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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
MAGISTRATES COURT (CRIMINAL AND
GENERAL DIVISION) BILL 2019
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Interpretation
5. Meaning of minor crime
6. Meaning of electable offence and elected summary offence
7. Bench justice
8. Bench justice may constitute Court
PART 2 - ESTABLISHMENT OF CRIMINAL AND GENERAL
DIVISION OF MAGISTRATES COURT
9. Establishment of Criminal and General Division
10. Composition of Court
PART 3 - JURISDICTION OF COURT
11. Jurisdiction of Court generally
12. Decision and procedure of Court constituted by 2 or more bench
justices
13. Jurisdiction of authorised justice
14. Lack of jurisdiction discovered during proceedings
[Bill 27]-XI
PART 4 - GENERAL PROCEDURE
Division 1 - Arrest, procedure following arrest and bail
15. Arrest warrant against defendant
16. Manner of issuing arrest warrant by district registrar or justice
17. Arrest warrant by Court
18. Procedure following arrest
Division 2 - Representation, evidence and attendance
19. Representation by legal practitioner, &c.
20. Attendance by audio or audio visual link
21. Order to attend
22. Failure to comply with order to attend
Division 3 - Witnesses and production of documents, &c.
23. Witness attendance notice
24. District registrar may amend witness attendance notice
25. Failure to comply with witness attendance notice
26. Dismissal of witness on undertaking
27. Expenses of witness
Division 4 - Miscellaneous
28. Hearing in absence of defendant or respondent
29. Setting aside order made in absence of defendant or respondent
30. Adjournment of proceedings
31. Procedure on adjournment in offence proceedings
32. Limitation on power of Court to admit defendant to bail
33. Power to remove or refer proceedings
34. Committing defendant on remand to secure mental health unit
35. Variation or revocation of order committing defendant to secure
mental health unit
36. Power to make ancillary order
37. Administrator may apply under Vexatious Proceedings Act 2011
38. Rules of court govern Court practice and procedure and practice
directions
2
PART 5 - COMMENCING PROCEEDINGS FOR SUMMARY
OFFENCE OR INDICTABLE OFFENCE
Division 1 - Commencing proceedings for summary offence or indictable
offence
39. Offences for which proceedings may be commenced in Court
40. Proceedings for summary offence or indictable offence
commenced by court attendance notice or charge sheet
41. Limitation on commencing proceedings for an offence under
Criminal Code Act 1924
Division 2 - Charge sheets
42. Form of charge sheet
43. Joinder of charges in charge sheet
44. Joinder of defendants in charge sheet
45. Filing and provision of charge sheet
46. Irregularity in, and amendment of, charge sheet
47. Removal of charge from charge sheet
48. Withdrawal of charge sheet
49. Defendant may obtain charge sheet
50. Relationship of this Part with other law
Division 3 - Court attendance notices
51. Court attendance notice issued to defendant by district registrar
52. Court attendance notice issued to defendant by prescribed
prosecutor
53. Duty of defendant to provide contact details
54. Failure to comply with court attendance notice
55. Form of court attendance notice
56. Withdrawal of court attendance notice
57. Notice taken to be court attendance notice
PART 6 - PRE-HEARING PROCEDURES RELATING TO OFFENCES
Division 1 - Interpretation of Part 6
58. Interpretation of Part 6
59. Meaning of record of interview
3
60. Meaning of prosecutor
Division 2 - Pre-hearing disclosure of prosecution case
61. Preliminary brief to be provided
62. Contents of preliminary brief
63. Summary offence brief to be provided
64. Contents of summary offence brief
65. Indictable offence brief to be provided
66. Contents of indictable offence brief
67. Continuing obligation of disclosure
68. Duty to allow viewing of audio-visual recording and certain
other documents and things
69. Limitation on disclosure of person's address
70. Limitation on disclosure of sensitive material
71. Effect of privilege and public interest immunity
72. Disclosure not required if information, &c., already provided
73. Consequences of non-disclosure
74. Common law disclosure requirements
75. Limitation on use of disclosed information, documents, other
things, and copies by defendant
Division 3 - Warning to defendant
76. Court to warn defendant of need for notice relating to admissible
opinion evidence
Division 4 - Pre-hearing disclosure of defence case
77. Disclosure relating to opinion evidence
Division 5 - Provision of information and documents to defendant
78. Providing information and documents to defendant
PART 7 - SUMMARY OFFENCE PROCEDURES
Division 1 - Interpretation of Part 7
79. Meaning of hearing
Division 2 - Commencing proceedings
80. Time limit for commencing proceedings for summary offence
4
Division 3 - First attendance of defendant and entering plea for summary
offence
81. First attendance
82. Entering plea
83. Notice of details of legal representation of defendant to be
provided following plea of not guilty
84. Procedure if defendant fails to attend before Court as required
Division 4 - Case management and case management hearings
85. Object of Division
86. Case management hearing
87. Obligation to be ready to commence case management hearing
88. Listing of case management hearing for earlier day
89. Order relating to case management hearing
90. Sentence indication
Division 5 - Miscellaneous
91. Review of progress of proceedings
92. Joinder of hearings
93. Charge sheet evidence in certain cases
94. Person other than defendant may also be guilty of summary
offence
95. Summary offences committed in pursuit of common purpose
96. Alternative verdicts of, or relating to, attempting to commit
summary offence, &c.
97. What constitutes offence of attempting to commit an offence
98. Attempts to commit summary offence triable summarily
PART 8 - INDICTABLE OFFENCES TRIABLE SUMMARILY AND
PROCEDURES
Division 1 - Minor crimes
99. Minor crimes triable summarily
100. Procedure relating to minor crime
Division 2 - Electable offences
101. Electable offence may be tried summarily
5
102. Procedure relating to electable offence
103. Court to warn defendant of need for alibi notice
104. Alibi evidence if elected summary offence
Division 3 - Miscellaneous
105. Attempts to commit minor crime or elected summary offence
106. Hearing under this Part
PART 9 - INDICTABLE OFFENCE PROCEDURES
107. First attendance before Court for indictable offence
108. Notice of details of legal representation of defendant to be
provided following first attendance
109. Attendance before Court for indictable offence following
adjournment
110. Entering plea
111. Failure to make election, &c.
112. Committal to Supreme Court
113. Proceedings following preliminary proceedings order by
Supreme Court
114. Prohibition on publishing preliminary proceedings
PART 10 - APPLICATION PROCEDURES
115. Interpretation of Part 10
116. Commencing application proceedings
117. Form of application
118. Affidavit accompanying application
119. Service of application made under section 116
120. Oral application
121. Conduct of application proceedings
122. Directions for modifying application of Act to application
proceedings
PART 11 - BREACH OF DUTY PROCEDURES
123. Procedure for breach of duty as if it were summary offence
124. Directions for modifying application of Act to breach of duty
6
PART 12 - APPEALS AND REVIEWS
Division 1 - Preliminary
125. Interpretation of Part 12
126. Non-application of Part
Division 2 - Appeals from bail orders made by authorised justice or one or
more bench justices
127. Appeals from bail orders made by authorised justice or one or
more bench justices
128. Procedure for commencing appeal
129. Procedure for hearing appeal
130. Power of Court on hearing appeal
Division 3 - Appeals from orders, other than bail orders, made by Court
constituted by authorised justice or one or more bench justices
131. Appeal from order, other than bail order, made by Court
constituted by authorised justice or one or more bench justices
132. Procedure for commencing appeal
133. Procedure for hearing appeal
134. Power of Court on hearing appeal
Division 4 - Appeals from bail orders made by magistrate
135. Appeals from bail orders made by magistrate
136. Procedure for commencing appeal
137. Procedure for hearing appeal
138. Power of Court on hearing appeal
Division 5 - Applications for review of orders by Court constituted by
magistrate
139. Review of order of Court constituted by magistrate
140. Duty of district registrar on application for review
141. Review applicant limited to grounds stated in application for
review
142. Interlocutory proceedings
143. Constitution of Supreme Court
144. Hearing of application for review
145. Determining application for review
7
146. Determination of application for review by new hearing
147. Appeals to Full Court from review
148. Bail where appeal to Full Court on review
149. Proceedings not to be quashed for want of form
150. Costs in relation to proceedings before Supreme Court
Division 6 - General provisions
151. Application to Court for interim relief
PART 13 - COSTS
152. Costs
153. Amount of costs
154. Procedure for assessing costs
155. Application of other Acts providing for costs
PART 14 - MISCELLANEOUS
156. Publication of proceedings
157. Powers in relation to goods in police custody
158. Exemption from fees, payment of fees by alternative person, &c.
159. Waiver, remission or refund of fee
160. Validity of Court order or document
161. Forms
162. Rules of court
163. Regulations
164. Administration of Act
165. Legislation repealed
166. Legislation rescinded
SCHEDULE 1 - MINOR CRIMES TRIABLE SUMMARILY
SCHEDULE 2 - CRIMES TRIABLE SUMMARILY ON ELECTION
SCHEDULE 3 - LEGISLATION REPEALED
SCHEDULE 4 - LEGISLATION RESCINDED
8
MAGISTRATES COURT (CRIMINAL AND
GENERAL DIVISION) BILL 2019
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
10 September 2019
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to establish a criminal and general division of the
Magistrates Court, to provide for the conduct of
proceedings in that division and to provide for related
matters
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Magistrates Court
(Criminal and General Division) Act 2019.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 27] 9
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 3 Part 1 - Preliminary
3. Objects of Act
The objects of this Act are to -
(a) establish the Magistrates Court (Criminal
and General Division); and
(b) provide for the administration of justice
in the Magistrates Court (Criminal and
General Division) in such manner as to -
(i) provide for enhanced access to
justice; and
(ii) facilitate the timely dispensing of
justice according to law; and
(iii) ensure that all proceedings are
conducted fairly; and
(iv) facilitate and improve the case
management of proceedings.
4. Interpretation
In this Act, unless the contrary intention
appears -
Administrator means the Administrator of the
Magistrates Court appointed under
section 16 of the Magistrates Court Act
1987;
affected person means a person upon or in
respect of whom a defendant is charged
with having committed one or more of
the following crimes:
10
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 4
(a) a crime under section 122, 124,
125, 125A, 125B, 125C, 125D,
126, 127, 129, 130, 133, 137,
158, 159, 170, 170A, 172, 178,
185, 186 or 189 of the Criminal
Code;
(b) a crime under section 127A of the
Criminal Code as in force
immediately before the
commencement of the Criminal
Code Amendment (Sexual
Assault) Act 2017 which repealed
that section;
(c) a crime under section 298, 299 or
300 of the Criminal Code in
relation to a crime specified in a
section referred to in
paragraph (a);
(d) a crime under section 4, 7 or 9 of
the Sex Industry Offences Act
2005 or an offence under section
8(2) of that Act;
(e) an offence under section 73 of the
Classification (Publications,
Films and Computer Games)
Enforcement Act 1995;
alleged offence means the offence that a
person is alleged, in a charge sheet, to
have committed;
approved means approved by the Chief
Magistrate;
11
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 4 Part 1 - Preliminary
arrest warrant means a warrant issued by the
Court, a magistrate, a justice or a district
registrar that requires a defendant or
other person to be arrested for the
purpose of bringing him or her before the
Court;
assessment of costs means an assessment of
costs under the rules of court;
authorised justice means a justice authorised
by the Chief Magistrate, under
section 13, to constitute the Court;
bail notice means a notice referred to in
section 5(1)(a) of the Bail Act 1994;
bench justice means a bench justice appointed
under section 7;
breach of duty means an act or omission -
(a) that is not a summary offence or
an indictable offence; but
(b) in respect of which the Court may
order a person to pay money or to
do, or refrain from doing, any
other act;
breach of duty order means an order made in
relation to an allegation of a breach of
duty;
case management hearing means a case
management hearing referred to in
section 86;
12
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 4
charge means an allegation of a summary
offence or an indictable offence or an
allegation of a breach of duty;
charge sheet means a charge sheet referred to
in section 40;
Chief Magistrate means the Chief Magistrate
appointed under section 5 of the
Magistrates Court Act 1987;
conviction includes a finding of guilt;
Court means the Magistrates Court (Criminal
and General Division);
court attendance notice means a notice -
(a) issued under section 51 or 52; or
(b) a notice issued under the rules of
court that, by reason of
section 57, is taken to be a court
attendance notice;
Court seal means -
(a) the seal of the Magistrates Court
designed and kept under section
16B of the Magistrates Court Act
1987; and
(b) any seal in the custody of a
district registrar under section
16B of the Magistrates Court Act
1987;
13
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 4 Part 1 - Preliminary
Court stamp means the stamp of the Court
bearing an imprint identical to the Court
seal;
defendant means a person in respect of whom
proceedings have been commenced under
this Act in relation to the commission of
an indictable offence, summary offence
or breach of duty;
Director means the Director of Corrective
Services appointed under section 5 of the
Corrections Act 1997;
district registrar means a district registrar
appointed under section 16A of the
Magistrates Court Act 1987;
district registry means a district registry of the
Magistrates Court established under
section 15A of the Magistrates Court Act
1987;
electable offence has the meaning given by
section 6;
elected summary offence has the meaning
given by section 6;
electronic communication has the same
meaning as in the Electronic
Transactions Act 2000;
family violence order means -
(a) an FVO made under section 16 of
the Family Violence Act 2004; or
14
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 4
(b) an external family violence order
registered under section 27 of the
Family Violence Act 2004; or
(c) an interstate DVO, within the
meaning of the Domestic
Violence Orders (National
Recognition) Act 2016; or
(d) a registered foreign order, within
the meaning of the Domestic
Violence Orders (National
Recognition) Act 2016;
filed means filed with a district registry;
first attendance, in relation to the attendance
of a defendant before the Court, means
the first attendance before the Court
constituted by a magistrate;
indictable offence means an offence which
may be prosecuted upon indictment
before the Supreme Court;
interim family violence order means an
interim FVO made under section 23 of
the Family Violence Act 2004;
interim restraint order means an order made
under section 12 or 13 of the Restraint
Orders Act 2019;
justice means a person who holds the office of
Justice of the Peace in accordance with
an appointment to that office under
15
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 4 Part 1 - Preliminary
section 5 of the Justices of the Peace Act
2018;
legal practitioner means an Australian legal
practitioner within the meaning of the
Legal Profession Act 2007;
legal representative, in relation to a person,
means the legal practitioner representing
the person in proceedings under this Act;
magistrate has the same meaning as in the
Magistrates Court Act 1987;
Magistrates Court means the Magistrates
Court of Tasmania established by section
3A of the Magistrates Court Act 1987;
Magistrates Rule Committee means the
Magistrates Rule Committee continued
by section 15AC of the Magistrates
Court Act 1987;
minor crime has the meaning given by
section 5;
order to attend means an order made under
section 21;
party means -
(a) the prosecutor or defendant in
relation to proceedings for an
offence; and
(b) the applicant or respondent in
relation to proceedings on an
application; and
16
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 4
(c) the appellant or respondent in
relation to proceedings on an
appeal;
police family violence order means a PFVO
made under section 14 of the Family
Violence Act 2004;
practice directions means practice directions
issued by the Chief Magistrate under
section 15AA of the Magistrates Court
Act 1987 in respect of this Act;
preliminary proceedings means proceedings
conducted by the Court under Part 9 in
accordance with a preliminary
proceedings order;
preliminary proceedings order means an
order of the Supreme Court made under
section 331B(2)(b) of the Criminal Code
that requires the giving of evidence on
oath in preliminary proceedings;
prescribed means prescribed by this Act, the
regulations or the rules of court;
prescribed prosecutor means a person referred
to in section 42(2)(c), (d), (e), (f) or (g);
private prosecutor means a person referred to
in section 42(2)(a) or (b);
process means any document required to be
filed, issued, given, provided or served
under this or any other Act or under an
Act of the Commonwealth;
17
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 4 Part 1 - Preliminary
prosecutor means a person or body that -
(a) is entitled to sign a charge sheet
under section 42(2); or
(b) commences, or is responsible for
the conduct of, the prosecution of
an offence;
public officer means -
(a) a police officer; or
(b) a person employed in any
capacity in the public service of
this State, another State, a
Territory or the Commonwealth;
or
(c) a person employed in any
capacity in a statutory authority;
or
(d) a person employed in any
capacity in a council; or
(e) a person employed in any
capacity in or by a Government
Business Enterprise, within the
meaning of the Government
Business Enterprises Act 1995; or
(f) a person employed in any
capacity in or by a State-owned
company;
regulations means the regulations made and
in force under this Act;
18
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 4
restraint order means an order made under
section 6 of the Restraint Orders Act
2019;
return day means -
(a) in relation to proceedings for an
offence, the day on which a
defendant is required to attend
before the Court as specified in a
court attendance notice or bail
notice; or
(b) in relation to any other
proceedings, the day on which a
party is required to attend before
the Court or on which a hearing
on any matter, other than an
offence, is to be held;
rules of court means the rules of court made
by the Magistrates Rule Committee
under section 15AE of the Magistrates
Court Act 1987 for the purposes of the
Court in relation to proceedings under
this Act;
sealed means -
(a) sealed with the Court seal; or
(b) stamped with the Court stamp;
sentence indication means an indication,
given by the Court under section 90(2),
of the sentence that the Court would
19
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 4 Part 1 - Preliminary
impose on a defendant if the defendant
pleaded guilty;
State-owned company means a company
established under the Corporations Act,
the members of which are Ministers of
the Crown and the beneficial ownership
of which rests with the Crown;
statutory authority means an incorporated or
unincorporated body which is
established, constituted or continued by
or under an Act of this State, another
State, a Territory or the Commonwealth
or under the royal prerogative, being a
body which, or of which the governing
authority, wholly or partly comprises a
person or persons appointed by -
(a) the Governor of this State or
another State; or
(b) the Administrator of a Territory;
or
(c) the Governor-General; or
(d) a Minister of the government of
this or another State, a Territory
or the Commonwealth; or
(e) another statutory authority;
summary offence means -
(a) an offence that is punishable on
summary conviction; or
20
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 5
(b) an indictable offence that is, by
reason of section 99 or 101, taken
to be a summary offence;
witness attendance notice means -
(a) a notice issued under section 23;
or
(b) a witness attendance notice as
amended under section 24.
5. Meaning of minor crime
In this Act, a reference to a minor crime is a
reference to an offence referred to in section 99
that is taken to be a summary offence by reason
of that section unless, and until, the Court
determines that the offence is to be dealt with by
the Supreme Court.
6. Meaning of electable offence and elected summary
offence
(1) In this Act, a reference to an electable offence is
a reference to -
(a) an offence referred to in section 101(1),
(3) or (4) in respect of which the
defendant may elect to have the offence
dealt with by the Court or by the
Supreme Court; or
(b) an indictable offence under another Act
in respect of which that other Act
provides that -
21
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 6 Part 1 - Preliminary
(i) the defendant may elect to have
the offence dealt with by the
Court; or
(ii) the Court may determine that the
offence is to be dealt with by the
Court, whether or not the Court
may only make that
determination with the consent or
agreement of a person or in
specified circumstances.
(2) In this Act, a reference to an elected summary
offence is a reference to -
(a) an offence referred to in subsection (1)(a)
in respect of which the defendant has
elected under section 107(4) or
section 109(1) to have the offence dealt
with by the Court, or is taken to have
made such an election by reason of
section 111; or
(b) an indictable offence referred to in
subsection (1)(b) in respect of which the
defendant has elected to have the offence
dealt with by the Court; or
(c) an indictable offence referred to in
subsection (1)(b) in respect of which the
Court has determined that the offence be
dealt with by the Court until the Court,
under a provision of the Act providing
the power to make the determination,
determines that the offence be dealt with
by the Supreme Court.
22
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 1 - Preliminary s. 7
7. Bench justice
(1) The Chief Magistrate, by instrument in writing,
may appoint a person who is a justice as a bench
justice.
(2) An appointment has effect for the period
specified in it unless sooner revoked.
(3) The Chief Magistrate may vary, suspend or
revoke an appointment.
(4) A variation, suspension or revocation of an
appointment must be in writing.
(5) An appointment is revoked if -
(a) the bench justice ceases to be a justice; or
(b) the appointment is revoked by the Chief
Magistrate.
(6) The Chief Magistrate may -
(a) reinstate a suspended appointment; or
(b) reappoint a person whose appointment
has been revoked by the Chief Magistrate
if that person is a justice.
8. Bench justice may constitute Court
A bench justice may constitute the Court in
accordance with this Act.
23
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 9 Part 2 - Establishment of Criminal and General Division of Magistrates
Court
PART 2 - ESTABLISHMENT OF CRIMINAL AND
GENERAL DIVISION OF MAGISTRATES COURT
9. Establishment of Criminal and General Division
(1) There is established a division of the Magistrates
Court to be known as the Magistrates Court
(Criminal and General Division).
