall direct the party so to appear at a reason- able time and place certain to be named in such Summons.

To regulate Appeals. VI.

AND be it enacted, that in all cases , in which by any Act of the Legislature of this Colony hereafter to be made and passed, any person shall be entitled to appeal from any judgment or conviction of any justice or justices, then if such person (in case a pecuniary penalty or compensation shall have been awarded) shall pay into the hands of the convicting Justice, Or one of the convicting Justices (as the case may be), the full amount of such penalty or compensation, together with the assessed costs and charges, and a sum not exceeding Ten pounds for costs of appeal forthwith, or within such time as the -said Justice or Justices in their discretion may order, or (in case no pecuniary penalty or compensation shall have been awarded) shall forthwith enter into a recognizance before the convicting Justice Or Justices, or any One Of them, to the use of Her Majesty, her heirs and successors, with two sufficient sureties, to be

proved by such Justice or Justices, in any SUM not exceeding

1844.                7th Viet. No. 12.

One Hundred Pounds, conditioned to prosecute such Appeal with- out effect, and to pay the full amount of all such costs as shall or may on such Appeal be awarded against the appealing party, and in either such ease of appeal shall give notice thereof in writing, and of his intention to Appeal, and also of his having entered into recogni- zance when necessary, to the proscuting party, at least six days be- fore the Sessions to be appealed to, then it shall be lawful for such person to appeal from such Judgment or Conviction to the next General Sessions of the Peace (unless such Sessions shall be held ti ithin six days next ensuing, and in that case to the General Ses- sions of the Peace next but one afterwards)—Provided always, that the convicting Justice or Justices, at his or their discretion, may within such time as aforesaid dispense with payment into Court of any such penalty, costs, and charges, and allow an Appeal on sufficient recognizances to his or their satisfaction, and on such notice being given as aforesaid—Provided also that the matter of such Appeal shall be heard and determined by the Justices assembled arid meeting at. a Court or adjourned Court of General Sessions of the Peace holden at such one of the places which shall or may be appointed for the regluar periodical holding of General Sessions of the Peace as shall happen to be the place (or nearest to the place) where the Judgment or Conviction appealed from shall have been had, and the Justices at such Sessions so assembled shall hear and thereupon finally determine the matter of every 'such appeal in a summary way, and their judg- ment thereon shall be final and conclusive to all intents and purposes, and such Justices at such Sessions so assembled are upon such Appeal hereby authorised to award inall cases such costs as to them shall appear proper to be paid by either party, and in case the Appeal shall be al- lowed,and the Conviction orJndgmentappealed from be gnus hell, then (in cases where a pecuniary penalty or compensation was awarded) the whole amount of such penalty, and the costs and charges aforesaid, shall be forthwith on demand returned to the party so appealing ; and in case of the dismissal of the Appeal, or the affirmance of the Conviction, they may order and adjudge the offender to be punished according to the Conviction, and may if necesasry issue process for enforcing such judgment.

VII. AND be it enacted, that if any person shall be summoned to witnesses not appearing

when Petiit

touching any of the matters aforesaid, and shall neglect to appear, or a

shall refuse to give evidence, at the time and place for that purpose

appointed, without a reasonable excuse for such neglect or refusal,

7th Viet. No. 12. 1844.

every such person shall for every such offence forfeit and pay a penalty or sum not exceeding Twenty pounds, and such penalty shall and may, on any such case of refusal, be forthwith awarded and adjudged by the Justice or Justices then sitting, and in case of such default of appearance, subh penalty shall and may be recover- able by proceeding before any one Justice of the Peace, who is hereby authorised to hear and determine such offence in a summary way, and every such penalty for any such refusal or neglect shall be levied and appropriated in the manner by this Act directed with respect to all other cases by this Act intended to be provided for.