(2) The jurisdiction conferred on the Court by this
Act and any other Act is to be exercised solely
within the Criminal and General Division of the
Magistrates Court established by subsection (1).
10. Composition of Court
The Court may be constituted by -
(a) a single magistrate; or
(b) one or more bench justices; or
(c) a single authorised justice.
24
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 3 - Jurisdiction of Court s. 11
PART 3 - JURISDICTION OF COURT
11. Jurisdiction of Court generally
(1) The Court has jurisdiction -
(a) to hear and determine a charge for a
summary offence; and
(b) to hear and determine a charge for a
breach of duty; and
(c) to conduct preliminary proceedings; and
(d) to hear and determine a charge for an
indictable offence that is to be heard
summarily in accordance with this or any
other Act; and
(e) to hear and determine all applications
and all other matters required or
permitted to be made to the Court under
this or any other Act or under the rules of
court; and
(f) to hear and determine appeals under
section 131; and
(g) to hear and determine proceedings
relating to bail, except as otherwise
provided under this Act or any other Act;
and
(h) to make orders incidental or ancillary to
the exercise of its jurisdiction.
25
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 11 Part 3 - Jurisdiction of Court
(2) Despite subsection (1), the Court when
constituted by one bench justice sitting alone
may exercise jurisdiction only in the following
proceedings and matters:
(a) subject to this or any other Act,
proceedings relating to bail under this or
any other Act;
(b) adjourning proceedings under this Act;
(c) preliminary proceedings;
(d) proceedings relating to the making,
variation or extension of an interim
restraint order;
(e) the making of an interim family violence
order or proceedings to vary or extend an
interim family violence order;
(f) proceedings for the variation or extension
of a family violence order;
(g) other proceedings or matters prescribed
by the rules of court.
(3) Despite paragraphs (d), (e) and (f) of
subsection (2), if the Court constituted by one
bench justice sitting alone exercises jurisdiction
under any of those paragraphs to make, vary or
extend an interim restraint order, an interim
family violence order or a family violence order,
or adjourns proceedings relating to any such
order -
26
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 3 - Jurisdiction of Court s. 12
(a) the interim restraint order or interim
family violence order made by the Court,
or variation or extension by the Court of
the interim restraint order, interim family
violence order or family violence order,
has effect for the period specified by the
Court; and
(b) the Court is to specify a day on which the
matter is to be brought before the Court
constituted by a magistrate, being a day
not later than the expiration of the period
referred to in paragraph (a) of this
subsection.
(4) Despite subsection (1), the Court when
constituted by an authorised justice may exercise
jurisdiction -
(a) only as specified in section 13; and
(b) subject to the conditions of his or her
appointment as an authorised justice.
12. Decision and procedure of Court constituted by 2 or
more bench justices
When 2 or more bench justices constitute the
Court at a hearing, the decision of the majority is
the decision of the Court but, if the bench
justices are equally divided in opinion, the bench
justices present, or a majority of them, may -
(a) dismiss the case; or
27
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 13 Part 3 - Jurisdiction of Court
(b) adjourn the case for a rehearing with
additional bench justices, by other bench
justices or by a magistrate sitting alone.
13. Jurisdiction of authorised justice
(1) The Chief Magistrate, by instrument in writing,
may authorise -
(a) a particular justice who is a member of
the Court's staff; or
(b) justices of a class of justices who are
members of the Court's staff -
to constitute the Court.
(2) An authorisation -
(a) has effect for the period specified in it;
and
(b) is subject to any conditions specified in
it.
(3) A justice authorised under subsection (1) may do
one or more of the following:
(a) adjourn to a later date proceedings before
the Court;
(b) if the prosecutor consents, admit the
defendant to bail;
(c) if the defendant has attended before the
Court in accordance with his or her bail,
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Magistrates Court (Criminal and General Division) Act 2019
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Part 3 - Jurisdiction of Court s. 14
continue that bail to the date to which the
proceedings are being adjourned;
(d) where the Court continues a defendant's
bail and both the defendant and the
prosecutor consent to a variation of the
conditions to which that bail is subject,
vary those conditions.
(4) An authorisation is revoked if -
(a) the justice ceases to be a justice; or
(b) the justice ceases to be a member of the
Court's staff; or
(c) the authorisation is revoked by the Chief
Magistrate.
(5) The Chief Magistrate may vary or revoke an
authorisation.
(6) A variation or revocation of an authorisation
must be in writing.
14. Lack of jurisdiction discovered during proceedings
(1) If, in the course of any proceeding, the Court
when constituted by a magistrate finds that it
does not have jurisdiction to hear and determine
the proceeding, the Court may -
(a) remove the proceeding to a court of
competent jurisdiction; or
(b) where the court of competent jurisdiction
may be constituted by a magistrate,
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Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 14 Part 3 - Jurisdiction of Court
continue to hear and determine the
proceeding as the court of competent
jurisdiction.
(2) If, in the course of any proceeding, the Court
when constituted otherwise than by a magistrate
finds that it does not have jurisdiction to hear
and determine the proceeding, the Court must
transfer the proceeding to the Court constituted
by a magistrate.
(3) In transferring proceedings to another court
under subsection (1) or (2), the Court may -
(a) give directions as it considers necessary;
and
(b) take or make any procedural action or
order that could be taken or made by the
court to which the proceeding is being
transferred.
30
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 15
PART 4 - GENERAL PROCEDURE
Division 1 - Arrest, procedure following arrest and bail
15. Arrest warrant against defendant
(1) A police officer may apply to a district registrar
or justice, in an approved form, for the issue of
an arrest warrant against a defendant.
(2) On receiving, in support of an application under
subsection (1), a charge sheet, the district
registrar or justice may issue an arrest warrant
against the defendant -
(a) if satisfied that the issue of the warrant is
reasonably likely to -
(i) ensure the attendance of the
defendant before the Court in
respect of the offence; or
(ii) prevent a repetition or
continuation of the offence; or
(iii) prevent the harassment of, or
interference with, a person who
may be required to give evidence
in respect of the offence; or
(iv) prevent the fabrication of
evidence in respect of the
offence; or
(v) preserve the safety or welfare of
any person; or
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Magistrates Court (Criminal and General Division) Act 2019
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s. 16 Part 4 - General Procedure
(vi) prevent the concealment, loss or
destruction of evidence relating
to the commission of an offence;
or
(b) if satisfied that it is in the interests of
justice to do so.
(3) The district registrar or justice is to refuse to
issue the arrest warrant if not satisfied as
required in subsection (2).
16. Manner of issuing arrest warrant by district
registrar or justice
(1) A police officer may apply to a district registrar
or justice for an arrest warrant in person or by
use of electronic communication.
(2) A district registrar or justice to whom an
application is made under subsection (1) may
issue an arrest warrant in person or by use of
electronic communication.
(3) A paper that has been produced by, or directly
from, the electronic communication of an arrest
warrant to a police officer is taken to be the
warrant.
17. Arrest warrant by Court
The Court may issue an arrest warrant against a
defendant at any time after proceedings against
the defendant have commenced.
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Magistrates Court (Criminal and General Division) Act 2019
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Part 4 - General Procedure s. 18
18. Procedure following arrest
(1) For the purposes of this section -
arrest means -
(a) arrest under an arrest warrant
issued under this Act or any other
Act, or arrest without warrant
under any Act or other legal
authority, for the purpose of
bringing a person before the
Court in relation to a charge for
an offence; or
(b) take into custody to facilitate the
making of an application for a
protective order;
person to be protected means a person for
whose benefit a protective order is sought
or was made;
person to be restrained means -
(a) a person who is, or is to be, taken
into custody to facilitate the
making of an application for a
protective order, other than a
police family violence order; or
(b) a person who, after having been
taken into custody as specified in
paragraph (a) and released on bail
under section 4E of the Bail Act
1994, is arrested under section
5(5A) of that Act; or
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s. 18 Part 4 - General Procedure
(c) a person who is taken into
custody in respect of an alleged
protective order offence;
protective order means a family violence
order, interim family violence order,
police family violence order, restraint
order or interim restraint order;
protective order offence means an offence
consisting of a contravention of a family
violence order, interim family violence
order, police family violence order,
restraint order or interim restraint order.
(2) If a person is arrested and then brought before
the Court (the arrested person), the Court must
determine whether there is alleged against that
person, in the charge sheet or application for a
protective order, an act or omission that would
constitute an offence or grounds for making a
protective order.
(3) If the Court determines that an allegation of a
kind referred to in subsection (2) has not been
made, the Court must release the arrested person.
(4) If the Court determines that an allegation of a
kind referred to in subsection (2) has been made,
the Court -
(a) must cause the charge or application for a
protective order to be read to, or
explained in simple terms to, the arrested
person unless the arrested person is
represented by a legal practitioner; and
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Magistrates Court (Criminal and General Division) Act 2019
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Part 4 - General Procedure s. 18
(b) in the case of an application for a
protective order, may make a protective
order under the Family Violence Act
2004 or the Restraint Orders Act 2019;
and
(c) must ask the arrested person whether he
or she wishes to apply for bail unless the
only matter before the Court is an
application for a protective order and
such an order is made.
(5) If the arrested person wishes to apply for bail
and the proceedings are to be adjourned, the
Court -
(a) in the case of an application for a
protective order, is to proceed under
section 21 of the Restraint Orders Act
2019 or section 25A of the Family
Violence Act 2004, as appropriate; or
(b) in every other case -
(i) admit the arrested person to bail;
or
(ii) refuse to admit the arrested
person to bail and remand him or
her in custody to a time and day
specified by the Court.
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s. 19 Part 4 - General Procedure
Division 2 - Representation, evidence and attendance
19. Representation by legal practitioner, &c.
(1) Subject to this and any other Act, a party may
conduct a prosecution of his or her case, and
examine and cross-examine witnesses -
(a) in person; or
(b) by a legal practitioner.
(2) If a party is represented by a legal practitioner
and this Act requires anything to be done by that
party, or any document or other thing to be
served on or otherwise provided or made
available to that party -
(a) that thing, if appropriate, may be done by
the legal practitioner; and
(b) that document or other thing may be
served on or otherwise provided or made
available to the legal practitioner.
20. Attendance by audio or audio visual link
(1) In this section -
audio link has the same meaning as in the
Evidence (Audio and Audio Visual Links)
Act 1999;
audio visual link has the same meaning as in
the Evidence (Audio and Audio Visual
Links) Act 1999.
36
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 21
(2) On the application of a party or witness in
proceedings or on the Court's motion, and
subject to the Evidence (Audio and Audio Visual
Links) Act 1999 and the Evidence (Children and
Special Witnesses) Act 2001, the Court may
direct that a party or witness, or another person,
attend before, or attend proceedings of, the Court
by audio link or audio visual link.
(3) In determining whether to direct that a person
attend before, or attend proceedings of, the Court
by audio link or audio visual link, the Court is to
take into account -
(a) the difficulty involved in the person
appearing before, or attending at, the
Court in person; and
(b) whether the interests of justice would be
detrimentally affected by allowing, or
refusing to allow, the person to attend
before, or attend the proceedings of, the
Court by audio link or audio visual link.
21. Order to attend
The Court may make an order requiring a party
to proceedings to do one or more of the
following on the day, and at the time and place,
specified in the order:
(a) attend before the Court;
(b) if the party is not a defendant in the
proceedings, produce to the Court a
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Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 22 Part 4 - General Procedure
document or other thing in the possession
or under the control of that party.
22. Failure to comply with order to attend
(1) A party to proceedings who -
(a) was present before the Court when an
order to attend was made; or
(b) has been served with an order to attend -
must not fail or refuse to comply with the order
to attend without reasonable excuse.
(2) The Court may issue an arrest warrant against a
party to proceedings if -
(a) the party fails or refuses to comply with
an order to attend; and
(b) a reasonable excuse for that failure or
refusal to comply with the order to attend
has not been provided to the Court; and
(c) the Court is satisfied that -
(i) the party was present before the
Court when the order to attend
was made; or
(ii) the order to attend has been
served on the party; or
(iii) although the party was not
present before the Court when the
order to attend was made and the
38
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 23
order to attend has not been
served on the party, all
reasonable steps have been taken
to so serve it.
(3) When a party to proceedings is brought before
the Court under an arrest warrant issued under
this section, the Court may -
(a) make a further order to attend in relation
to the party and release him or her; or
(b) admit the party to bail; or
(c) refuse to admit the party to bail and
remand him or her in custody to a time
and day specified by the Court.
Division 3 - Witnesses and production of documents, &c.
23. Witness attendance notice
(1) A notice to a person, other than a party to
proceedings, requiring him or her to do one or
more of the following may be issued as specified
in this section:
(a) to appear as a witness before the Court
on the day, and at the time and place,
specified in the notice;
(b) to produce to the Court, on the day, and
at the time and place, specified in the
notice, a document or other thing in the
possession or under the control of the
person.
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Magistrates Court (Criminal and General Division) Act 2019
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s. 23 Part 4 - General Procedure
(2) A notice under subsection (1) may be issued -
(a) if the Court requires the attendance of the
person or the production of a document
or other thing, or both, or otherwise
considers it appropriate to issue the
notice - by the Court; or
(b) if a private prosecutor requires the
attendance of the person or the
production of a document or other thing,
or both, and is not represented by a legal
practitioner - by the Court or a district
registrar; or
(c) in any other case, by a justice or a district
registrar.
(3) Without limiting the matters that the Court or
district registrar may consider when considering
whether to issue to a person a notice under this
section on the application of a party, other than a
public officer, who is not represented by a legal
practitioner, the Court or district registrar may
consider any of the following matters:
(a) whether the person may have relevant
evidence to give;
(b) whether the person may have a relevant
document or other thing in his or her
possession or under his or her control;
(c) whether the person may incur
unreasonable hardship by attending the
Court.
40
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 24
(4) A notice issued to a person under this section -
(a) if issued by the Court under
subsection (2)(a), is to be served on the
person by the person specified by the
Court; or
(b) if issued by the Court or a district
registrar under subsection (2)(b) at the
request of a private prosecutor who is not
represented by a legal practitioner, by the
private prosecutor; or
(c) if issued under subsection (2)(c) by a
justice or district registrar at the request
of a party to the proceedings, by that
party.
(5) If the Court is satisfied by evidence given on
oath that it is probable that a person to whom a
notice under this section may be issued will not
attend the Court to give evidence, produce a
document or other thing, or both, the Court,
instead of issuing such a notice, may issue an
arrest warrant against the person.
24. District registrar may amend witness attendance
notice
If -
(a) a witness attendance notice has been
issued to a person; and
(b) for any reason it is necessary to amend
the day, time or place specified in the
41
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Act No. of 2019
s. 25 Part 4 - General Procedure
notice for the attendance before the Court
of the person as a witness or the
production of a document or other thing,
or both -
a district registrar may issue an amended witness
attendance notice to the person.
25. Failure to comply with witness attendance notice
(1) A person, without reasonable excuse, must not
fail or refuse to comply with a witness
attendance notice.
Penalty: Fine not exceeding 5 penalty units.
(2) The Court may issue an arrest warrant against a
person if -
(a) the person fails or refuses to comply with
a witness attendance notice; and
(b) a reasonable excuse for that failure or
refusal to comply with the witness
attendance notice has not been presented
to the Court; and
(c) the Court -
(i) is satisfied that the witness
attendance notice has been served
on the person; or
(ii) although the witness attendance
notice has not been served on the
person, is satisfied that all
reasonable steps have been taken
42
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 26
to so serve the notice and that the
person has deliberately avoided
service of the notice.
(3) When a person arrested under an arrest warrant
issued under this section is brought before the
Court, the Court may -
(a) order the person to attend before, or to
produce a document or thing to, the
Court, or both, on the day, and at the
time and place, specified in the order and
release him or her; or
(b) admit the person to bail; or
(c) refuse to admit the person to bail and
remand him or her in custody to a day,
time and place specified by the Court.
(4) An order under subsection (3)(a) has the same
effect as a witness attendance notice.
26. Dismissal of witness on undertaking
(1) In this section -
witness includes a person who is to give
evidence as a witness.
(2) A witness may be dismissed on giving an
undertaking to the Court.
(3) An undertaking is to be in the terms, and is
subject to the conditions, determined by the
Court.
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Act No. of 2019
s. 26 Part 4 - General Procedure
(4) Without limiting the generality of subsection (3),
the Court may determine that the undertaking is
subject to a condition that -
(a) the witness must deposit with the Court a
specified amount of money to be
forfeited to the Crown if the witness fails
to attend before the Court as required by
the undertaking or otherwise fails to
comply with a condition of the
undertaking; or
(b) one or more suitable persons (other than
the witness) must also enter into an
undertaking, as determined by the Court,
to forfeit a specified amount of money if
the witness fails to attend before the
Court as required by his or her
undertaking or otherwise fails to comply
with a condition of his or her
undertaking.
(5) An undertaking given under subsection (2) or
subsection (4)(b) may require a witness or
suitable person to give security in the terms or in
the manner required by the Court so as to better
secure compliance with the undertaking.
(6) If the witness who has entered into an
undertaking does not attend on the day, and at
the time and place, specified in the undertaking,
the Court may adjourn the hearing and may issue
an arrest warrant against the witness.
(7) If a witness, or any suitable person referred to in
subsection (4)(b), refuses to enter into an
44
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
Part 4 - General Procedure s. 27
undertaking when required to do so under this
section, the Court may order that the witness be
remanded in custody to a time and day specified
by the Court or until after the trial of the
defendant unless, in the meantime, the witness or
suitable person enters into the required
undertaking before the Court.
27. Expenses of witness
(1) In this section -
witness includes a person who is to give
evidence as a witness.
(2) A party to proceedings, other than a public
officer, is liable to pay the expenses of a person
if -
(a) that party has required the attendance
before the Court of the person as a
witness, or the provision of a document
or other thing by the person to the Court,
or both, by the issue of a witness
attendance notice; and
(b) that party would be liable to pay those
expenses had the proceeding been a
criminal proceeding within the meaning
of the Criminal Procedure (Attendance
of Witnesses) Act 1996.
(3) Subsection (2) applies whether or not an order
may be, or is, made for the payment of the costs
of a party to proceedings (including witnesses'
expenses) by another party.
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Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 27 Part 4 - General Procedure
(4) Before the conclusion of proceedings under this
Act -
(a) a party may ask the Court to fix the
expenses of any person for which the
party is liable under subsection (2); and
(b) the Court, on that application, may make
an order so fixing those expenses in
accordance with the scale for the time
being prescribed for the purposes of
section 17 of the Criminal Procedure
(Attendance of Witnesses) Act 1996 or
refuse to make such an order.
(5) If -
(a) the Court reasonably believes that a
witness who has given evidence before
the Court or produced any documents or
other things to the Court in any
proceedings, or both, has -
(i) attempted to evade service of a
witness attendance notice for that
purpose; or
(ii) failed to attend before, or produce
a document or other thing to, the
Court in compliance with a
witness attendance notice served
on the witness or of which the
witness had knowledge, or in
compliance with an undertaking;
or
46
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Part 4 - General Procedure s. 27
(b) the Court considers the conduct or
demeanour of a person when attending
before it is unsatisfactory or improper -
the Court may fix less expenses to be paid to the
person than it would otherwise fix under this
section or may refuse to make an order fixing the
expenses to be paid to that person.
(6) If under subsection (2) a party to proceedings is
liable to pay a person a reasonable amount or as
much as the person deserves for expenses, an
order under subsection (4) is conclusive of the
amount.
(7) A public officer who is a party to proceedings
may, at or after the hearing -
(a) obtain an order under subsection (4) as if
he or she were personally liable to the
persons whose attendance at the
proceeding he or she has required; and
(b) in the case of an indictable offence, have
included in that order the expenses of any
person who might be entitled under
section 17 of the Criminal Procedure
(Attendance of Witnesses) Act 1996 as if
he or she were personally liable to that
person for the expenses.
(8) A person whose expenses are fixed by an order
under subsection (4) obtained by a public officer
pursuant to subsection (7) is entitled to payment
by the Secretary of the Department of the
amount so fixed, out of money provided by
Parliament for the purpose, on the making and
47
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
s. 28 Part 4 - General Procedure
verification of a claim as directed by the
Attorney-General.
(9) Payment under subsection (8) is taken as
satisfaction of an entitlement under section 17 of
the Criminal Procedure (Attendance of
Witnesses) Act 1996 in respect of the same
attendance of a person.
(10) This section does not affect the operation of
Part 13 and the Court is not bound to make the
amount, which a person is entitled to receive
under this section from the party to proceedings
who required his or her attendance, the same as
the amount which it allows under that Part
against the party.
Division 4 - Miscellaneous
28. Hearing in absence of defendant or respondent
(1) Except as otherwise provided by this Act or
another Act or by the rules of court, a charge for
an offence or an application may only be heard
and determined in the presence of -
(a) the defendant or respondent; or
(b) his or her legal representative; or
(c) both the defendant, or respondent, and
his or her legal representative.
(2) The Court may hear and determine a charge for
an offence in the absence of the defendant or his
or her legal representative, or both, if -
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Magistrates Court (Criminal and General Division) Act 2019
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Part 4 - General Procedure s. 28
(a) the defendant does not attend and the
Court is satisfied that the defendant has
been served with a court attendance
notice and provided with a charge sheet;
or
(b) the defendant is the subject of bail in
relation to the charge and does not
attend; or
(c) the Court has required the removal of the
defendant, or has ordered that the
defendant not attend the Court, because
of the behaviour of the defendant in the
courtroom or adjacent areas.
(3) The Court, under subsection (2), may hear and
determine a charge for an offence whether or not
the procedure under section 93 applies.
(4) Subject to a contrary provision in any other Act,
the Court may hear and determine any
application in the absence of the respondent or
his or her legal representative, or both, and
whether or not the application has been served
on the respondent, if the Court determines that it
is appropriate to do so.
(5) In hearing and determining a charge for an
offence or an application in the absence of the
defendant or respondent or his or her legal
representative, or both, the Court may receive
evidence orally, by affidavit or by a combination
of those means.
(6) The Court, after finding a defendant guilty of a
charge for an offence in his or her absence, may
49
Magistrates Court (Criminal and General Division) Act 2019
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s. 29 Part 4 - General Procedure
issue an arrest warrant against the defendant for
the purpose of bringing him or her before the
Court for sentencing.
(7) The Court, after finding a defendant guilty of a
charge for an offence in his or her absence, may
sentence the defendant in the absence of the
defendant or his or her legal representative, or
both, only if the Court is intending to impose a
sentence referred to in section 7(e), (g) or (h) of
the Sentencing Act 1997.
(8) Except as provided in subsection (7), the Court,
after finding a defendant guilty of a charge for
an offence in his or her absence, may not make
an order or proceed under section 7 of the
Sentencing Act 1997 until the defendant is
present before the Court.
29. Setting aside order made in absence of defendant or
respondent
(1) In this section -
administrative sanction means an
administrative sanction imposed under
Part 6 of the Monetary Penalties
Enforcement Act 2005;
civil sanction means a civil sanction imposed
under Part 7 of the Monetary Penalties
Enforcement Act 2005;
enforcement order has the same meaning as
in the Monetary Penalties Enforcement
Act 2005;
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relevant order means an order made, in
accordance with section 28, in the
absence of a defendant or respondent;
relevant proceedings means the proceedings
that resulted in the relevant order.
(2) A reference in this section -
(a) to a prosecutor or defendant is a
reference to the prosecutor or defendant
in the proceedings in respect of which the
relevant order was made; and
(b) to an applicant or respondent is a
reference to the applicant or respondent
in the proceedings in respect of which the
relevant order was made.
(3) The Court may set aside a relevant order on its
own motion or on the application of a party to
the relevant order.
(4) An application to set aside a relevant order is to
be -
(a) made in writing; and
(b) filed with a district registrar of the
district registry where the relevant order
was made.
(5) After filing an application to set aside a relevant
order, the applicant is to serve a copy of the
application on the other party unless the other
party is not in the State or is unable to be served
for any reason.
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(6) The Court may only set aside a relevant order if
satisfied that it is in the interests of justice to do
so -
(a) if the Court is acting on the application
of the defendant or respondent in the
relevant proceedings, that the defendant
or respondent -
(i) has provided valid and relevant
reasons for his or her failure to
attend the relevant proceedings;
and
(ii) has demonstrated that there is a
reasonable likelihood that, had he
or she attended the relevant
proceedings, the relevant order
made at those proceedings would
have been substantially different
from the relevant order; or
(b) if the Court is acting on the application
of the prosecutor or applicant in the
relevant proceedings, that the prosecutor
or applicant -
(i) provided erroneous evidence to
the Court in the relevant
proceedings; and
(ii) has demonstrated that there is a
reasonable likelihood that, had
the erroneous evidence not been
provided, the order made at those
proceedings would have been
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substantially different from the
relevant order.
(7) If the Court is acting on the application of a
party to the relevant proceedings, the Court may
set aside the relevant order in the absence of any
or all parties to those proceedings if all the
parties have endorsed on the application their
consent to the setting aside of the relevant order.
(8) If the Court sets aside a relevant order that
consists of, or includes, a conviction for an
offence -
(a) new proceedings in respect of the offence
may be commenced under this Act and
any limitation period for commencing
such proceedings is taken to commence
on the day on which the conviction is set
aside; and
(b) any enforcement order, administrative
sanction or civil sanction relating to the
offence is revoked; and
(c) the Court is to notify the Director,
Monetary Penalties Enforcement Service,
in writing, that the conviction has been
set aside.
(9) After setting aside a relevant order, the Court
may make such orders as are within its
jurisdiction.
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30. Adjournment of proceedings
(1) At any time during proceedings, the Court, on its
own motion or on the application of a party, may
adjourn the proceedings if the Court considers it
in the interests of justice to do so.
(2) Before adjourning proceedings under
subsection (1), the Court may provide the
opportunity to be heard on the matter to the
parties present before the Court.
(3) In determining whether or not to adjourn
proceedings under subsection (1), the Court is to
take into account -
(a) the object of this Act; and
(b) any relevant practice directions; and
(c) the need to avoid unnecessary delay in
finalising the proceedings; and
(d) the need to ensure a fair hearing; and
(e) any other matter that the Court considers
relevant.
(4) If a party to proceedings provides to the Court a
written consent to an adjournment of the
proceedings that is signed by all parties, the
Court may adjourn the proceedings in
accordance with the consent.
(5) If a party to proceedings files, before the date set
for the hearing of the proceedings by the Court, a
written consent to an adjournment of the
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proceedings that is signed by all parties, the
district registrar may adjourn the proceedings -
(a) to another sitting of the Court; or
(b) to another place in which the sittings of
the Court are held; or
(c) to both another such sitting and another
such place.
(6) A district registrar may exercise the power under
subsection (5) to adjourn proceedings only -
(a) subject to the practice directions; and
(b) if he or she considers it appropriate in the
interests of justice to do so.
31. Procedure on adjournment in offence proceedings
If for any reason proceedings in the Court for an
offence are adjourned, the Court may -
(a) remand the defendant in custody; or
(b) admit the defendant to bail; or
(c) if the defendant appeared before the
Court in accordance with his or her bail,
continue that bail (with or without a
variation to the conditions of that bail) to
the time at, and the day and place to,
which the proceedings are adjourned; or
(d) order the defendant to appear before the
Court at the time, on the day and at the
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place to which the proceedings are
adjourned.
32. Limitation on power of Court to admit defendant to
bail
Despite anything to the contrary in this Act, the
Court may not admit a defendant to bail under
this Act if the defendant -
(a) has attained the age of 17 years; and
(b) is charged with the crime of treason or
murder.
33. Power to remove or refer proceedings
(1) If the Court considers it appropriate to do so, it
may refer or remove the proceedings, or any
matter relating to the proceedings, to -
(a) the Court constituted differently; or
(b) another division of the Magistrates
Court.
(2) If under subsection (1) the sentencing of a
defendant has been removed to the Court
constituted differently, it is not necessary for the
Court to which the sentencing has been removed
to hear evidence as to the commission of the
offence of which the defendant has been found
guilty, except in so far as the Court constituted
differently considers will assist it in determining
the appropriate sentence.
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34. Committing defendant on remand to secure mental
health unit
(1) In this section -
Chief Forensic Psychiatrist means the person
appointed as Chief Forensic Psychiatrist
under the Mental Health Act 2013;
mental illness has the same meaning as in the
Mental Health Act 2013;
secure mental health unit has the same
meaning as in the Mental Health Act
2013;
specified means specified in an order under
this section that commits a defendant to a
secure mental health unit.
(2) If -
(a) the Court determines to remand a
defendant in custody; and
(b) the defendant appears to be suffering
from a mental illness; and
(c) the Court considers that the defendant
should be admitted to a secure mental
health unit for his or her own health or
safety or for the protection of others; and
(d) the Chief Forensic Psychiatrist has
provided a report to the effect that -
(i) the admission of the defendant to
the secure mental health unit is
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necessary for his or her care or
treatment; and
(ii) adequate facilities and staff exist
at the secure mental health unit
for the appropriate care and
treatment of the defendant; and
(iii) in the case of a defendant who
has not attained the age of 18
years, the secure mental health
unit is the most appropriate place
available to accommodate him or
her in the circumstances, having
regard to the objectives and
general principles set out in
sections 4 and 5 of the Youth
Justice Act 1997 -
the Court may remand the defendant in custody
and commit the defendant to a secure mental
health unit instead of committing the defendant
to prison.
(3) An order made under subsection (2) -
(a) is to specify that the specified person, or
a person of the specified class of persons,
is responsible for taking the defendant to
the specified secure mental health unit;
and
(b) may specify that the specified person or
another specified person, or a person of
the specified class of persons or of
another specified class of persons, is
responsible for bringing the defendant
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from the specified secure mental health
unit before the Court in connection with
the exercise by it of its powers under this
Act.
(4) A copy of an order under made subsection (2)
and the report of the Chief Forensic Psychiatrist
are to accompany the defendant to the specified
secure mental health unit.
(5) While a defendant is the responsibility of a
person as specified in an order made under
subsection (2) -
(a) that person has the custody of the
defendant; and
(b) the defendant is taken to be a forensic
patient for the purposes of the application
of relevant provisions of Parts 4 and 5 of
Chapter 2 of the Mental Health Act 2013.
(6) The Court may make such orders as to the
distribution and security of the report provided
by the Chief Forensic Psychiatrist as it considers
necessary or appropriate.
(7) Unless the Court orders otherwise, the Chief
Forensic Psychiatrist must provide a copy of his
or her report, as soon as practicable, to -
(a) the prosecutor; and
(b) the defendant or his or her legal
representative.
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(8) The prosecutor or the defendant may dispute the
whole or any part of the report of the Chief
Forensic Psychiatrist.
(9) If the whole or any part of the report of the Chief
Forensic Psychiatrist is disputed, the Court must
not take into consideration the report or part in
dispute unless the party disputing the report or
part has had the opportunity -
(a) to lead evidence on the disputed matters;
and
(b) to cross-examine, on the disputed
matters -
(i) the Chief Forensic Psychiatrist;
or
(ii) if the Chief Forensic Psychiatrist
has delegated his or her function
of writing the report, the author
of the report.
35. Variation or revocation of order committing
defendant to secure mental health unit
(1) In this section -
Chief Forensic Psychiatrist means the person
appointed as Chief Forensic Psychiatrist
under the Mental Health Act 2013;
secure mental health unit has the same
meaning as in the Mental Health Act
2013.
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(2) Each of the following persons may apply at any
time to the Court for the variation or revocation
of an order made under section 34(2) that
commits a defendant to a secure mental health
unit:
(a) the Director of Public Prosecutions or the
prosecutor;
(b) the Secretary of the responsible
Department in relation to the Mental
Health Act 2013;
(c) the Chief Forensic Psychiatrist;
(d) the defendant.
(3) The Chief Forensic Psychiatrist must apply to
the Court for the revocation of an order made
under section 34(2) that commits a defendant to
a secure mental health unit if the Chief Forensic
Psychiatrist is of the opinion that the defendant -
(a) no longer requires care and treatment in a
secure mental health unit; or
(b) could no longer benefit from such care
and treatment.
(4) On hearing an application made under
subsection (2) or (3), the Court -
(a) may vary, revoke or confirm the order
made under section 34(2); and
(b) if it revokes the order made under
section 34(2), may do one or more of the
following:
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(i) make an order to attend in
relation to the defendant;
(ii) release the defendant;
(iii) admit the defendant to bail;
(iv) remand the defendant in custody
to a time and day specified by the
Court.
(5) An application made under subsection (2) or (3)
is to be heard and determined within 14 days
after it is made.
36. Power to make ancillary order
The Court may make any ancillary order it
considers appropriate in respect of any matter for
which it has jurisdiction or any proceeding
before it.
37. Administrator may apply under Vexatious
Proceedings Act 2011
The Administrator may apply to the Supreme
Court under the Vexatious Proceedings Act 2011
for a vexatious proceedings order in relation to a
person who has instituted any proceedings under
this Act.
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38. Rules of court govern Court practice and procedure
and practice directions
The practice and procedure of the Court, and the
practice directions, are to be in accordance with
the rules of court.
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PART 5 - COMMENCING PROCEEDINGS FOR
SUMMARY OFFENCE OR INDICTABLE OFFENCE
Division 1 - Commencing proceedings for summary offence
or indictable offence
39. Offences for which proceedings may be commenced
in Court
(1) If proceedings for a summary offence committed
in this State or elsewhere may be taken in this
State, those proceedings may be commenced in
the Court.
(2) If proceedings for an indictable offence
committed in this State or elsewhere may be
taken in this State, those proceedings may be
commenced in the Court.
40. Proceedings for summary offence or indictable
offence commenced by court attendance notice or
charge sheet
(1) Proceedings for a summary offence or an
indictable offence are commenced in the Court
by filing with the Court -
(a) if the prosecutor is a private prosecutor, a
charge sheet that meets the requirements
of section 42; or
(b) if the prosecutor is a prescribed
prosecutor, either a court attendance
notice that has been served on a person
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or a charge sheet that meets the
requirements of section 42.
(2) For the purposes of subsection (1), a charge
sheet is filed if it, or a copy of it, is filed and a
court attendance notice is filed if -
(a) it, or a copy of it, is filed; or
(b) the prescribed information is filed.
(3) Subsection (1) does not apply to an offence if
any other Act or law prescribes that proceedings
for the offence commence, or are taken to have
commenced, on a day other than the day on
which the court attendance notice or charge
sheet is filed or on the occurrence of another
event.
41. Limitation on commencing proceedings for an
offence under Criminal Code Act 1924
(1) Only -
(a) a public officer in his or her capacity as
such and in good faith; or
(b) a person authorised or directed by the
Crown or the Commonwealth to sign a
charge sheet, or to commence or
undertake proceedings, for or on behalf
of the Crown or the Commonwealth; or
(c) a person authorised or directed by the
Director of Public Prosecutions to sign a
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charge sheet for or on behalf of the
Director of Public Prosecutions; or
(d) a person who has the consent of the
Director of Public Prosecutions -
may commence proceedings for an offence
under the Criminal Code Act 1924.
(2) The Director of Public Prosecutions may give
consent under subsection (1)(d) to a person to
commence proceedings for an offence under the
Criminal Code Act 1924 only if satisfied that the
person is acting in good faith and on reasonable
grounds.
Division 2 - Charge sheets
42. Form of charge sheet
(1) A charge sheet is to -
(a) be in writing; and
(b) be in the form prescribed by the rules of
court or, if those rules do not prescribe a
form, in an approved form; and
(c) specify the name of the prosecutor; and
(d) be signed as specified in subsection (2);
and
(e) except as provided by section 43, relate
to only one offence; and
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(f) specify the offence and identify the
statutory provision creating the offence;
and
(g) state the particulars of the alleged
conduct of the defendant that would
constitute that offence; and
(h) if the offence relates to property, the
value of the property as estimated by the
prosecutor; and
(i) include any other information or matters
prescribed by the rules of court.
(2) A charge sheet must be signed by -
(a) an individual who has a right to complain
of the behaviour of the defendant that is
alleged to constitute the offence, or the
legal representative of such an
individual; or
(b) a body corporate or unincorporate that
has a right to complain of the behaviour
of the defendant that is alleged to
constitute the offence, or a legal
representative or other person authorised
or directed by such a body to sign the
charge sheet, or to commence or
undertake the proceedings, for or on
behalf of the body corporate or
unincorporate; or
(c) a police officer; or
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(d) another public officer in his or her
capacity as such; or
(e) a person authorised or directed by
another Act to sign the charge sheet or to
commence or undertake the proceedings;
or
(f) a person authorised or directed by the
Crown, the Commonwealth or a statutory
authority to sign the charge sheet, or to
commence or undertake the proceedings,
for or on behalf of the Crown, the
Commonwealth or a statutory authority;
or
(g) a person authorised or directed by the
Director of Public Prosecutions to sign a
charge sheet for or on behalf of the
Director of Public Prosecutions.
(3) A charge sheet signed by a public officer may be
signed by the public officer in the name of, and
for -
(a) a person; or
(b) the -
(i) Agency, within the meaning of
the State Service Act 2000; or
(ii) agency or department of the
public service of this State,
another State, a Territory or the
Commonwealth; or
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(iii) statutory authority; or
(iv) council; or
(v) Government Business Enterprise
within the meaning of the
Government Business Enterprises
Act 1995; or
(vi) State-owned company -
in which the public officer is employed.
43. Joinder of charges in charge sheet
(1) Except as otherwise provided in another Act, 2
or more offences may be joined in one charge
sheet if -
(a) those offences arise substantially from
the same facts or closely related facts; or
(b) those offences are, or form part of, a
series of offences of the same or similar
character.
(2) If 2 or more offences are joined in one charge
sheet, the description of each offence is to be set
out in a separate numbered paragraph.
(3) If more than one offence is joined in one charge
sheet and the description of each offence is set
out in a separate paragraph, the charge for each
offence is to be regarded as a separate charge.
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(4) If one paragraph of a charge sheet contains more
than one offence, the Court, at any time during
the proceedings and on such conditions as it
considers appropriate, may permit the
prosecutor -
(a) to amend that paragraph so that it only
contains one offence; and
(b) to add new paragraphs that each contain
one of the offences that were contained
in the original paragraph.
(5) At any stage in the proceedings, the Court may
order that a separate hearing be held in respect of
any offence joined in a charge sheet -
(a) if it appears to the Court that the
defendant may be prejudiced in his or her
defence by hearing and determining the
charges together; or
(b) if it appears to the Court that an offence
has been joined with one or more other
offences in one charge sheet in
contravention of subsection (1); or
(c) for any other reason that the Court
considers appropriate.
44. Joinder of defendants in charge sheet
(1) In this section -
prescribed defendant, in relation to an
offence, means a person who, by reason
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of section 94 of this Act or section 3 of
the Criminal Code, could be found guilty
of the offence.
(2) Except as otherwise provided in another Act,
more than one prescribed defendant to an
offence may be joined in one charge sheet.
(3) The Court, on the application of a prescribed
defendant joined in a charge sheet made at any
stage in the proceedings on that charge sheet,
may order that a separate hearing be held in
respect of one or more charges against any of the
prescribed defendants, or any combination of the
prescribed defendants, joined in that charge
sheet.
45. Filing and provision of charge sheet
(1) A copy of the charge sheet must be filed in
accordance with the rules of court.
(2) If a charge sheet is not provided to the defendant
as required by this Act, that failure to provide the
charge sheet does not invalidate the proceedings
but may give rise to an adjournment of the
proceedings.
46. Irregularity in, and amendment of, charge sheet
(1) A defendant to proceedings for an offence may
not object to a charge sheet on any of the
following grounds:
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(a) that the charge sheet contains a defect in
substance or form;
(b) that the charge sheet varies from the
evidence supporting it.
(2) The Court may amend a charge sheet as it
considers appropriate if it appears to the Court
that the charge sheet -
(a) fails to disclose an allegation of an
offence or is otherwise defective; and
(b) ought to be amended -
(i) to disclose an allegation of an
offence; or
(ii) to cure the other defect.
(3) The Court amends a charge sheet by requiring
the Court's record of the charge sheet to be
amended as specified by the Court.
(4) If -
(a) the Court considers that a charge sheet
does not contain an allegation of an
offence but has not amended the charge
sheet under subsection (2); or
(b) it appears to the Court that the defendant
has been prejudiced by a defect or
variance referred to in subsection (1) -
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the Court, if it considers that the interests of
justice so require, may dismiss the proceedings
commenced by the charge sheet.
47. Removal of charge from charge sheet
(1) The prosecutor may amend a charge sheet so as
to remove a charge for an offence from it at any
time before, or at, the first attendance of the
defendant.
(2) The prosecutor may amend a charge sheet so as
to remove a charge for an offence from it at any
time after the first attendance of the defendant
but before the proceedings relating to the offence
have been finally determined if the Court grants
leave to do so.
(3) The Court, under subsection (2), may not grant
leave to amend a charge sheet if the charge has
been dismissed or otherwise determined by the
Court.
(4) The Court, under subsection (2), may not grant
leave to amend a charge sheet so as to remove an
indictable offence unless the Director of Public
Prosecutions is making the application for leave
or has consented in writing to the amendment.