VIII.      AND be it enacted, that where the evidence of any person

Persons wilfully keeping , ,

out of the way to avoid shall be required in any of the matters aforesaid, or when such

giving evidence may

apprehended and detain-be Justice or Justices shall have power only to make inquiry pre-

ed. liminary to a subsequent trial, and it shall be proved upon oath to the satisfaction of any Justice or Justices that the person whose evi- dence is required has been duly summoned, and wilfully neglects to appear, or that such person purposely keep out of the way to avoid beim" summoned, it shall be lawful for such Justice or Justices to issue his or their Warrants to any Peace Officer to apprehend and bring” before him or them such person wilfully neglecting to appear, or so keeping out of the way as aforesaid, and to detain him or her until he or she shall give his or her evidence, and in case of a preliminary enquiry further to detain such person until he or she shall give se- curity for his or her appearance as a witness in the Court where the subsequent trial is to be heard, or shall give his or her evidence at such trial.

Form of conviction. IX.

AND be it enacted, that in all cases (except when a par- ticular form of Judgment or Conviction shall have been, or shall be by any Act directed to be used in that. behalf) a Judgment or Con- viction in the form, or to the effect of the form (as the case shall happen to be), prescribed by the Schedule to the Act annexed, marked A, shall be good, valid, and effectual to all intents and pur- poses whatsoever, without setting forth or stating in any such Con- viction the name of any witness, or the particular place where the offence was committed, or whether the defendant appeared, or was or was not summoned to appear, and without setting forth any part of the evidence, or stating the facts in any further or more particular man- ner than shall be necessary to skew that the offence was one against the true intent and meaning of the Act creating such offence, and no summary Conviction whatsoever by any Justice or Justices of the

1844.                7th Viet. No. 12.

Peace, whether under this Act or any other Act, and whether a particular form shall have been or shall be in that behalf directed or not, shall be quashed in any case for any mere matter of form, or technical error or mistake in any name, or date, or title, or in any matter of description only, but in all cases regard shall be had alone to the substantial merits and justice of the case.

X.     AND be it enacted, that no such Conviction, Judgment, No certiorari, &c.'

Award, or determination or adjudication made on Appeal therefrom, shall be removed by Certiorari or otherwise into any of Her Ma- jesty's Superior Courts of Record in any case in which the convict- ing Justice or Court had jurisdiction in the subject matter ; and no Warrant of Commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been con- victed, and there be a good and valid conviction to sustain the same.

XI.     AND be it enacted, that every Justice before whom any Convictions to he trans-

offender shall be convicted, shall transmit the conviction to the next 1:ilotd	to Quarter set-	-
Court of General Sessions of the Peace, there to be kept by the proper Officer among the Records of the Court, and in any subse-
quent proceeding relative to such conviction, a copy thereof, certified
by the proper Officer of the Court under his hand, shall bit sufficient evidence to prove such conviction, and the conviction shall he pre- sumed to have been unappealed against until the contrary be shown.

XII. AND whereas doubts might arise as to the power of dis- Recognizances of persons ::troremndoeiretyn.g.havtehobse ecom foer

charging the recognizances of persons who have become bail for the

appearance of others to take their trial on any charge of Felony or bail may be discharged.

misdemeanor, where the persons so becoming bail are desirous of surrendering the persons for whose appearance they may have so become bail, be it enacted, that in every case where the person who may have become bail by recognizance for the appearance of any other person or persons as aforesaid, or either of them, shall prove upon oath to the satisfaction of the Justice or Justices before whom he entered into such recognizance that there is reasonable ground to believe that the person or persons for whose appearance the recognizance has been entered into will abscond and make de- fault, it , shall be lawful for such Justice or Justices, before the re- turn of the recognizance to the Court in which the trial is to be had, to receive from such bail, or either of them, the surrender of the person or persons for whose appearance bail has been so given, and by warrant to commit the person or persons so surrendered to the common gaol, there to await his or their trial in the same manner as

7th Viet. No. 12. 1844.

if such bail had never been given, and the said Justice or Justices shall return the said recognizance to the proper Court, with a memorandum thereon that the same has been discharged by the surrender of the party for whose appearance it was entered into— Provided always, that such recognizance may he discharged, and the party accused committed as aforesaid by the Civil Court in all cases where such Court shall see fit.