(5) In determining whether to grant leave, under
subsection (2), to amend a charge sheet, the
Court is to take into account -
(a) whether -
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(i) the defendant or his or her legal
representative is present at the
time when the request for the
Court's leave is made; or
(ii) the prosecutor, not less than 48
hours before seeking leave to
amend the charge sheet, has
provided to the defendant written
notice of the intention to make
the request; and
(b) any prejudice to the defendant caused by
the removal of the charge from the
charge sheet or the cessation of the
proceedings on the charge; and
(c) that a defendant who has entered a plea
of not guilty to the charge is entitled to
have the proceedings determined; and
(d) the effect that the removal of the charge
from the charge sheet may have on the
admissibility of evidence in any future
proceedings; and
(e) any other matter that the Court considers
appropriate in the interests of justice in
the particular case.
(6) The amendment of a charge sheet under this
section takes effect -
(a) if the amendment is made at an
attendance of the prosecutor before the
Court, when the amendment is made; or
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(b) in any other case, when the amended
charge sheet is filed.
(7) If a charge sheet is amended under
subsection (1), the prosecutor is to provide a
copy of the amended charge sheet to the
defendant.
(8) If the prosecutor amends a charge sheet so as to
remove a charge for an offence from it -
(a) the charge is taken to be withdrawn; and
(b) the defendant is taken not to have been
charged in relation to the offence.
(9) The removal of a charge for an offence from a
charge sheet does not prevent a later charge for
the same offence being made in relation to the
person who was the subject of the charge sheet.
48. Withdrawal of charge sheet
(1) The prosecutor may withdraw a charge sheet at
any time before, or at, the first attendance of the
defendant.
(2) The prosecutor may withdraw a charge sheet at
any time after the first attendance of the
defendant but before the proceedings relating to
the offence have been finally determined if the
Court grants leave to do so.
(3) The Court, under subsection (2), may not grant
leave to withdraw a charge sheet if the charge, or
any of the charges, specified in the charge sheet
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has been dismissed or otherwise determined by
the Court.
(4) The Court, under subsection (2), may not grant
leave to withdraw a charge sheet relating to an
indictable offence unless the Director of Public
Prosecutions is making the application for leave
or has consented in writing to the withdrawal.
(5) In determining whether to grant leave, under
subsection (2), to withdraw a charge sheet, the
Court is to take into account -
(a) whether -
(i) the defendant or his or her legal
representative is present at the
time when the request for the
Court's leave is made; or
(ii) the prosecutor, not less than 48
hours before seeking leave to
withdraw the charge sheet, has
provided to the defendant written
notice of the intention to make
the request; and
(b) any prejudice to the defendant caused by
the withdrawal of the charge sheet or the
cessation of the proceedings on the
charge; and
(c) that a defendant who has entered a plea
of not guilty to the charge is entitled to
have the proceedings determined; and
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(d) the effect that the withdrawal of the
charge sheet may have on the
admissibility of evidence in any future
proceedings; and
(e) any other matter that the Court considers
appropriate in the interests of justice in
the particular case.
(6) The withdrawal of a charge sheet is to be in the
approved form.
(7) The withdrawal of a charge sheet takes effect -
(a) if the charge sheet is withdrawn with the
leave of the Court at an attendance of the
prosecutor before the Court, when the
withdrawal is accepted by the Court; or
(b) in any other case, when the withdrawal is
filed.
(8) If a charge sheet is withdrawn under
subsection (1), the prosecutor is to provide a
copy of the withdrawal of the charge sheet to the
defendant.
(9) If the prosecutor withdraws a charge sheet -
(a) the charge for the offence specified in the
charge sheet is taken to be withdrawn;
and
(b) the defendant is taken not to have been
charged in relation to the offence.
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(10) The withdrawal of a charge for an offence
against a person because of the withdrawal of a
charge sheet does not prevent a later charge for
the same offence being made in relation to the
person who was the subject of the charge sheet.
49. Defendant may obtain charge sheet
(1) In this section -
preliminary brief has the same meaning as in
Part 6.
(2) At any time after a preliminary brief is required
to be provided to a defendant in relation to
proceedings for an offence, the defendant may
obtain a copy of the charge sheet, free of charge,
from the prosecutor or the appropriate district
registrar.
50. Relationship of this Part with other law
(1) Nothing in this Part affects any law or practice
relating to indictments presented to, or filed
with, the Supreme Court by the Director of
Public Prosecutions or the Attorney-General.
(2) If another Act or a statutory rule, within the
meaning of the Rules Publication Act 1953,
provides for proceedings for an offence which
may be taken in the Court to be commenced
otherwise than by the filing of a court attendance
notice or charge sheet under this Act, those
proceedings may be so commenced by the filing
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of a court attendance notice or charge sheet
under this Act.
Division 3 - Court attendance notices
51. Court attendance notice issued to defendant by
district registrar
(1) If the prosecutor is a private prosecutor, a district
registrar may issue a notice to a defendant
requiring the defendant to attend before the
Court on the day, and at the time and place,
specified in the notice to answer a charge for an
offence.
(2) The private prosecutor must ensure that the
notice issued under subsection (1) is served on
the defendant.
52. Court attendance notice issued to defendant by
prescribed prosecutor
(1) If a prescribed prosecutor considers that
proceedings in relation to an offence should be
commenced against a person but a charge sheet
has not been filed, the prescribed prosecutor may
issue a notice to the person requiring him or her
to attend before the Court on the day, and at the
time and place, specified in the notice.
(2) If a prescribed prosecutor has filed a charge
sheet in relation to an offence that a person is
alleged to have committed, that prescribed
prosecutor or another prescribed prosecutor may
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issue a court attendance notice to the person
requiring him or her to attend before the Court
on the day, and at the time and place, specified
in the notice.
(3) The prescribed prosecutor must ensure that the
notice issued under subsection (1) or (2) is
served on the defendant.
(4) If a prescribed prosecutor issues a court
attendance notice -
(a) before a charge sheet has been filed, the
prescribed prosecutor is to -
(i) file a copy of the court attendance
notice, or the information
prescribed for the purposes of
section 40(2)(b), as soon as
practicable but not later than 7
days after the issue of court
attendance notice; and
(ii) file a charge sheet, in relation to
the matter from which the issue
of the court attendance notice
resulted, not later than 21 days
before the return day specified in
the court attendance notice; or
(b) after a charge sheet has been filed, the
prescribed prosecutor must file a copy of
the court attendance notice, or the
information prescribed for the purposes
of section 40(2)(b), as soon as practicable
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but not later than 7 days after the issue of
court attendance notice.
53. Duty of defendant to provide contact details
(1) On receiving a court attendance notice, the
person on whom it is served is to notify the
prosecutor, as specified in the notice, of his or
her full name, or in the case of a body corporate
of its corporate name, and an address where
information, documents and other things
required by this Act to be served on, or
otherwise provided to, him, her or it may be so
served or provided.
(2) For the purposes of subsection (1), a person,
whether an individual or a body corporate, may
provide -
(a) an electronic address where he, she or it
can receive electronic communication; or
(b) his, her or its postal or business address
to which mail may be posted to him, her
or it; or
(c) in the case of an individual, his or her
residential address or the address of his
or her place of employment if mail may
be posted to him or her there; or
(d) in the case of a body corporate, its
principal or registered office or principal
place of business.
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(3) Any information, document or other thing served
on, or otherwise provided to, a defendant at an
address provided by the defendant to the
prosecutor under this section is taken to have
been effectively served on, or otherwise
provided to, the defendant, unless the
information, document or other thing is required
under this Act or the rules of court to be
personally served on the defendant or served on
or provided to the defendant in a different
manner or at a different address.
54. Failure to comply with court attendance notice
(1) A defendant who has been served with a court
attendance notice, including a person referred to
in section 52, must not fail or refuse to comply
with it without reasonable excuse.
(2) The Court may issue an arrest warrant against a
defendant if -
(a) the defendant fails or refuses to comply
with a court attendance notice; and
(b) a reasonable excuse for that failure or
refusal to comply with the court
attendance notice has not been provided
to the Court; and
(c) the Court is satisfied that -
(i) the court attendance notice has
been served on the defendant; or
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(ii) although the court attendance
notice has not been served on the
defendant, all reasonable steps
have been taken to so serve it.
(3) When a defendant is brought before the Court
under an arrest warrant issued under
subsection (2), the Court may -
(a) admit the defendant to bail; or
(b) refuse to release the defendant and
remand him or her in custody to a day,
time and place specified by the Court.
55. Form of court attendance notice
A court attendance notice issued to a person is
to -
(a) be in writing; and
(b) be in the form prescribed by the rules of
court or, if those rules do not prescribe a
form, an approved form; and
(c) be signed -
(i) if being issued by a district
registrar, by a district registrar; or
(ii) in any other case, by the person
who is issuing it; and
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(d) specify that the person is to attend before
the Court on the day, and at the time and
place, specified in the notice; and
(e) include a brief description of the conduct
comprising the offence (but a reference
to the legislation which establishes the
offence is not required); and
(f) if the defendant has been admitted to bail
under section 4E of the Bail Act 1994 or
section 4(3) of the Criminal Law
(Detention and Interrogation) Act 1995,
include or have attached the bail notice;
and
(g) specify that failure to comply with the
court attendance notice may result in the
defendant being arrested or the matter
dealt with in the absence of the party or
person.
56. Withdrawal of court attendance notice
(1) If -
(a) a court attendance notice issued by a
prescribed prosecutor has been served on
a person in respect of conduct that may
constitute an offence; but
(b) a charge sheet relating to that conduct
has not been filed -
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the court attendance notice may be withdrawn by
that or another prescribed prosecutor or, if the
Court so directs, by a district registrar.
(2) If a court attendance notice in respect of conduct
that may constitute an offence has been served
on a person and a charge sheet relating to that
conduct has been filed, the court attendance
notice may be withdrawn -
(a) if it was issued by a district registrar, by
the district registrar; or
(b) if it was issued by a prescribed
prosecutor, by that or another prescribed
prosecutor.
(3) The withdrawal of a court attendance notice is to
be by notice issued to the person to whom the
court attendance notice was issued.
(4) If a court attendance notice is withdrawn after
the filing of a charge sheet, or court attendance
notice, by a prescribed prosecutor, the prescribed
prosecutor is to file a copy of the notice of
withdrawal with the Court.
(5) The withdrawal of a court attendance notice
before the filing of a charge sheet takes effect
when it is provided to the defendant.
(6) The withdrawal of a court attendance notice after
the filing of a charge sheet takes effect -
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(a) if withdrawn by a district registrar, when
the district registrar so withdraws the
court attendance notice; and
(b) if withdrawn by a prescribed prosecutor,
when the prescribed prosecutor files the
copy of it with the Court.
(7) If a court attendance notice is withdrawn after
the filing of a charge sheet -
(a) the withdrawal notice is to include a
statement that the charge sheet is also
withdrawn; and
(b) the charge sheet is taken to have been
withdrawn and that withdrawal of the
charge sheet is taken to take effect when
the withdrawal of the court attendance
notice takes effect; and
(c) section 48(9) and (10) applies to the
withdrawal of the charge sheet.
(8) For the avoidance of doubt, it is stated that the
withdrawal of a court attendance notice does not
prevent the issuance of another court attendance
notice in respect of the same conduct to which
the withdrawn court attendance notice related.
57. Notice taken to be court attendance notice
A notice or direction issued under the rules of
court that requires a defendant to attend before
the Court on the day, and at a time and place,
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specified in the notice or direction is taken, if
appropriate, to be a court attendance notice.
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PART 6 - PRE-HEARING PROCEDURES RELATING
TO OFFENCES
Division 1 - Interpretation of Part 6
58. Interpretation of Part 6
In this Part -
indictable offence brief means an indictable
offence brief referred to in section 65;
preliminary brief means a preliminary brief
referred to in section 61;
record of interview has the meaning given by
section 59;
relevant charge sheet means the charge sheet
in which the relevant offence is specified;
relevant offence means the offence in respect
of which a preliminary brief, summary
offence brief or indictable offence brief,
as appropriate, is required to be provided;
summary offence brief means a summary
offence brief referred to in section 63;
time of disclosure, in relation to a preliminary
brief, summary offence brief or
indictable offence brief, means the time
at which the preliminary brief, summary
offence brief or indictable offence brief is
provided to the defendant.
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59. Meaning of record of interview
(1) In this Part -
record of interview means -
(a) if -
(i) a defendant has been
formally interviewed in
relation to the relevant
offence by a police officer
or another person
investigating the relevant
offence; and
(ii) an audio or audio-visual
recording of the interview
has been made -
a copy of the audio recording or
of the audio of the audio-visual
recording; or
(b) if -
(i) a defendant has
participated in a formal
interview in relation to the
relevant offence
conducted by a police
officer or another person
investigating the relevant
offence; but
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(ii) no audio or audio-visual
recording of the interview
has been made -
the written record of the
interview or written statement
made by the defendant.
(2) When required to provide a record of interview,
the prosecutor may provide instead an audio-
visual recording of the formal interview of a
defendant and, if he or she does so, that audio-
visual recording is taken to be a record of
interview.
60. Meaning of prosecutor
In relation to proceedings for an indictable
offence, a reference in this Part to the prosecutor
is taken to be a reference to -
(a) the Director of Public Prosecutions if he
or she is responsible for the prosecution
of the offence and the Commissioner of
Police has not been responsible for the
investigation of the offence; or
(b) the Commissioner of Police if he or she
has been responsible for the investigation
of the offence; or
(c) the prosecutor in any other case.
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Division 2 - Pre-hearing disclosure of prosecution case
61. Preliminary brief to be provided
The prosecutor is to provide a preliminary brief
in relation to the offence (whether a summary
offence or an indictable offence) specified in a
charge sheet to the defendant -
(a) if the defendant's first attendance before
the Court is under section 18, at that
attendance or as soon as reasonably
practicable after that attendance; or
(b) if the defendant's first attendance is in
accordance with a court attendance
notice or a bail notice, at least 21 days
before the return day specified in the
court attendance notice or bail notice
requiring the defendant to attend before
the Court for a first attendance.
62. Contents of preliminary brief
(1) A preliminary brief is to include -
(a) a copy of the relevant charge sheet; and
(b) a summary of the material facts; and
(c) if the prosecutor is a police officer, the
Director of Public Prosecutions or the
Commonwealth Director of Public
Prosecutions, a copy of the criminal
record of the defendant or a statement
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that the defendant has no previous
convictions; and
(d) a copy of the record of interview; and
(e) a statement specifying that, if an audio-
visual recording of the formal interview
of the defendant has been made, the
recording may be viewed by the
defendant and the name and contact
details of the person with whom the
defendant may arrange for such a
viewing; and
(f) if the relevant offence is a summary
offence, any other information, document
or other thing that the regulations require
to be included in the preliminary brief.
(2) A preliminary brief may consist of more than
one set of documents and things and those sets
may be provided to the defendant in instalments.
(3) However, if a preliminary brief is provided in
instalments, the last instalment is to be provided
to the defendant as specified in section 61.
63. Summary offence brief to be provided
(1) In proceedings for a summary offence, the
prosecutor is to provide to the defendant a
summary offence brief relating to that offence if
the defendant has pleaded not guilty to the
charge for the offence at any attendance before
the Court or by filing a written plea.
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(2) The prosecutor is to provide the summary
offence brief to the defendant at least 28 days
before -
(a) the case management hearing; or
(b) if a case management hearing is not held,
the hearing of the charge for the
summary offence.
(3) On the application of the defendant or the
prosecutor, the Court, by order, may vary the
day by which the summary offence brief is to be
provided under subsection (2), whether that day
as so varied is before or after the day specified
under that subsection.
(4) On the application, in proceedings where a case
management hearing is to be held, of the
defendant or the prosecutor made before the day
by which the summary offence brief is to be
provided under subsection (2), the Court, by
order, may vary the information, documents and
things which are required to be included in the
summary offence brief by removing any
information, document or thing.
(5) If the Court under subsection (4) has removed
any information, document or thing from the
information, documents and things that would
otherwise have been required to be provided to
the defendant, the prosecutor is to provide that
removed information, document or thing to the
defendant not later than 28 days before the
hearing of the charge for the offence, unless the
Court orders otherwise.
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64. Contents of summary offence brief
(1) A summary offence brief in relation to a
summary offence is to include the following
information, documents, things and copies of
documents and things unless, at the time of
disclosure, the information, documents, things
and copies have been included in the preliminary
brief provided to the defendant, have been
otherwise disclosed or provided to the defendant,
are in the possession or under the control of the
defendant, or are not in the possession of, or not
available to, the prosecutor:
(a) any information, document, thing or
copy of a document or thing that is
required to be provided in a preliminary
brief in relation to the relevant offence
but has not been provided;
(b) a copy of any statement relevant to the
charge and signed by the defendant that
is in the possession of the prosecutor;
(c) a copy of the relevant statements made
by each person to a police officer or
other person investigating the relevant
offence;
(d) a copy of each document that the
prosecutor, at the time of disclosure,
intends to tender as evidence at the
hearing of the charge;
(e) a copy of each relevant photograph or
relevant audio recording, or a copy of the
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audio of each relevant audio-visual
recording;
(f) a list or general description of the
documents and other things that -
(i) are required to be provided in the
summary offence brief; but
(ii) are not practicable for the
prosecutor to copy or include in
the summary offence brief, or the
disclosure or publication of
which are prohibited, or limited
to viewing, under this Act,
another Act or another law -
together with a statement specifying that
they may be viewed by the defendant and
the name and contact details of the
person with whom the defendant may
arrange for such a viewing.
(2) A summary offence brief may consist of more
than one set of documents and things and those
sets may be provided to the defendant in
instalments.
(3) However, if a summary offence brief is provided
in instalments, the last instalment is to be
provided to the defendant as specified in
section 63(2).
65. Indictable offence brief to be provided
(1) In this section -
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second attendance means the next attendance
before the Court of the defendant in
proceedings on a charge for an indictable
offence following the defendant's first
attendance.
(2) In proceedings for an indictable offence, the
prosecutor is to provide to the defendant an
indictable offence brief relating to that offence
after the defendant's first attendance and before
his or her second attendance.
66. Contents of indictable offence brief
(1) An indictable offence brief in relation to an
indictable offence is to include the following
information, documents, things and copies of
documents and things unless, at the time of
disclosure, the information, documents and
things have been included in the preliminary
brief provided to the defendant, have been
otherwise disclosed or provided to the defendant,
are in the possession or under the control of the
defendant, or are not in the possession, or not
available to, the prosecutor at the time of
disclosure:
(a) any information, document, thing or
copy of a document or thing that is
required to be provided in a preliminary
brief in relation to the relevant offence
but has not been provided;
(b) a copy of the relevant statements made
by each person to a police officer or
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other person investigating the relevant
offence.
(2) An indictable offence brief may consist of more
than one set of documents and things and those
sets may be provided to the defendant in
instalments.
(3) However, if an indictable offence brief is
provided in instalments, the last instalment is to
be provided to the defendant as specified in
section 65(2).
67. Continuing obligation of disclosure
(1) Subsection (2) applies to any information,
document or other thing, or a copy of any
document or other thing -
(a) that comes to the prosecutor's notice or
into the prosecutor's possession after the
preliminary brief, summary offence brief
or indictable offence brief is provided to
the defendant; and
(b) that the prosecutor -
(i) would have been required to
include, or would have been
required to include a copy of, in
that brief; or
(ii) would have been required to
allow a viewing of by the
defendant in conjunction with the
provision of that brief -
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had the prosecutor had notice, or been in
possession, of the information,
document, other thing or copy at the time
when that brief was provided to the
defendant.
(2) The prosecutor is to -
(a) provide to the defendant any information,
document or other thing, or a copy of any
document or other thing, that would have
been required, or a copy of which would
have been required, to be included in the
preliminary brief, summary offence brief
or indictable offence brief; and
(b) allow the viewing by the defendant of a
document or other thing, or a copy of any
document or other thing, which would
have been required to be allowed in
conjunction with the provision of the
preliminary brief, summary offence brief
or indictable offence brief -
as soon as reasonably practicable after the
information, document or other thing comes to
the prosecutor's notice or into his or her
possession.
68. Duty to allow viewing of audio-visual recording and
certain other documents and things
(1) If -
(a) an audio-visual recording was made of
the formal interview of a defendant; but
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(b) the defendant has not been provided with
a copy of that recording as the record of
interview or otherwise -
the prosecutor is to make the recording, or a
copy of it, available for viewing by the
defendant as arranged in accordance with the
relevant preliminary brief, summary offence
brief or indictable offence brief.
(2) If a document or thing, or a copy of a document
or thing, is required to be provided to the
defendant in a summary offence brief or
indictable offence brief and the prosecutor
instead includes in that brief a statement that the
document or thing, or a copy of the document or
thing, may be viewed by the defendant, the
prosecutor is to make the document or thing, or a
copy of it, available for viewing by the
defendant as arranged in accordance with the
relevant summary offence brief or indictable
offence brief.
69. Limitation on disclosure of person's address
(1) The prosecutor is not required to disclose the
address, telephone number, email address or
facsimile number (whether a private, business or
official address or number) of any person when
providing any information, document or other
thing, or a copy of any document or other thing,
under this Division unless -
(a) the prosecutor reasonably believes that
the address or number is relevant to the
alleged offence and such disclosure is not
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likely to cause a risk to the life or safety
of any person; or
(b) the Court allows or requires the
disclosure.
(2) For the purposes of including in a preliminary
brief, summary offence brief or indictable
offence brief, or otherwise disclosing, any
information, document or other thing, or a copy
of any document or other thing, the prosecutor
may delete, blank out or render illegible, in or on
any information, document or other thing, or a
copy of any document or other thing, an address
or number referred to in subsection (1) before
providing the information, document, other thing
or copy to the defendant.
70. Limitation on disclosure of sensitive material
(1) In this section -
child exploitation material means material
that describes or depicts, in a way that a
reasonable person would regard as being,
in all the circumstances, offensive, a
person who is or who appears to be under
the age of 18 years -
(a) engaged in a sexual activity; or
(b) in a sexual context; or
(c) as the subject of torture, cruelty
or abuse (whether or not in a
sexual context);
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sensitive material means -
(a) child exploitation material; or
(b) material that consists of, or
contains or displays, an image of
a person that, disregarding the
fact that the material was brought
into existence or is in the
possession of the prosecutor for
the purpose of providing
evidence of an offence, is
obscene or indecent; or
(c) material that consists of, or
contains or displays, an image of
a person the disclosure of which,
without the person's consent,
would interfere with the person's
privacy; or
(d) an audio recording, an audio-
visual recording or the audio of
an audio-visual recording of an
affected person; or
(e) a photograph of an affected
person.
(2) The prosecutor is not required to provide in a
preliminary brief, a summary offence brief or
indictable offence brief, or otherwise disclose,
sensitive material.
(3) For the purposes of including in a preliminary
brief, summary offence brief or indictable
offence brief, or otherwise disclosing, any
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information, document or other thing, or a copy
of a document or other thing, the prosecutor may
delete, blank out or render illegible, in or on any
information, document or other thing, or a copy
of any document or other thing, any sensitive
material before providing the information,
document, other thing or copy to the defendant.
(4) Despite subsection (2), if the prosecutor does not
include in a preliminary brief, summary offence
brief or indictable offence brief, or otherwise
disclose, sensitive material which, were the
material not sensitive material, he or she would
have been required to so include or disclose to
the defendant under this Division, the prosecutor
is to -
(a) provide the defendant with a written
notice containing a description of the
sensitive material and the name and
contact details of the person with whom
the defendant may arrange for a viewing
of the material; and
(b) make the sensitive material available for
viewing by the defendant as arranged in
accordance with that notice.
71. Effect of privilege and public interest immunity
A requirement under this Division to disclose or
provide any information, document or other
thing, or a copy of any document or other thing,
is subject to -
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(a) any law to the effect that the information,
document, thing or copy is privileged
and need not be disclosed to a court; and
(b) the law on public interest immunity.
72. Disclosure not required if information, &c., already
provided
(1) The prosecutor is not required under this
Division to provide in a preliminary brief,
summary offence brief or indictable offence
brief, or to otherwise disclose to the defendant,
any information, document or other thing, or a
copy of a document or other thing, if the
information, document, thing or copy -
(a) has already been provided or disclosed to
the defendant; or
(b) is in the possession, or under the control,
of the defendant.
(2) Despite subsection (1), if -
(a) any information, document or other
thing, or a copy of a document or other
thing, has been provided to a defendant
who, at the time when he or she was
provided with it, was not represented by
a legal practitioner; and
(b) the defendant retains legal
representation; and
(c) the legal representative, in writing,
requests that the prosecutor provide to
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him or her that information, document,
other thing or copy -
the prosecutor is to provide that information,
document, other thing or copy to the legal
representative as soon as practicable.
(3) For the avoidance of doubt, it is stated that
subsection (1) does not prevent the prosecutor
from providing to the defendant any information,
document or other thing, or a copy of a
document or other thing, referred to in that
subsection.
73. Consequences of non-disclosure
(1) If, on the application of a defendant at his or her
hearing before the Court, the Court is satisfied
that the prosecutor failed to disclose or provide
any information, document or other thing, or a
copy of any document or other thing, in the
preliminary brief, summary offence brief or
indictable offence brief, or otherwise, or failed to
allow a viewing of any document or other thing,
or a copy of any document or other thing, as
required by this Division, the Court may adjourn
the hearing so as to allow sufficient time for -
(a) the prosecutor to disclose or provide, or
to allow the viewing of, the information,
document, thing or copy; and
(b) the defendant to investigate properly the
evidence or other matter disclosed,
provided or viewed and to obtain any
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further evidence that may be necessary as
a result of that investigation.
(2) On the resumption of a hearing following an
adjournment under subsection (1), the defendant
may -
(a) require a person who has given evidence,
including himself or herself, to be
recalled as a witness; and
(b) cross-examine or further cross-examine
the person about the evidence or other
matter disclosed, provided or viewed
during the adjournment; and
(c) adduce evidence in rebuttal of that
evidence or other matter.
74. Common law disclosure requirements
Except as provided in sections 69 and 70,
nothing is this Division derogates from the
prosecutor's duty under common law to disclose
information to the defendant.
75. Limitation on use of disclosed information,
documents, other things, and copies by defendant
A defendant, or his or her legal representative,
who has been provided with any information,
document, other thing, or a copy of a document
or other thing, must not -
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(a) disclose it, or allow it to be disclosed, to
any person for a purpose not connected
with the proceedings; or
(b) copy it, or allow it to be copied, for a
purpose not connected with the
proceedings -
unless required by law, or authorised by the
Court, to do so.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
Division 3 - Warning to defendant
76. Court to warn defendant of need for notice relating
to admissible opinion evidence
(1) In this section -
admissible opinion evidence means evidence
of an opinion to which section 79 of the
Evidence Act 2001 applies.
(2) If a defendant on a charge for a summary
offence that is not an electable offence enters a
plea, the Court is to warn the defendant of the
requirements of section 77 in relation to
admissible opinion evidence.
(3) If a defendant on a charge for an electable
offence -
(a) elects under section 107(4) or
section 109(1) to have the offence dealt
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with by the Court or, under section 111,
is taken to have made such an election;
and
(b) enters a plea -
the Court is to warn the defendant of the
requirements of section 77 in relation to
admissible opinion evidence.
Division 4 - Pre-hearing disclosure of defence case
77. Disclosure relating to opinion evidence
(1) In this section -
admissible opinion evidence means evidence
of an opinion to which section 79 of the
Evidence Act 2001 applies;
relevant proceedings, in relation to a
defendant, means -
(a) a hearing of a charge for a
summary offence; or
(b) an investigation under the
Criminal Justice (Mental
Impairment) Act 1999 into a
defendant's fitness to stand trial
for an offence; or
(c) a special hearing held in
accordance with section 15 of the
Criminal Justice (Mental
Impairment) Act 1999; or
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(d) proceedings in relation to the
sentencing of the defendant in
relation to an offence for which
the defendant has been found
guilty.
(2) A defendant who intends to adduce, in relevant
proceedings, admissible opinion evidence of a
witness must provide to the prosecutor a notice
of evidence in relation to the witness -
(a) in an investigation into a defendant's
fitness to stand trial for an offence, or in
a special hearing, under the Criminal
Justice (Mental Impairment) Act 1999, as
soon as practicable after the admissible
opinion evidence becomes available to
the defendant; or
(b) in proceedings in relation to the
sentencing of the defendant, as soon as
practicable after the admissible opinion
evidence becomes available to the
defendant; or
(c) in the case of a hearing of a charge for an
offence, as soon as practicable but -
(i) not less than 7 days before the
case management hearing; or
(ii) if a case management hearing is
not held, not less than 7 days
before the hearing of the charge
for the offence.
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(3) A notice of evidence is a notice, in writing,
that -
(a) contains the name and business address
of the witness; and
(b) describes the qualifications of the
witness to give admissible opinion
evidence; and
(c) either -
(i) sets out the substance of the
admissible opinion evidence it is
proposed to adduce from the
witness and the acts, facts,
matters and circumstances on
which the opinion is formed; or
(ii) has attached to it the report, or a
copy of the report, of the witness
that sets out the opinion of the
witness.
(4) If the defendant does not comply with
subsection (2) in relation to admissible opinion
evidence that he or she intends to adduce in
relevant proceedings, the admissible opinion
evidence may not be adduced in the proceedings
except in accordance with an order or direction
of the Court under subsection (5).
(5) The Court may do any or all of the following if a
defendant does not comply with subsection (2)
in relation to admissible opinion evidence:
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(a) order or direct that the admissible
opinion evidence may be adduced in
relevant proceedings;
(b) order or direct that a notice of evidence
in relation to the admissible opinion
evidence is required to be provided to the
prosecutor within the period specified in
the order or direction;
(c) make any other order or direction that the
Court considers appropriate in relation to
the admissible opinion evidence.
(6) If the defendant intends to adduce, in relevant
proceedings, admissible opinion evidence
relevant to the defendant's mental state, or
medical condition, at the time of an alleged
offence to which the proceedings relate, the
Court, on the application of the prosecutor, may
require the defendant to submit, at the
prosecutor's expense, to an examination by a
person qualified to give admissible opinion
evidence on the defendant's mental state or
medical condition.
(7) Subsection (8) applies in relation to admissible
opinion evidence adduced, or to be adduced, in
relevant proceedings if -
(a) the defendant adduces the admissible
opinion evidence, or intends to adduce
the admissible opinion evidence, in the
proceedings in accordance with an order
or direction of the Court under
subsection (5); or
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(b) a notice of evidence in relation to the
admissible opinion evidence is provided
to the prosecutor less than 14 days before
the proceedings begin.
(8) If this subsection applies in relation to
admissible opinion evidence adduced, or
intended to be adduced, in relevant proceedings,
the Court, on the application of the prosecutor,
may adjourn the proceedings to allow the
prosecution a reasonable opportunity to do any
or all of the following:
(a) consider a notice of evidence, if any, in
relation to the admissible opinion
evidence;
(b) consider the admissible opinion
evidence, if any;
(c) obtain evidence on the matter to which
the admissible opinion evidence
adduced, or intended to be adduced,
relates.
(9) The Court is to grant an application for an
adjournment under subsection (8), unless there
are good reasons, in the opinion of the Court, not
to do so.
(10) A notice of evidence may be provided to the
prosecutor by -
(a) electronic communication to him or her;
or
(b) giving it to him or her; or
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(c) leaving it at, or sending it by post to, the
postal address or place or address of
business or employment of the
prosecutor last known to the defendant;
or
(d) if the prosecutor is not a public officer,
sending it by post to the residential
address of the prosecutor; or
(e) by any other means agreed between the
defendant or defendant's legal
representative and the prosecutor.
(11) In computing a period specified in subsection (2)
or (7), any day that is an excluded day for the
purposes of section 29 of the Acts Interpretation
Act 1931 is to be disregarded.
(12) This section applies despite section 11(1) of the
Criminal Justice (Mental Impairment) Act 1999.
Division 5 - Provision of information and documents to
defendant
78. Providing information and documents to defendant
(1) Subject to this or another Act, the rules of court
or another law, if this Part requires the service
on, or provision to, a defendant of any
information or document, the information or
document may be served or provided by
electronic communication if the defendant has
consented to it.
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(2) Subsection (1) does not prevent the service or
provision of any information or document under
section 29AB of the Acts Interpretation Act
1931.
(3) If the defendant, for the purposes of the service
on or provision to him or her of any information
or document under this Part, has provided an
email address or a telephone or facsimile number
to the prosecutor or other person required under
this Part to so serve or provide any information
or document -
(a) the defendant is taken to have consented
to the service or provision of the
information or document by electronic
communication to that email address or
telephone or facsimile number; and
(b) any information or document sent by
electronic communication to that email
address or telephone or facsimile number
is effectively served on or provided to the
defendant.
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PART 7 - SUMMARY OFFENCE PROCEDURES
Division 1 - Interpretation of Part 7
79. Meaning of hearing
In this Part, unless the context requires
otherwise, a reference to a hearing is a reference
to the hearing of a charge for a summary
offence.
Division 2 - Commencing proceedings
80. Time limit for commencing proceedings for
summary offence
(1) Proceedings for a summary offence must be
commenced -
(a) within 6 months after the time when the
alleged offence occurred; or
(b) if a different period for the commencing
of the proceedings is specified in, or
determined under, this or any other Act,
within that different period.
(2) Subsection (1)(a) does not apply to -
(a) an offence that is taken to have been
created a summary offence by reason of
section 99 or 101; or
(b) an offence referred to in subsection (4) in
the circumstances specified in that
subsection.
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(3) Proceedings for a summary offence that is not
also an indictable offence referred to in
Schedule 1 or 2 may be commenced against a
defendant within 12 months after the time when
the alleged offence occurred if -
(a) the circumstances of the alleged offence
may also give rise to an indictable
offence; and
(b) the defendant has been charged with that
indictable offence within the period of 6
months, or the other period, referred to in
subsection (1).
(4) Proceedings for a summary offence that is not
also an indictable offence referred to in
Schedule 1 or 2 may be commenced against a
defendant at any time if -
(a) the circumstances of the alleged offence
may also give rise to an indictable
offence; and
(b) the defendant has been charged with that
indictable offence within the period of 6
months, or the different period, referred
to in subsection (1); and
(c) the defendant has consented in writing to
the commencement of the proceedings.
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Division 3 - First attendance of defendant and entering plea
for summary offence
81. First attendance
(1) On the first attendance before the Court of a
defendant charged with a summary offence, the
Court -
(a) must cause the charge to be read to the
defendant, or explain to the defendant, in
simple terms, the offence with which he
or she is charged; and
(b) if the defendant is not represented by a
legal practitioner, must explain to the
defendant, in the manner specified by the
rules of court, the defendant's rights and
duties under this Act in respect of the
charge; and
(c) must invite the defendant to enter a plea
to the charge.
(2) The Court is not required to comply with
subsection (1)(a) if satisfied that the defendant -
(a) is represented by a legal practitioner; or
(b) has received a copy of, and understands
the nature of, the charge.
82. Entering plea
(1) On the first attendance before the Court of a
defendant on a charge for a summary offence,
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the defendant is to plead to the offence at that
attendance unless the Court, in the interests of
justice, determines otherwise.
(2) If proceedings for a summary offence are
adjourned and the defendant has not pleaded to
the offence, the defendant is to plead to the
offence when he or she next attends before the
Court unless the Court, in the interests of justice,
determines otherwise and further adjourns the
proceedings.
(3) A defendant is entitled to plead -
(a) that he or she is guilty of the offence
charged; or
(b) that he or she is not guilty of the offence
charged; or
(c) that he or she is not guilty of the offence
charged but is guilty of another offence
of which he or she might be convicted on
a charge for the offence charged; or
(d) that further proceedings may not be taken
in respect of the charge; or
(e) that he or she has cause to show why he
or she should not be convicted of the
offence charged; or
(f) that he or she has previously been found
guilty or not guilty of the offence
charged.
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(4) If a defendant pleads that further proceedings
may not be taken in respect of the charge -
(a) the defendant is to state the grounds on
which the plea is made; and
(b) the Court, before proceeding further,
must hear and determine the plea and -
(i) amend the charge; or
(ii) dismiss the charge; or
(iii) overrule the plea.
(5) If, under subsection (4), the charge is amended
or the plea is overruled, the defendant is to plead
to the amended charge or to plead further.
(6) If, on being asked to plead to the charge, the
defendant stands mute, refuses to plead or does
not answer directly, the defendant is taken to
have pleaded not guilty.
(7) A plea required to be entered or made by a
defendant under this section may be made by the
defendant personally or, if the Court consents,
by the defendant's legal representative.
83. Notice of details of legal representation of defendant
to be provided following plea of not guilty
If -
(a) a defendant enters a plea of not guilty at
an attendance before the Court; and
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(b) when entering that plea does not have a
legal representative present but either at
that time has retained, or later retains, a
legal representative -
the legal representative, as soon as reasonably
practicable after that plea has been entered, is to
notify the prosecutor, within the meaning of
section 60, of his or her representation of the
defendant.
84. Procedure if defendant fails to attend before Court
as required
(1) In this section -
prescribed circumstances means
circumstances where a defendant has
been provided with a court attendance
notice, or a bail notice, in respect of a
summary offence and either -
(a) fails to attend before the Court as
required by that notice; or
(b) following an adjournment of
proceedings relating to that
offence, fails to attend before the
Court on the day, and at the time
and place, specified by the Court
for the resumption of those
proceedings.
(2) If the Court is satisfied that the prescribed
circumstances exist, the Court may do any one
or more of the following:
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(a) in the case of -
(i) a failure to attend before the
Court as required by a court
attendance notice, issue an arrest
warrant against the defendant in
accordance with, and if satisfied
as required by, section 54(2); or
(ii) a failure to attend before the
Court as required by a bail notice,
issue an arrest warrant against the
defendant in accordance with
section 5(5) of the Bail Act 1994;
or
(iii) a failure to attend before the
Court as required by the Court,
issue an arrest warrant against the
defendant;
(b) subject to sections 28 and 93, proceed to
hear and determine the charge in the
absence of the defendant;
(c) adjourn the proceedings on any terms
that the Court considers appropriate.
Division 4 - Case management and case management
hearings
85. Object of Division
The principal object of this Division is to ensure
that proceedings on a charge for a summary
offence are managed -
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(a) in a manner that promotes the just and
efficient determination of matters of fact
and law; and
(b) in a manner that maximises the effective
use of available judicial and
administrative resources; and
(c) in a manner that eliminates any lapse of
time, from the day on which proceedings
are commenced until their final
determination, that is not reasonably
required for -
(i) the identification of the factual
and legal issues in dispute
between the prosecution and the
defendant; and
(ii) the preparation of the case for the
hearing and determination of the
charge for the offence or for the
other disposition of a matter in
issue.
86. Case management hearing
(1) If the defendant charged with a summary offence
pleads not guilty, the Court, on its own motion
or on the application of the prosecutor or
defendant, may determine that a case
management hearing in respect of the charge
should be conducted.
(2) Despite subsection (1), the Court may not
determine that a case management hearing be
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conducted in respect of a charge for a summary
offence that is an offence to which the defendant
may file a written plea of guilty unless the Court
considers that it is in the interests of justice to do
so.
(3) If the Court determines that a case management
hearing should be conducted, the Court may -
(a) conduct the case management hearing at
any time; or
(b) refer the case management hearing to the
Court constituted differently.
(4) The purposes of a case management hearing
are -
(a) to ascertain the precise issues in dispute
in the hearing of the charge for the
summary offence, whether or not the
issues are of fact or law; and
(b) to explore the possibility of disposing of
any such charge other than by way of the
hearing of the charge; and
(c) to enable the duration of the hearing to
be estimated as accurately as possible;
and
(d) to determine what evidence may be
proved by affidavit or by agreement of
the parties; and
(e) to facilitate the course of the hearing of
the charge.
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87. Obligation to be ready to commence case
management hearing
(1) If the Court determines that a case management
hearing is to be held, the prosecution and the
defendant are to be prepared to commence the
hearing on the day set by the Court.
(2) If the day for a case management hearing has
been set, the hearing is not to be adjourned
unless the Court so determines after taking into
account the obligations of the parties under
subsection (1).
88. Listing of case management hearing for earlier day
The Court, on its own motion or on the
application of the prosecutor or the defendant,
may list a case management hearing for a day
that is earlier than the day previously set.
89. Order relating to case management hearing
The Court may do one or more of the following
from time to time during a case management
hearing:
(a) order that the whole or any part of the
case management hearing (including any
sentence indication) be heard in closed
court;
(b) prohibit the publication of a report of the
whole or a part of a case management
hearing (including any sentence
indication) or of any information, or a
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report of any information, obtained or
derived from a case management
hearing;
(c) prohibit the publication of any particular
material, or material of a particular kind,
that is relevant to a case management
hearing.
90. Sentence indication
(1) In this section -
victim has the same meaning as in section 81A
of the Sentencing Act 1997.
(2) At any time during a case management hearing
in respect of a charge for a summary offence, the
Court, on its own motion or on the application of
the prosecutor or defendant, may indicate the
sentence that it would impose on the entering of
a plea of guilty to the charge or any alternative
charge of which the defendant could be found
guilty.