Distribution of penalties. pecuniary penalty of uncertain amount shall have been or shall be	XIII. AND be it enacted, that in all cases where by any Act a imposed, that is to say, a penalty or sum not exceeding a certain amount, or a penalty or sum of not less nor more than certain
amounts in that behalf respectively specified, the amount of every
such penalty (within the limits so prescribed) shall be in the discretion of the convicting Justice or Justices, and that every penalty awarded by such Justice or Justices shall in all cases (except when otherwise provided by any such Act, and except where the Informer or party prosecuting shall be examined as a Witness) go and be distributed one moiety thereof to the use of Her Majeity, Her Heirs and Suc- cessors, for the public uses of this Colony and the supp ort of the Government thereof, and the other moiety to the use of the Informer or party prosecuting, who shall also be in all cases entitled to his or her costs and charges over and above such penalty, to be ascertained and assessed as aforesaid.

?'or discouraging common XIV. PROVIDED that in order to discourage corrupt practices informers. b by common Informers, it shall be lawful for the Justice or majority

of the Justices before whom any conviction shall be had, although any part of a penalty shall be directed to be paid to the Informer by any Act, to adjudge that no part or such part only of the penalty as he or they shall think fit shall be paid to the Informer.

Powers given to one Jus- XV. AND whereas great inconvenience has been felt in several	lice residing in a remote •
district to hear and deter- instances from want of power in one Justice of the Peace residing in
mine cases. a remote district to adjudicate or act in cases in which the presence

of two or more Justices is required by law,—Be it enacted, that when and so often as any Justices of the Peace shall receive any Application, Information or Complaint touching any License, matter or proceeding in which by any Act now or hereafter to be in force in this colony any thing is directed to be granted, heard, de- termined, or done by or before two or more Justices of the Peace, and it shall so happen that no other Justice of the Peace is perma-

1844.            Ith Viet. No. 12.

nently resident, or can be found at the time within twenty miles from. the residence of the Justice receiving such Ap- plication, Information, or Complaint, then in such case it shall be lawful for .such last mentioned Justice to grant, hear, and • de- termine any such Licence, matter, or proceeding, and to do all things incident or collateral thereto respectively as fully and ef- fectually to all intents and purposes as any two or more Justices are or shall be by any such Act required or empowered to do

Provided that such Justice shall specially mention the fact of the Such Justice to mention

non-residence of any other Justice within the distance aforesaid that it .was done under theauthority of this Act.

in my License, Recognizance or Conviction made or taken by him, and that such License, Recognizance, Order or Conviction was made or taken by him. under and by virtue of the power and authority so given him by this Act—Provided further that no License , granted as aforesaid by any one Justice shall be valid if a License for the same purpose shall have been previously refused by any other Justice or Justices of the same District within which such granting Justice shall be resident.

XVI. AND be it enacted, that this Act, may , be amended or Act may be amended.

repealed by any Act to be passed during this present, session.

JOHN. HUTT,

GOVERNOR.

Passed the ColozOlthe 30th

day of May, 1844.

ED YARD C. So uTER,

Clerk of Council.

7th Viet. No. 12. 1844.

SCHEDULE A REFERRED TO IN THE ANNEXED ACT.

FORM OF JUDGMENT OR CONVICTION.

Western Australia "?. Be it remembered that on this day of

to wit. 518 , [name] of [place] was convicted before

me A B [or us A B and C D] one [two or more, as the case

may be] of Her Majesty's Justices of the Peace in and .for the

Colony of Western Australia, upon an Information in that benalf exhibited before [name of the justice or justices] on the day of now past by C D of in the said colony, for that on the day of [state the fact or offence in

respect of which the judgment or conviction is had] whereupon

I [or we] do in pursuance of the A ct in such case made and pro- vided for [state the principal subject of Act, or the title] award, order, and adjudge that [set forth the adjudication, and if award-

ing a penalty, as follows] the said (offender) do for such offence

(where necessary add being his or her second, or third, or subse-

quent offence, as the case may be) forfeit and pay the sum of

pounds, to go and be distributed as in and by the said

Act (or if such Act shall not have specifically provided for any

distribution of such penalty, here state the title of the Act

providing for distribution) is provided, besides the costs and

charges of and attending this conviction, which costs and charges I (or we) the said Justice (or justices) do hereby ascertain and assess at the sum of

Given under my hand and seal (or our hands and seals) the day and year first above mentioned.

Printed by authority of the Government, by E. Stirling, Perth.