(3) Before giving a sentence indication, the Court is
to -
(a) allow each victim in respect of the
offence who would, had the defendant
been convicted of the offence, be entitled
to make a statement under section
81A(2) of the Sentencing Act 1997 to
provide a written statement that -
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(i) gives particulars of any injury,
loss or damage suffered by the
victim as a direct consequence of
the offence; and
(ii) describes the effects on the victim
of the commission of the offence;
and
(b) consider all such statements provided to
the Court.
(4) The Court may allow a person to provide a
statement under subsection (3) on behalf of a
victim if the Court considers it appropriate and
just in the circumstances.
(5) A decision to give, or refuse to give, a sentence
indication does not give rise to a review under
Part 12.
(6) If a sentence indication is given in respect of a
charge for a summary offence, the hearing of the
charge, and any other related proceeding, that
occurs after the giving of the sentence indication
is to be conducted by the Court constituted
differently to the Court that gave the sentence
indication.
(7) The giving of a sentence indication in respect of
a charge for a summary offence does not affect
any right to apply for a review of a sentence
imposed in respect of a plea or finding of guilty
to the charge.
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Division 5 - Miscellaneous
91. Review of progress of proceedings
(1) At any time during proceedings in respect of a
charge for a summary offence to which the
defendant has pleaded not guilty, the Court, on
its own motion or on the application of the
prosecutor or defendant, may review the
progress of proceedings on the charge and make
orders, or give directions, for the purposes of the
efficient and timely disposal of the proceedings
as the Court considers just and expedient.
(2) Before the day set for the review of the progress
of proceedings on a charge for a summary
offence, the Court is to give notice of the review
and the day, time and place of the review to the
prosecutor and defendant.
92. Joinder of hearings
At any stage in proceedings relating to a
summary offence, the Court may order that other
charges against the defendant also be heard at
the hearing if the Court considers that it is in the
interests of justice to do so.
93. Charge sheet evidence in certain cases
If a defendant who is issued with a court
attendance notice and provided with a charge
sheet in respect of an offence prescribed for the
purposes of section 162(1)(h) -
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(a) does not attend as required by the court
attendance notice and has not filed a
written plea to the charge; or
(b) files a written plea of not guilty to the
charge but, after being served with a
further court attendance notice, does not
attend before the Court in accordance
with that further court attendance notice;
or
(c) pleads not guilty in answer to the charge,
either in person or through his or her
legal representative, but does not attend
the Court for the hearing of the charge
either in person or through his or her
legal representative -
the charge sheet may be received by the Court as
sufficient evidence of the matters contained in it.
94. Person other than defendant may also be guilty of
summary offence
(1) If a summary offence is committed and the
contrary intention does not appear in the Act
creating the offence, each of the following
persons is guilty of the offence and may be
charged with actually committing it:
(a) the person who actually commits the
offence;
(b) a person who does any act or makes any
omission for the purpose of enabling or
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aiding another person to commit the
offence;
(c) a person who abets another person in
committing the offence;
(d) a person who instigates another person to
commit the offence.
(2) If a person instigates another person to do an act
or make an omission of such a nature that, if he
or she had himself or herself done the act or
made the omission, the act or omission would
have constituted a summary offence on his or her
part, that person -
(a) is guilty of the same offence as if he or
she had himself or herself done the act or
made the omission; and
(b) may be charged with committing the
offence.
95. Summary offences committed in pursuit of common
purpose
If -
(a) 2 or more persons form a common
intention to pursue an unlawful purpose
in conjunction with one another; and
(b) in the pursuit of that purpose a summary
offence is committed of such nature that
its commission was a probable
consequence of the pursuit of that
purpose -
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each of those persons is taken to have committed
the summary offence.
96. Alternative verdicts of, or relating to, attempting to
commit summary offence, &c.
(1) If, on the hearing of a charge for a summary
offence, the complete commission of the offence
charged is not proved but the evidence
establishes that the defendant attempted to
commit that offence, the offence of attempting to
commit that offence may be found proved.
(2) If, on the hearing of a charge for an attempt to
commit a summary offence, the evidence
establishes that the defendant has completed the
commission of the summary offence, the
summary offence may be found proved.
(3) If an attempt by a person to commit a summary
offence has been found proved, the person is not
liable to be tried for that summary offence.
97. What constitutes offence of attempting to commit
an offence
(1) For the purposes of this Part, an attempt to
commit an offence is an act or omission that is -
(a) done or made with the intention to
commit that offence; and
(b) forms part of a series of events which, if
not interrupted, would constitute the
commission of that offence.
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(2) The offence of attempting to commit another
offence (in this section referred to as the primary
offence) may be committed -
(a) even though the offender voluntarily
desists from the actual commission of the
primary offence; and
(b) whether or not it was possible under the
circumstances to commit the primary
offence.
(3) The point at which the series of events
mentioned in subsection (1)(b) begins depends
on the circumstances of the particular case.
(4) Whether an act or omission of a person is or is
not too remote to constitute an attempt to
commit a primary offence is a question of law.
98. Attempts to commit summary offence triable
summarily
An attempt to commit a summary offence is
triable and punishable in the same manner as the
offence attempted.
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PART 8 - INDICTABLE OFFENCES TRIABLE
SUMMARILY AND PROCEDURES
Division 1 - Minor crimes
99. Minor crimes triable summarily
(1) If a defendant attends before the Court on a
charge for an offence under a section of the
Criminal Code specified in Schedule 1 and the
value stated on the charge sheet does not exceed
$20 000, the section creating that offence is
taken to have created a summary offence unless,
and until, the Court determines under
subsection (3) that the offence is to be dealt with
by the Supreme Court.
(2) Despite subsection (1), if -
(a) the defendant is charged with more than
one offence referred to subsection (1);
and
(b) the total value specified in the charge
sheet in respect of which those offences
are committed is $20 000 or more -
none of those offences is taken to have created a
summary offence and subsection (1) does not
apply.
(3) At any time during proceedings for an offence
referred to in subsection (1), the Court may
determine that it is appropriate for the offence to
be dealt with by the Supreme Court and,
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accordingly, commit the defendant to the
Supreme Court to be dealt with.
(4) If the Court under subsection (3) makes a
determination that the offence is to be dealt with
by the Supreme Court, the section that created
the offence is no longer to be taken to have
created a summary offence.
100. Procedure relating to minor crime
(1) Unless and until the Court determines under
section 99 that a minor crime is to be dealt with
by the Supreme Court, Part 7 (other than
sections 96, 97 and 98) and all other relevant
provisions of this Act relating to summary
offences, apply to the proceedings, and the
procedure to be followed in proceedings, on the
charge for the minor crime.
(2) If the Court determines under section 99 that a
minor crime is to be dealt with by the Supreme
Court, Part 9 and all other relevant provisions of
this Act relating to indictable offences apply to
the proceedings, and the procedure to be
followed in proceedings, on the charge for that
minor crime.
Division 2 - Electable offences
101. Electable offence may be tried summarily
(1) If a defendant attends before the Court on a
charge for an offence under -
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(a) a section of the Criminal Code specified
in Part 1 of Schedule 2; or
(b) a section of the Criminal Code specified
in Part 2 of Schedule 2 and the value
specified in the charge sheet exceeds
$20 000 but does not exceed $100 000 -
the defendant may elect to have the offence dealt
with by the Court or by the Supreme Court.
(2) Despite subsection (1), if -
(a) the defendant is charged with more than
one offence referred to in that subsection;
and
(b) the total value specified in the charge
sheet in respect of which those offences
are committed exceeds $100 000 -
the defendant may not elect to have any of the
offences dealt with by the Court or Supreme
Court.
(3) If -
(a) a defendant attends before the Court on a
charge for an offence under section 113
of the Criminal Code; and
(b) the prosecutor consents -
the defendant may elect to have the offence dealt
with by the Court or by the Supreme Court.
(4) If -
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(a) a defendant attends before the Court on a
charge for an offence under section 105
of the Criminal Code in relation to an
offence under the Traffic Act 1925, the
Vehicle and Traffic Act 1999, the Heavy
Vehicle National Law (Tasmania) Act
2013 or the Road Safety (Alcohol and
Drugs) Act 1970; and
(b) the Court and prosecutor agree that the
offence is suitable to be tried before the
Court -
the defendant may elect to have the offence dealt
with by the Court or by the Supreme Court.
(5) If -
(a) a defendant -
(i) elects, under section 107(4) or
section 109(1) or a provision of
another Act, to have an electable
offence dealt with by the Court;
or
(ii) is taken to have elected to have
an electable offence dealt with by
the Court by reason of
section 111; or
(b) the Court, under a provision of another
Act, determines that an electable offence
be dealt with by the Court -
the section that creates the offence is taken to
have created a summary offence.
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(6) At any time during proceedings for an electable
offence (whether before or after the defendant
has made an election under section 107(4) or
section 109(1) or is taken to have made an
election under section 111), the Court may
determine that it is appropriate for the offence to
be dealt with by the Supreme Court and,
accordingly, may commit the defendant to the
Supreme Court to be dealt with.
(7) In considering whether to make a determination
under subsection (6), the Court is to take into
account -
(a) the seriousness of the alleged offence;
and
(b) the number and nature of any other
charges for offences pending against the
defendant.
(8) If the Court under subsection (6) determines that
an offence is to be dealt with by the Supreme
Court and the determination is made before the
defendant has made, or is taken to have made, an
election, the section that creates the offence
continues to create an indictable offence.
(9) If the Court under subsection (6) determines that
an offence is to be dealt with by the Supreme
Court and the determination is made after the
defendant has elected to have the offence dealt
with by the Court, the section that creates the
offence is no longer taken to have created a
summary offence but reverts to having created
an indictable offence.
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102. Procedure relating to electable offence
(1) Part 9 and all other relevant provisions of this
Act relating to indictable offences apply to the
proceedings, and the procedure to be followed in
proceedings, on a charge for an electable offence
until -
(a) the defendant makes an election under
section 107(4) or section 109(1) or is
taken, under section 111, to have made
such an election; or
(b) the Court determines, under
section 101(6) or a provision of another
Act, that the electable offence is to be
dealt with by the Supreme Court.
(2) If -
(a) a defendant on a charge for an electable
offence elects under section 107(4) or
section 109(1) to have the offence dealt
with by the Supreme Court; or
(b) the Court determines, under
section 101(6) or a provision of another
Act, that an electable offence is to be
dealt with by the Supreme Court -
Part 9 and all other relevant provisions of this
Act relating to indictable offences apply to the
proceedings, and the procedure to be followed in
the proceedings, on the charge from the time that
election or determination is made.
(3) If -
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(a) a defendant on a charge for an electable
offence elects under section 107(4) or
section 109(1) to have the offence dealt
with by the Court or, under section 111,
is taken to have made such an election;
or
(b) the Court determines, under a provision
of another Act, that an electable offence
is to be dealt with by the Court -
Part 7, other than sections 96 and 97, and all
other relevant provisions of this Act relating to
summary offences apply to the proceedings, and
the procedure to be followed in proceedings, on
the charge for the electable offence from the
time that election or determination is made.
103. Court to warn defendant of need for alibi notice
(1) In this section -
evidence in support of an alibi means
evidence tending to show that, by reason
of the presence of the defendant at a
particular place or in a particular area at a
particular time, the defendant was not, or
was unlikely to have been, at the place
where the elected summary offence is
alleged to have been committed at the
time of its alleged commission.
(2) If -
(a) under section 107(4) or section 109(1) or
a provision of another Act, a defendant
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on a charge for an electable offence
elects to have the offence dealt with by
the Court or, under section 111, is taken
to have made such an election; or
(b) under a provision of another Act, the
Court determines that the charge for an
electable offence is to be dealt with by
the Court -
and the defendant enters a plea, other than a plea
of guilty, to the charge, the Court is to warn the
defendant that he or she may not be permitted to
adduce evidence in support of an alibi, or call a
witness to give evidence in support of an alibi,
unless he or she serves on the prosecutor, in
accordance with section 104, a notice giving
particulars of the alibi.
104. Alibi evidence if elected summary offence
(1) In this section -
alibi notice means a notice required to be
served on a prosecutor by subsection (3);
evidence in support of an alibi means
evidence tending to show that, by reason
of the presence of the defendant at a
particular place or in a particular area at a
particular time, the defendant was not, or
was unlikely to have been, at the place
where the elected summary offence is
alleged to have been committed at the
time of its alleged commission;
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prescribed period means -
(a) the period of 7 days from the day
on which the defendant was
informed, in accordance with
section 103, of the requirements
of this section; or
(b) if the defendant was not so
informed, the period of 7 days
from the day on which the
defendant received written notice
from the prosecutor of the
requirements of this section.
(2) In computing the prescribed period, a day that is
an excluded day for the purposes of section 29 of
the Acts Interpretation Act 1931 is to be
disregarded.
(3) A defendant in a hearing of a charge for an
elected summary offence is not entitled, without
the leave of the Court, to adduce evidence in
support of an alibi unless the defendant has
served on the prosecutor a written notice of the
particulars of that alibi within the prescribed
period.
(4) A defendant in a hearing on a charge for an
elected summary offence is not entitled, without
the leave of the Court, to call any other person to
give evidence in support of an alibi for the
defendant -
(a) unless the alibi notice -
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(i) includes the name and address of
the other person; or
(ii) if the name or address, or both, of
the other person is not known to
the defendant at the time when
the alibi notice is given to the
prosecutor, includes any
information in the defendant's
possession which might be of
material assistance in finding the
other person; or
(b) if the name or address, or both, of the
other person is not included in the alibi
notice, unless the Court is satisfied that
the defendant took, before giving the
alibi notice, and continued to take all
reasonable steps to ascertain that name or
address, or both; or
(c) if the name or address, or both, of the
other person is not included in the alibi
notice but the defendant subsequently -
(i) ascertains the name or address, or
both, of the other person; or
(ii) receives information which might
be of material assistance in
ascertaining that name or address,
or both -
unless the defendant as soon as
practicable gives written notice to the
prosecutor of the name or address, or
both, or the information; or
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(d) if the defendant is notified, in writing, by
the prosecutor that the other person has
not been traced by the name or at the
address given by the defendant to the
prosecutor, unless -
(i) as soon as practicable after being
so notified, the defendant gives
written notice to the prosecutor of
any information as to the name
and address of the other person
that is then in the possession of
the defendant; or
(ii) as soon as practicable on
subsequently receiving any such
information, the defendant gives
written notice to the prosecutor of
that information.
(5) The Court, under subsection (3), must not refuse
leave for a defendant to adduce evidence in
support of an alibi if the Court considers that the
defendant -
(a) was not warned by the Court under
section 103; or
(b) was not informed by the prosecutor, in
writing -
of the requirements of this section to serve
written notice of the particulars of the alibi on
the prosecutor.
(6) Subject to any directions of the Court, evidence
to disprove an alibi may be given before or after
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evidence in support of the alibi is given unless
the Court directs that such evidence is to be
given at a specified time or during a specified
period.
(7) An alibi notice or other notice required to be
given to the defendant or prosecutor under this
section is to be given in accordance with the
rules of court.
Division 3 - Miscellaneous
105. Attempts to commit minor crime or elected
summary offence
(1) If, on the hearing before the Court of a charge
for a minor crime or an elected summary
offence, the complete commission of the minor
crime or elected summary offence is not proved
but the evidence establishes that the defendant
attempted to commit that minor crime or elected
summary offence, the offence of attempting to
commit the minor crime or elected summary
offence may be found proved.
(2) If, on the hearing before the Court of a charge
for a minor crime, or an elected summary
offence, that is comprised of an attempt to
commit an offence, the evidence establishes that
the defendant has completed the commission of
the offence, the offence may be found proved.
(3) If, on the hearing before the Court of a charge
for a minor crime, or an elected summary
offence, that is comprised of an attempt to
commit an offence, that minor crime or elected
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summary offence has been found proved by the
Court, the person is not liable to be tried for the
offence which was attempted.
106. Hearing under this Part
(1) In this section -
alternative offence, in relation to a created
summary offence, is any other offence of
which the defendant might be convicted,
under Chapter XXXIX of Part IX of the
Criminal Code or the other Act that
created the indictable offence, on
indictment on the same facts on which
the charge for the created summary
offence is based;
created summary offence means an offence
that, by reason of section 99, 101 or 105,
is taken to have been created a summary
offence.
(2) At a hearing for a created summary offence
under this Part, an alternative offence may be
found proved by the Court if -
(a) the defendant is found not guilty of the
created summary offence; and
(b) it is established by the evidence that the
alternative offence has been committed
by the defendant.
(3) If -
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(a) the Court has found the charge for a
created summary offence proved against
the defendant; and
(b) the Court considers for any reason that
the sentencing of the defendant is to be
dealt with by the Supreme Court -
the Court may commit the defendant to the
Supreme Court for sentence.
(4) If under subsection (3) a defendant has been
committed to the Supreme Court for sentence,
the district registrar is to forward to the Registrar
of the Supreme Court the following documents:
(a) the charge sheet;
(b) the record of the proceedings;
(c) copies of all bail orders;
(d) the committal order.
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PART 9 - INDICTABLE OFFENCE PROCEDURES
107. First attendance before Court for indictable offence
(1) On the first attendance before the Court of a
defendant charged with an indictable offence,
the Court -
(a) must cause the charge to be read to the
defendant, or explain to the defendant, in
simple terms, the offence with which he
or she is charged; and
(b) if the defendant is not represented by a
legal practitioner, must explain to the
defendant, in the manner specified by the
rules of court, the defendant's rights and
duties under this Act in respect of the
charge; and
(c) must invite the defendant to enter a plea
to the charge; and
(d) if the offence is one in respect of which
the defendant, under section 101, is
entitled to elect to have the offence dealt
with either by the Court or the Supreme
Court, must invite the defendant to make
that election.
(2) The Court is not required to comply with
subsection (1)(a) if it is satisfied that the
defendant -
(a) is represented by a legal practitioner; or
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(b) has received a copy of, and understands
the nature of, the charge.
(3) On the first attendance before the Court of a
defendant on a charge for an indictable offence,
the defendant is to -
(a) plead to the offence as specified in
section 110; or
(b) state that he or she does not wish to plead
to the offence.
(4) On the first attendance before the Court of a
defendant on a charge for an indictable offence -
(a) if the defendant enters a plea to the
offence as charged and the offence is one
in respect of which the defendant, under
section 101 or a provision of another Act,
is entitled to elect to have the offence
dealt with either by the Court or the
Supreme Court, the defendant is to make
that election unless the Court determines
otherwise in the interests of justice; or
(b) if the defendant enters a plea to the
offence as charged and the offence is one
in respect of which the Court, under a
provision of another Act, may determine
that the offence be dealt with either by
the Court or the Supreme Court, the
Court is to make that determination
unless the Court determines otherwise in
the interests of justice; or
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(c) if, under section 110(1)(c), the defendant
pleads not guilty to the offence as
charged, being an offence which is not an
electable offence, but pleads guilty to
another offence which is an electable
offence, the defendant and the Court are
to proceed as specified in paragraph (b)
in relation to that other offence; or
(d) if the defendant states that he or she does
not wish to plead to the offence as
charged and the offence is one in respect
of which the defendant, under
section 101 or a provision of another Act,
is entitled to elect to have the offence
dealt with either by the Court or the
Supreme Court, the defendant may -
(i) make that election; or
(ii) state that he or she does not wish
to make that election until he or
she enters a plea to the offence as
charged; or
(e) if the defendant states that he or she does
not wish to plead to the offence as
charged and the offence is one in respect
of which the Court, under a provision of
another Act, may determine that the
offence be dealt with either by the Court
or the Supreme Court, the Court may
make or defer the making of that
determination as it considers appropriate.
(5) If the defendant -
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(a) enters a plea, other than a plea of guilty;
or
(b) does not plead -
to the offence as charged, the Court is to adjourn
the proceedings for a period not exceeding 4
weeks.
(6) Subsection (5) does not apply if -
(a) the offence as charged is one in respect
of which the defendant, under
section 101 or a provision of another Act,
is entitled to elect to have the offence
dealt with either by the Court or the
Supreme Court and the defendant has
elected to have the offence dealt with by
the Court; or
(b) the offence as charged is one in respect
of which the Court, under a provision of
another Act, may determine that the
offence be dealt with either by the Court
or the Supreme Court and the Court has
determined that the offence dealt with by
it.
108. Notice of details of legal representation of defendant
to be provided following first attendance
If proceedings for an indictable offence are
adjourned at the first attendance before the Court
of the defendant, the legal representative of the
defendant is to notify the prosecutor, within the
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meaning of section 60, of his or her
representation as soon as reasonably practicable.
109. Attendance before Court for indictable offence
following adjournment
(1) On the attendance before the Court of a
defendant charged with an indictable offence
following an adjournment of the proceedings
under section 107(5) -
(a) if the defendant has not entered a plea, he
or she is to plead to the offence as
specified in section 110; and
(b) if the charge is one in respect of which -
(i) the defendant, under section 101
or a provision of another Act, is
entitled to elect to have the
offence dealt with either by the
Court or the Supreme Court but
the defendant has not made that
election, the defendant is to make
that election; or
(ii) the Court, under a provision of
another Act, may determine that
the offence be dealt with either
by the Court or the Supreme
Court but the Court has not made
that determination, the Court is to
make that determination -
unless the Court determines that, in the particular
circumstances, the interests of justice require that
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proceedings be further adjourned before the
defendant be required to make an election or
plead to the charge or the Court be required to
make that determination.
(2) If -
(a) the Court determines under
subsection (1) that the defendant is not
required to make an election or plead to
the charge, or that the Court is not
required to make a determination; and
(b) the proceedings are further adjourned -
that subsection applies to the next attendance of
the defendant before the Court.
110. Entering plea
(1) In pleading to an indictable offence, the
defendant may plead -
(a) that he or she is guilty of the offence
charged; or
(b) that he or she is not guilty of the offence
charged; or
(c) if the Director of Public Prosecutions
consents in writing, that he or she is not
guilty of the offence charged but is guilty
of another offence of which he or she
might be convicted for the offence
charged; or
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(d) that further proceedings may not be taken
in respect of the charge; or
(e) that he or she has cause to show why he
or she should not be convicted of the
offence charged; or
(f) that he or she has previously been found
guilty or not guilty of the offence
charged.
(2) If the defendant, on being asked to plead to a
charge under section 107 or 109, stands mute,
refuses to plead or does not answer directly to
the charge, the defendant is taken to have
pleaded not guilty.
(3) If the defendant pleads guilty and is to be
sentenced by the Supreme Court -
(a) the plea is to be recorded by the Court;
and
(b) that record is to be signed, or authorised
as being correct, by the defendant in the
manner prescribed by the rules of court.
111. Failure to make election, &c.
If the defendant, on being asked to make an
election under section 107 or 109, stands mute or
refuses to, or does not, make a definite election,
he or she is taken to have elected to have the
offence dealt with by the Court.
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112. Committal to Supreme Court
(1) When a defendant charged with an indictable
offence that is not a minor crime or an electable
offence enters a plea to the charge, the Court
must commit the defendant to the Supreme
Court for sentence or trial.
(2) When a defendant charged with an electable
offence has entered a plea to the charge and also
elected to have the offence dealt with by the
Supreme Court, the Court must commit the
defendant to the Supreme Court for sentence or
trial.
(3) On the making of an order under subsection (1)
or (2) that a defendant be committed to the
Supreme Court -
(a) the Court must remand the defendant in
custody or admit him or her to bail to
attend before the Supreme Court on a day
to be fixed by the Supreme Court; and
(b) the relevant district registrar is to forward
to the Supreme Court, to the Director of
Public Prosecutions or the
Commonwealth Director of Public
Prosecutions, as appropriate, and to the
defendant the following documents and
other materials:
(i) the charge sheet;
(ii) the record of proceedings;
(iii) copies of all bail orders;
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(iv) the committal order.
113. Proceedings following preliminary proceedings
order by Supreme Court
(1) In this section -
certified, in relation to a transcript of evidence
recorded by means other than direct
recording on paper, means the
certification by the person who
transcribed the recording that the
transcript is a true and accurate record of
the recording;
endorsed recording, in relation to the
statement of a witness who is an affected
person, means a copy of a written or
other recording of a statement made by
the affected person that is endorsed with,
or accompanied by, a certificate that -
(a) purports to be made by a person
who was present when the
affected person made the
statement; and
(b) states that the copy of the
recording is a true and accurate
copy;
transcribe means transcribe, or print, onto
paper.
(2) On the receipt by a district registrar of a copy of
a preliminary proceedings order, the Court is to
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conduct the preliminary proceedings in
accordance with that order.
(3) The defendant must be present during
preliminary proceedings unless the Court
permits the preliminary proceedings to proceed
in the absence of the defendant.
(4) In preliminary proceedings -
(a) the evidence of a witness, other than an
affected person, is to be taken by the
examination, cross-examination and re-
examination of the witness before the
Court unless any other Act provides
otherwise; and
(b) the evidence of a witness who is an
affected person is to be taken by the
receipt by the Court of the endorsed
recording of the statement of the witness
and the examination, cross-examination
and re-examination of the witness as
specified by subsection (5); and
(c) the evidence of a witness given in
examination, cross-examination or re-
examination is to be transcribed and the
transcript is to be certified.
(5) A witness who is an affected person may only -
(a) be cross-examined and re-examined on
matters specified in the preliminary
proceedings order in accordance with the
conditions and limitations specified in
that order; and
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(b) be examined, cross-examined and re-
examined on matters not provided for in
the preliminary proceedings order if the
Court is satisfied that -
(i) to do so would not conflict with
the preliminary proceedings
order; and
(ii) exceptional circumstances exist;
and
(iii) it is necessary to do so in the
interests of justice.
(6) A decision of the Court to allow the
examination, cross-examination or re-
examination of a witness who is an affected
person under subsection (5)(b) is final and not
subject to appeal or other review.
(7) The room or place in which the Court conducts
the preliminary proceedings is a closed court.
(8) Despite subsection (7), the following persons
may not be excluded from the room or place in
which the Court is conducting the preliminary
proceedings:
(a) the prosecutor;
(b) the defendant;
(c) the legal representative of the prosecutor
and the defendant;
(d) a person who has entered into a
recognizance as referred to in section
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7(5)(b) of the Bail Act 1994 as a
condition of bail being granted to the
defendant under that Act;
(e) a person who has given a surety or
undertaking under the rules of court as a
condition of bail being granted to the
defendant.
(9) On the application of the prosecutor or the
defendant, the Court may allow a person to be
present in the room or place in which the Court
is conducting the preliminary proceedings so as
to provide a witness or the defendant with
support.
(10) The Court, under subsection (9), may allow a
person to be present in the room or place in
which the Court is conducting the preliminary
proceedings only if satisfied that the person is
not, or is not likely to be, a witness in, or a party
to, the preliminary proceedings or at the hearing
of the charge for the offence.
(11) At any time during preliminary proceedings, the
Court may request the Supreme Court to give
directions in relation to the conduct or
finalisation of the preliminary proceedings.
(12) On the request of the Court under
subsection (11), the Supreme Court may give
such directions relating to the conduct or
finalisation of the preliminary proceedings as it
considers appropriate.
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(13) When the Court has concluded the preliminary
proceedings or cannot proceed, or proceed
further, with them -
(a) the Court must remand the defendant in
custody or admit him or her to bail to
attend before the Supreme Court on a day
to be fixed by the Registrar of the
Supreme Court; and
(b) the relevant district registrar is to forward
the transcripts of all evidence given in
the preliminary proceedings, and all
endorsed recordings of the statements of
witnesses who are affected persons used
in the preliminary proceedings, to the
following courts and persons:
(i) the Supreme Court;
(ii) the Director of Public
Prosecutions or the
Commonwealth Director of
Public Prosecutions, as
appropriate;
(iii) the legal practitioner representing
the defendant or, if the defendant
is not so represented, the
defendant; and
(c) the relevant district registrar is to forward
all exhibits tendered in evidence in the
preliminary proceedings to the Director
of Public Prosecutions or the
Commonwealth Director of Public
Prosecutions, as appropriate.
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114. Prohibition on publishing preliminary proceedings
(1) A person must not publish -
(a) any information given or produced in
evidence before the Court in preliminary
proceedings; or
(b) an account of the preliminary
proceedings; or
(c) any information relating to preliminary
proceedings -
unless the Court allows the publication of such
information or such an account.
Penalty: Fine not exceeding 500 penalty units
or imprisonment for a term not
exceeding 24 months, or both.
(2) Subsection (1) does not apply to the publication
of information, or an account, by the prosecutor
or the defendant to another person if the
publication is necessary for the prosecutor or
defendant to effectively conduct his or her case
in relation to the prosecution of the offence to
which the preliminary proceedings related.
(3) If a provision of any other Act is inconsistent
with subsection (1), subsection (1) prevails
unless that other Act specifically provides
otherwise.
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PART 10 - APPLICATION PROCEDURES
115. Interpretation of Part 10
(1) In this Part, unless the contrary intention
appears -
application proceedings means proceedings
for which the Court has jurisdiction,
other than proceedings for an offence.
(2) In this Part -
(a) a party claiming relief by means of an
application referred to in section 116, or
an oral application referred to in
section 120, is called an applicant; and
(b) any other party to application
proceedings is called a respondent.
(3) In this Part, if a party to application proceedings
is required to do or omit to do any act, it is
sufficient if the party's legal representative does
or omits to do the act unless the context requires
otherwise.
116. Commencing application proceedings
Application proceedings are commenced by
filing an application, together with an affidavit
referred to in section 118, with the Court.
117. Form of application
An application under section 116 is to -
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(a) be in writing and in an approved form;
and
(b) specify the parties to the application as at
the time the application is made; and
(c) be signed by a prosecutor, public officer,
applicant or applicant's legal
representative; and
(d) specify the provision of the legislation, if
any, under which the order or relief is
sought; and
(e) specify the grounds on which the
application is based; and
(f) specify the order or relief sought; and
(g) include any other information, or
matters, prescribed by the rules of court.
118. Affidavit accompanying application
(1) An application under section 116 is to be
accompanied by an affidavit in support of the
application.
(2) An affidavit is to state the nature of the
applicant's claim and the material facts on which
that claim is based.
119. Service of application made under section 116
(1) A copy of an application under section 116,
together with a copy of its accompanying
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affidavit, must be served on all respondents to
the application unless -
(a) the Court orders otherwise; or
(b) the rules of court provide otherwise; or
(c) another Act provides otherwise.
(2) If another Act provides that an application need
not be served on one or more respondents
without reference to the accompanying affidavit,
the affidavit need not be served on any
respondent on which the application need not be
served.
120. Oral application
Despite sections 116, 117, 118 and 119, a person
may commence application proceedings by oral
application to the Court if the Court allows it
and, in such circumstances, the Court may give
directions -
(a) as to whether or not the application may
be heard in the absence of the respondent
or another party to the application
proceedings; and
(b) as to whether or not the respondent or
another party to the application
proceedings must be notified of the oral
application; and
(c) as to whether or not any other
requirements of this Part must be
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complied with by any party to the
application proceedings; and
(d) in relation to any other matter that the
Court considers relevant.
121. Conduct of application proceedings
Except as otherwise provided by this or any
other Act, Part 4 applies, with such
modifications as are necessary, to application
proceedings as if -
(a) the application proceedings were
proceedings for a summary offence; and
(b) the applicant were the prosecutor; and
(c) the respondent were the defendant.
122. Directions for modifying application of Act to
application proceedings
(1) The Chief Magistrate may issue written practice
directions with respect to the modifications
necessary in the application of this Act to
application proceedings as if they were
proceedings for a summary offence.
(2) Practice directions issued under subsection (1)
are to be published in such manner as the Chief
Magistrate determines.
(3) On the application of a person who intends to
commence application proceedings, a district
registrar may give directions with respect to -
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(a) the manner in which a provision of this
Act applies to the proposed application
proceedings; or
(b) a clarification of how a direction issued
under subsection (1) applies to the
proposed application proceedings.
(4) On the application of a party to application
proceedings, a district registrar or the Court may
give directions with respect to -
(a) the manner in which a provision of this
Act applies to the application
proceedings; or
(b) a clarification of how a direction issued
under subsection (1) applies to the
application proceedings.
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PART 11 - BREACH OF DUTY PROCEDURES
123. Procedure for breach of duty as if it were summary
offence
This Act applies, with such modifications as are
necessary, to a breach of duty as if the breach of
duty were a summary offence.
124. Directions for modifying application of Act to
breach of duty
(1) The Chief Magistrate may issue written practice
directions with respect to the modifications
necessary in the application of this Act to a
breach of duty as if it were a summary offence.
(2) Practice directions issued under subsection (1)
are to be published in such manner as the Chief
Magistrate determines.
(3) On the application of a person who intends to
commence proceedings for a breach of duty, a
district registrar may give directions with respect
to -
(a) the manner in which a provision of this
Act applies to the proposed proceedings
for the breach of duty; or
(b) a clarification of how a direction issued
under subsection (1) applies to the
proposed proceedings for the breach of
duty.
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(4) On the application of a party to proceedings for a
breach of duty, a district registrar or the Court
may give directions with respect to -
(a) the manner in which a provision of this
Act applies to the proceedings for the
breach of duty; or
(b) a clarification of how a direction issued
under subsection (1) applies to the
proceedings for the breach of duty.
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PART 12 - APPEALS AND REVIEWS
Division 1 - Preliminary
125. Interpretation of Part 12
In this Part, unless the contrary intention
appears -
application for review means an application,
made under section 139, for the review of
an order made by the Court when
constituted by a magistrate;
bail order means -
(a) an order made, on a formal bail
application, by the Court that
grants bail to a person, including
any conditions to which the bail
is subject; or
(b) an order made by the Court that
adds, removes or varies any
conditions to which the bail of a
person is subject; or
(c) an order made by the Court that
remands a person in custody
rather than granting bail;
formal bail application means an application
for bail made by a defendant to the
Court, either orally or in writing, where
submissions are made in support of the
application;
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notice of appeal means a notice of appeal
filed under section 132;
order includes conviction for an offence,
finding of guilty in relation to an offence,
dismissal of a charge, determination and
adjudication;
relevant order means the order of the Court
that is the subject of a notice of appeal;
review applicant means a person who has
made an application for review;
review respondent means a person who, under
section 139(2)(b)(i), has been served with
a copy of an application for review.
126. Non-application of Part
An order committing a defendant to be dealt
with by the Supreme Court is not subject to
review or appeal under this Part.
Division 2 - Appeals from bail orders made by authorised
justice or one or more bench justices
127. Appeals from bail orders made by authorised
justice or one or more bench justices
A person who is aggrieved by a bail order made
by the Court when constituted by an authorised
justice or one or more bench justices may appeal
to the Court constituted by a magistrate within
21 days after the making of the bail order.
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128. Procedure for commencing appeal
(1) An appeal under section 127 must be
commenced by notice of appeal filed with a
district registry.
(2) Within 7 days after filing a notice of appeal, the
appellant must serve a copy of the notice of
appeal on the person interested in upholding the
bail order.
(3) The Court constituted by a magistrate may, on
an affidavit setting out reasonable grounds and at
its discretion, extend the period mentioned in
subsection (2) at any time.
129. Procedure for hearing appeal
An appeal under section 127 is to be heard by
way of a new hearing.
130. Power of Court on hearing appeal
On hearing an appeal under section 127, the
Court may do any one or more of the following:
(a) dismiss the appeal;
(b) confirm, vary, amend, set aside or quash
the bail order;
(c) make a new bail order;
(d) refuse to admit to bail the person against
whom the bail order was made and
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remand him or her in custody to a time
and day specified by the Court;
(e) make any other order that the Court
considers appropriate in the
circumstances.
Division 3 - Appeals from orders, other than bail orders,
made by Court constituted by authorised justice or one or
more bench justices
131. Appeal from order, other than bail order, made by
Court constituted by authorised justice or one or
more bench justices
(1) A person who is aggrieved by an order, other
than a bail order, made by the Court when
constituted by an authorised justice or one or
more bench justices may appeal to the Court
constituted by a magistrate within 21 days after
the making of that order.
(2) Pending the determination of an appeal under
this section, the Court, on the application of the
appellant and if satisfied that the application has
been served on the respondent, may do one or
more of the following:
(a) stay any proceedings on an order
appealed against under this section;
(b) suspend the operation of such an order
from its beginning;
(c) admit the appellant or respondent to bail;
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(d) refuse to admit the appellant or
respondent to bail and remand the
appellant or respondent in custody to a
time and day specified by the Court.
(3) An order made under subsection (2) may be
made subject to any conditions that the Court
considers appropriate.
132. Procedure for commencing appeal
(1) An appeal under section 131(1) must be
commenced by notice of appeal filed with a
district registry.
(2) A notice of appeal must -
(a) set out the grounds on which the appeal
is based; and
(b) specify what orders are sought.
(3) Within 7 days after filing a notice of appeal, the
appellant must serve a copy of the notice of
appeal on the person interested in upholding the
order.
(4) The Court constituted by a magistrate may, on
an affidavit setting out reasonable grounds and
in its discretion, extend the period mentioned in
subsection (3) at any time.
133. Procedure for hearing appeal
An appeal under section 131(1) is to be heard by
way of a new hearing.
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134. Power of Court on hearing appeal
(1) On hearing an appeal under section 131(1), the
Court may do any one or more of the following:
(a) dismiss the appeal;
(b) if the court considers that no substantial
miscarriage of justice has occurred, and
even though the matter raised by the
appeal might be decided in favour of the
appellant, dismiss the appeal;
(c) confirm, vary, amend, set aside or quash
the order appealed against;
(d) prohibit the Court, or any person, from
proceeding or proceeding further in
respect of the order appealed against;
(e) amend or cause to be amended, on just
terms, any defect or error in any
proceedings before the Court which gave
rise to the order appealed against;
(f) make any order, and cause any
proceeding to be taken, that the Court
considers necessary on the merits of the
case to secure a final determination of the
matter;
(g) make any order which the Court that
made the order appealed against could
have made.
(2) On hearing an appeal under section 131(1) in
relation to an order that imposes a sentence on
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an offender (whether the appeal is filed by the
prosecutor or the offender), the Court may take
into account any matter relevant to sentencing
that has occurred between the time when the
order appealed against was made and when the
appeal is heard.
(3) Despite subsection (2), if the Court on hearing
an appeal under section 131(1) in relation to an
order that imposes a sentence on an offender
sentences the offender again for the relevant
offence, the Court, in doing so, must not take
into account any element of double jeopardy in
order to impose a less severe sentence than it
would otherwise consider appropriate.
Division 4 - Appeals from bail orders made by magistrate
135. Appeals from bail orders made by magistrate
(1) If a defendant is aggrieved by a bail order made,
on a formal bail application, by the Court when
constituted by a magistrate, the defendant may
appeal to the Supreme Court within 21 days after
the making of the bail order.
(2) If a person, other than a defendant, is aggrieved
by a bail order made, whether or not made on a
formal bail application, by the Court when
constituted by a magistrate, the person may
appeal to the Supreme Court within 21 days after
the making of the bail order.
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136. Procedure for commencing appeal
(1) An appeal under section 135(1) or (2) must be
commenced by notice of appeal filed with the
Registrar of the Supreme Court.
(2) An appeal under section 135(1) or (2) must be
supported by an affidavit specifying the facts on
which the appellant is relying, unless a judge
otherwise orders.
(3) Within 7 days after filing a notice of appeal, the
appellant must serve a copy of the notice of
appeal on the person interested in upholding the
bail order.
(4) A judge may, on an affidavit setting out
reasonable grounds and at his or her discretion,
extend the period mentioned in subsection (3) at
any time.
137. Procedure for hearing appeal
An appeal under section 135(1) or (2) is to be
heard by way of a new hearing.
138. Power of Court on hearing appeal
On hearing an appeal under section 135(1) or
(2), the Supreme Court may do any one or more
of the following:
(a) dismiss the appeal;
(b) confirm, vary, amend, set aside or quash
the bail order;
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(c) make a new bail order;
(d) refuse to admit to bail the person against
whom the bail order was made and
remand him or her in custody to a time
and day specified by the Supreme Court;
(e) make any other order that the Supreme
Court considers appropriate in the
circumstances.
Division 5 - Applications for review of orders by Court
constituted by magistrate
139. Review of order of Court constituted by magistrate
(1) A person who is aggrieved by an order made by
the Court when constituted by a magistrate, other
than a bail order, may apply to the Supreme
Court for a review of that order within 21 days
after the making of that order.
(2) An applicant must -
(a) file the application for review with the
Supreme Court; and
(b) serve a copy of the application on -
(i) the person interested in upholding
the order; and
(ii) the district registrar of the Court
that made the order which is the
subject of the review.
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(3) An application for review must specify that the
application is based on one or more of the
following grounds:
(a) that there was an error or mistake on the
part of the Court on a matter or question
of fact alone, of law alone or of both fact
and law;
(b) that the Court had no jurisdiction to
make the relevant order;
(c) that there has been a miscarriage of
justice.
(4) An application for review must be made
returnable on a day not less than 38 days after
the making of the order to be reviewed.
(5) Before or after the expiry of the period of 21
days referred to in subsection (1), a judge may -
(a) on an affidavit setting out reasonable
grounds; and
(b) at his or her discretion -
extend that period.
140. Duty of district registrar on application for review
(1) In this section -
certified recording means -
(a) a copy of an audio recording,
audio-visual recording or digital
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recording of any Court
proceedings; or
(b) a copy of an audio recording,
audio-visual recording or digital
recording of a part of any Court
proceedings; or
(c) a copy of any portion of a
recording referred to in
paragraph (a) or (b) -
that is endorsed with a certification by
the person who created the copy stating
that the copy is a true copy of that
recording or that portion of that
recording.
(2) A district registrar who has been served with a
copy of an application for review is to -
(a) deliver the copy to the magistrate who
constituted the Court that made the order
as soon as practicable; and
(b) within 7 days after the delivery of the
copy to that magistrate, transmit any
prescribed documents to the Registrar of
the Supreme Court; and
(c) take such steps as are necessary to
preserve any recording of the
proceedings to which the application for
review relates.
(3) After an application for review has been served
under section 139(2), the review applicant and
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the review respondent are entitled to obtain from
the district registrar, on payment of any
prescribed fee, a certified recording of the audio
recording, audio-visual recording or digital
recording of the Court proceedings, or part of the
Court proceedings, to which the application
relates, or any portion of that recording, unless
the district registrar certifies that -
(a) no recording of the relevant Court
proceedings, or relevant part of the Court
proceedings, exists; or
(b) the recording of the relevant Court
proceedings or relevant part of the Court
proceedings, or the recording in the
relevant portion of the recording, is so
unclear as to reasonably prevent the
making of a comprehensible copy.
(4) After an application for review has been served
under section 139(2), the review applicant and
the review respondent are entitled to obtain from
the Registrar of the Supreme Court a copy of the
documents, or any part of the documents,
prescribed for the purposes of subsection (2)(b).
141. Review applicant limited to grounds stated in
application for review
(1) On the hearing of an application for review, the
review applicant is not entitled to rely on a
ground for review not specified in the
application.
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(2) Despite subsection (1), the Supreme Court, on
the hearing of an application for review and on
such terms as to costs and otherwise that it
considers appropriate, may allow the review
applicant to amend the application by doing one
or more of the following:
(a) adding a new ground for the review;
(b) striking out a ground for review;
(c) amending a ground for review.
142. Interlocutory proceedings
On the application of a review applicant or a
review respondent, the Supreme Court, at its
discretion and on such terms as to costs and
otherwise as it considers appropriate, may do
one or more of the following:
(a) vary the return day of the application for
review;
(b) impose conditions as to costs and
security to be complied with before the
application for review is heard;
(c) stay proceedings on the order to be
reviewed or suspend the operation of that
order from the time at which it was
made;
(d) admit the review applicant to bail or
refuse to admit the review applicant to
bail.
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143. Constitution of Supreme Court
(1) For the hearing of an application for review, the
Supreme Court is to be constituted by a single
judge but the judge may -
(a) reserve the application, or any matter
arising from the application, for the Full
Court; or
(b) direct that the application, or any matter
arising from the application, be argued in
the Full Court.
(2) The Full Court of the Supreme Court has power
to hear and determine an application or matter
reserved to it or directed to be argued in it under
subsection (1).
144. Hearing of application for review
(1) At the hearing of an application for review, the
Supreme Court, subject to subsection (2), must
have regard to the documents transmitted to it
under section 140(2)(b) and to any affidavits -
(a) which have been filed, and copies of
which have been provided, under
subsection (3); and
(b) which purport to set out material that was
before the Court that made the order
being reviewed.
(2) In having regard to the documents transmitted to
it under section 140(2)(b), the Supreme Court
may have regard to any notes of evidence only in
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so far as those notes are not contradicted on oath,
by affidavit or otherwise.
(3) On the hearing of an application for review, a
party may not, except with the leave of the
Supreme Court, use an affidavit unless -
(a) the affidavit has been filed with the
Supreme Court; and
(b) a copy of the affidavit has been provided
to every other party at least 48 hours
before the application for review is
returnable.
(4) The Supreme Court may grant the leave referred
to in subsection (3) on such terms as to costs or
otherwise as it considers appropriate.
145. Determining application for review
(1) In this section -
originating Court means the Court;
relevant order, in relation to an application for
review, means the order which is the
subject of the application;
sentencing order means a relevant order
which imposes a sentence on an offender.
(2) At the hearing of an application for review, the
Supreme Court, after considering the evidence
and materials adduced and brought before the
originating Court and such further evidence as
the Supreme Court considers appropriate, is to -
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(a) review the relevant order in so far as the
order relates to the grounds specified in
the application; and
(b) determine the application.
(3) In reviewing a relevant order and determining an
application for review, the Supreme Court may
do one or more of the following:
(a) dismiss the application;
(b) if the Supreme Court considers that no
substantial miscarriage of justice has
occurred even though the matter raised
by the applicant might be decided in
favour of the applicant, dismiss the
application;
(c) confirm, vary, amend, rescind, set aside
or quash the relevant order;
(d) remit the matter to the originating Court,
with or without a direction in law;
(e) order that the matter be re-tried by the
originating Court;
(f) prohibit the originating Court, or any
other person, court or tribunal, from
proceeding or further proceeding in
respect of the relevant order;
(g) amend, or cause to be amended, on such
terms as are just, a defect or error in any
proceedings before the originating Court;
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(h) make any order, and cause any
proceeding to be taken, as the Supreme
Court considers necessary to secure a
final determination of the application on
the merits of the case;
(i) exercise any power which the Supreme
Court might exercise upon habeas
corpus or an order of review under the
Judicial Review Act 2000;
(j) exercise any power that might have been
exercised by the originating Court.
(4) In reviewing a sentencing order and determining
an application for review (whether the
application is made by the prosecutor or the
offender), the Supreme Court, in exercising a
power in relation to sentencing, may take into
account any matter relevant to sentencing that
has occurred between the time when the
sentencing order was made and when the
Supreme Court hears and determines the
application for review.
(5) Despite subsection (4), if the Supreme Court in
reviewing a sentencing order and determining an
application for review imposes a different
sentence on the offender, the Supreme Court, in
doing so, must not take into account any element
of double jeopardy so as to impose a less severe
sentence than it would otherwise consider
appropriate.
(6) If the Supreme Court, in reviewing a relevant
order and determining an application for review,
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quashes the relevant order in relation to a matter
and remits the matter to the originating Court,
either with or without any direction in law -
(a) the originating Court must hear and
determine the matter in accordance with
the law and any such direction in law;
and
(b) the originating Court, in sentencing the
offender in relation to the matter, may
take into account any matter relevant to
sentencing that has occurred between the
time when the Supreme Court quashed
the relevant order and when the
originating Court determines the remitted
matter; and
(c) despite paragraph (b), the originating
Court in sentencing the offender again
for the relevant offence must not take
into account any element of double
jeopardy so as to impose a less severe
sentence than it would otherwise
consider appropriate.
(7) Before determining an application for review,
the Supreme Court, if it considers that the
reasons given for making the relevant order are
insufficient, may remit the matter to the
originating Court with a direction to provide the
Supreme Court with further and better reasons
within the time specified by the Supreme Court.
(8) If the Supreme Court has required further and
better reasons under subsection (7), the Supreme
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Court is to provide those reasons to the parties to
the application for review as soon as practicable
after receiving them and, in any event, before
determining the application.
(9) Before determining an application for review,
the Supreme Court must make, or cause to be
made, all amendments referred to in
subsection (3)(g) as are necessary for the
purpose of determining the application.
146. Determination of application for review by new
hearing
(1) Despite section 145 and subject to this section, a
person, who has filed or been served with an
application for review, may apply to the
Supreme Court for an order that the matter to
which the application relates be heard by the
Supreme Court as a new hearing.
(2) An application under subsection (1) may be
made on the return day fixed for the application
for review but must be made before the hearing
of the application for review has commenced.
(3) On receipt of an application under
subsection (1), the Supreme Court may -
(a) order that the application for review is to
be heard by the Supreme Court as a new
hearing of the matter which is the subject
of the application for review; or
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(b) refuse to make such an order and proceed
to hear and determine the application for
review under section 145.
(4) An application under subsection (1) for the
matter to be heard by a new hearing may not be
made in relation to an application for review of
an order that -
(a) was made in the absence of the other
party, unless the applicant has first
applied to set that order aside; or
(b) was made on the applicant's plea of
guilty to a charge for an offence.
(5) The Supreme Court may not make an order that
the application for review is to be heard as a new
hearing of the matter which is its subject unless
the Supreme Court is satisfied, having regard to
all the circumstances, that the interests of justice
require the new hearing.
(6) Without limiting the circumstances in respect of
which the Supreme Court may be satisfied,
under subsection (5), that it is in the interests of
justice to require a new hearing, the Supreme
Court may be so satisfied if -
(a) there does not exist, or it is not
practicable to bring into existence, any
sufficient account of that part of the
proceedings to which any ground set out
in the application for review relates; or
(b) in the proceedings that gave rise to the
application for review the applicant was
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not represented by a legal practitioner
and evidence amounting to a substantial
ground of defence, and available at that
time, was not then adduced; or
(c) the parties to the application for review
consent to the making of the order.
(7) If the Supreme Court makes an order that the
application for review is to be heard by the
Supreme Court as a new hearing of the matter
which is its subject, the Supreme Court -
(a) may make such orders as to costs
occasioned by the application for review
and the application for the new hearing
as it considers appropriate; and
(b) may require security for the costs of the
new hearing of the charge for the offence
to be given; and
(c) may extend the operation of any order
made on the application for review or
make any order that, but for the
application for the new hearing, might
have been made on the application for
review under section 142(c) and (d).
(8) If the Supreme Court makes an order that the
application for review is to be heard by the
Supreme Court as a new hearing of the matter
which is its subject -
(a) the Supreme Court has all the powers of
the Court in the proceedings that gave
rise to the application for review; and
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(b) its orders and warrants have effect, and
are enforceable, as if made by that Court.
147. Appeals to Full Court from review
(1) If a party to an application for review is
dissatisfied with a ruling or order of the Supreme
Court on a point of law or on the admission or
rejection of evidence, the party may, subject to
this section, appeal to the Full Court of the
Supreme Court.
(2) Despite subsection (1), the following decisions
of the Supreme Court on the hearing of an
application for review are not subject to appeal
under this section:
(a) a decision as to the sufficiency of the
statement of a ground of review;
(b) a decision as to the amendment of, or the
refusal to amend, the order being
reviewed or a ground of review.
(3) On the hearing of an appeal under this section,
the Full Court of the Supreme Court may -
(a) draw any inference of fact; and
(b) order -
(i) any judgment to be entered that
ought to have been given; or
(ii) a new hearing on the terms as to
costs or otherwise as it considers
just; and
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(c) make any other order it considers just
and proper to ensure the determination
on the merits of the real questions in
controversy between the parties.
(4) An appeal under this section may not succeed
merely on the ground of misdirection or
improper reception or rejection of evidence
unless, in the opinion of the Full Court of the
Supreme Court, substantial wrong or miscarriage
has been occasioned by that ground in the court
below.
148. Bail where appeal to Full Court on review
If an appeal is made to the Full Court of the
Supreme Court under section 147, the Full
Court, on the application of the respondent, may
admit the appellant to bail or refuse to admit the
appellant to bail and remand him or her in
custody to a time and day specified by the
Supreme Court.
149. Proceedings not to be quashed for want of form
A charge sheet, application, appeal, order or
proceeding before the Supreme Court under this
Part may not be quashed or set aside, or
adjudged void or insufficient, for want of form.
150. Costs in relation to proceedings before Supreme
Court
In any proceedings on an application for review,
or an appeal under section 147, before the
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Supreme Court, the Supreme Court may make
any order as to costs as it considers proper.
Division 6 - General provisions
151. Application to Court for interim relief
(1) In any proceedings under this Part, a person who
is aggrieved by an order of the Court may apply
to the Court, within 21 days after the making of
that order, for the relief specified in
subsection (2).
(2) On receipt of an application under
subsection (1), the Court, on notice to the
respondent and on any conditions that the Court
considers appropriate, may refuse to grant the
application or may grant the application and do
one or more of the following:
(a) stay any proceedings on the order in
respect of which the application is made;
(b) suspend the operation of such an order
from its beginning;
(c) admit the applicant to bail.
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PART 13 - COSTS
152. Costs
(1) In this section -
application proceedings has the same
meaning as in section 115(1);
involved person means the prosecutor,
defendant, applicant, appellant or
respondent in proceedings, as the case
requires.
(2) Except as provided by this or any other Act, an
involved person in relation to proceedings under
this Act is not liable for the costs of another
involved person.
(3) If the Court finds an offence proved or makes an
order in favour of a prosecutor, the Court, in its
discretion, may order the defendant pay to the
prosecutor the whole or a specified portion of the
prosecutor's costs of, and incidental to, the
prosecution of the offence.
(4) If the Court dismisses a charge in proceedings
for a breach of duty, the Court, in its discretion,
may order that the person who commenced the
proceedings pay to the defendant the whole or a
specified proportion of the defendant's costs of,
and incidental to, the proceedings.
(5) If proceedings are adjourned, the Court, in its
discretion, may order that the costs of, or
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occasioned by, the adjournment be paid by any
involved person to any other involved person.
(6) In proceedings under Part 12, other than
proceedings relating to a bail order within the
meaning of that Part, the Court, in its discretion,
may order that the whole or a specified portion
of the costs of the proceedings be paid by any
involved person to any other involved person.
(7) If costs are allowed under this section, the costs
are to be assessed -
(a) by the Court; or
(b) if the Court directs, by a district registrar.
(8) If costs are assessed by a district registrar, he or
she must have regard to the same matters to
which the Court would have regard if the Court
were assessing the costs, including the amount
that could have been awarded in respect of
witnesses' expenses under the regulations.
(9) An assessment of costs -
(a) is part of the conviction, order of
dismissal or other order to which it
relates; and
(b) is to comply with any requirements
prescribed by the rules of court.
(10) If costs are allowed in proceedings under this
Act, those costs may be recovered as if they had
been allowed under the Magistrates Court (Civil
Division) Act 1992.
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(11) Nothing in this section prejudices or affects the
operation of the Costs in Criminal Cases Act
1976 but subsections (7) and (9) apply to the
assessment of costs ordered to be paid under that
Act.
153. Amount of costs
(1) In making an order under section 152, the Court
may have regard to any scale of costs, fees or
expenses prescribed in the rules of court.
(2) If the Court has regard to a scale of costs, fees or
expenses in determining the amount of costs in
an order for costs, the Court must specify that
scale in the order.
(3) An assessment of costs may be carried out by a
district registrar and an assessment so carried out
is subject to review by the Court.
154. Procedure for assessing costs
The parties to proceedings in which costs are to
be assessed are to comply with the procedure for
the assessment of costs prescribed by the rules of
court.
155. Application of other Acts providing for costs
Despite the provisions of this Part, if another Act
provides for the awarding of costs (including
expenses) against a defendant who is found
guilty of an offence against that Act, the
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provisions of that Act relating to the awarding
and determination of costs apply.
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PART 14 - MISCELLANEOUS
156. Publication of proceedings
(1) A person must not publish, or cause or allow to
be published -
(a) any information given or produced in
proceedings before the Court; or
(b) an account of proceedings before the
Court; or
(c) any other information relating to
proceedings before the Court -
if the Court, by order, has prohibited publication
of that information or account.
Penalty: Fine not exceeding 500 penalty units
or imprisonment for a term not
exceeding 24 months, or both.
(2) If a provision of any other Act is inconsistent
with subsection (1), subsection (1) prevails
unless that other Act specifically provides
otherwise.
157. Powers in relation to goods in police custody
(1) If a police officer is in possession of property in
relation to which an offence is alleged to have
been committed and he or she is not satisfied as
to who is entitled to the property, or the owner of
the property is not known or cannot be found,
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the police officer may apply to the Court for
directions for the disposal of the property.
(2) On an application under subsection (1), the
Court -
(a) after making such inquiry as it considers
appropriate, may make an order for the
delivery of the property to any person
who appears to be entitled to it; or
(b) if no claim to the property is established,
may make an order that the property be
sold or otherwise disposed of and that the
net proceeds of the sale, if any, be paid
into the Consolidated Fund if no claim to
the proceeds is established within 3
months after the date of the order.
(3) If there is more than one claimant to property in
respect of which an application under
subsection (1) is made, the Court, after hearing
all the claimants appearing before it, may make
an order for the delivery of the property on such
conditions as it considers necessary for securing
the safe custody of the property pending any
action which may be brought for the recovery of
it.
(4) An order under this section does not prejudice
the right of a person to recover, in a court of
competent jurisdiction, the property to which the
order relates from the person to whom it has
been delivered, if proceedings for the recovery
of the property are commenced within 6 months
after the order is made.
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158. Exemption from fees, payment of fees by alternative
person, &c.
(1) Fees may not be received or demanded from -
(a) a public officer; or
(b) an employee or officer of a statutory
authority -
in respect of proceedings under this Act
instituted by him or her in the execution of his or
her duty.
(2) Subsection (1) does not apply to an officer of a
council in respect of proceedings under this Act
instituted by him or her under Part VII of the
Local Government (Highways) Act 1982.
(3) If a person is convicted, or a breach of duty
order is made against him or her, on a charge
made by another person who is exempted from
payment of fees under subsection (1), the Court
may order the person to pay the amount of the
prescribed fees that would otherwise have been
payable by the other person in respect of the
proceedings.
(4) For the purposes of recovery, the amount
payable under subsection (3) is taken to be a sum
of money payable as costs under the Monetary
Penalties Enforcement Act 2005.
159. Waiver, remission or refund of fee
If the Court, the Administrator or a district
registrar is satisfied that paying a fee would
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cause a person undue hardship, the Court,
Administrator or district registrar may do one or
more of the following either unconditionally or
on such conditions as the Court, Administrator
or district registrar considers appropriate:
(a) waive the fee;
(b) reduce the fee;
(c) refund the whole or any part of the fee
already paid;
(d) allow time for the payment of the whole
or any part of the fee.
160. Validity of Court order or document
(1) Subject to subsection (2), an order made or
document issued by the Court under this Act is
taken to be valid -
(a) despite a want of form or a defect or
error in it; and
(b) regardless of whether it has been validly
made or issued.
(2) The Court may order that an order made or
document issued by the Court under this Act is
invalid, or may amend such an order or
document so as to make it valid, from -
(a) the time of its making or issuing; or
(b) the time when the Court so orders or
amends it; or
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(c) some other time.
(3) Subsection (1) does not apply in relation to a
person executing or giving effect to the order or
document if that person knew or had reason to
believe that the order or document -
(a) was wanting in form, or had a defect or
error in it, such as to render it invalid; or
(b) was not validly made or issued.
161. Forms
The Chief Magistrate may approve forms to be
used for the purposes of this Act.
162. Rules of court
(1) Without limiting the matters in respect of which
rules of court may be made under section 15AE
of the Magistrates Court Act 1987 in respect of
the Court, the rules of court may provide for -
(a) the jurisdiction of the Court when
constituted by one or more bench
justices; and
(b) the practice and procedure of the Court;
and
(c) the practice and procedure of a bench
justice when sitting in an out-of-hours
Court session; and
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(d) the form of a charge sheet, a court
attendance notice or another document;
and
(e) the joinder of charges, allegations of
breaches of duty and parties in and to a
charge sheet or application; and
(f) all matters relating to -
(i) objections to irregularities in a
charge sheet or application; and
(ii) the amendment of such
irregularities; and
(g) the issue of an order to attend to a
person; and
(h) the summary offences and breaches of
duty in respect of which a defendant,
who is served with a charge sheet to
answer a charge for such an offence or
breach of duty, is not required to attend
after being given notice that he or she
may file a written plea of guilty or not
guilty to the charge; and
(i) the hearing and determination in the
absence of the defendant of a charge for
a summary offence or an allegation of a
breach of duty where the defendant has
failed to attend in accordance with the
court attendance notice or his or her
conditions of bail; and
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(j) the taking, at a hearing referred to in
paragraph (i), of the charge as admitted,
but with a right of the defendant to have
the conviction or order then made
vacated and the charge reheard, except
where the defendant has filed a plea of
guilty before the hearing; and
(k) all matters relating to procedures for case
management by the Court; and
(l) the manner in which things done in the
course of, or as preliminary or incidental
to, any proceedings of the Court may be
proved in any legal proceedings; and
(m) matters incidental to the adjournment of
proceedings, including the continuation
of bail and remanding in custody; and
(n) the giving of security or an undertaking
under this Act; and
(o) the making of oral applications; and
(p) the assessment of costs allowed under
this Act; and
(q) the entry of summary judgment on
obligations of a civil nature enforceable
as breaches of duty; and
(r) the execution of a conviction or order;
and
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(s) the provision to persons of transcripts or
copies of recordings of proceedings in
any cause or matter under this Act; and
(t) the settlement of disputes as to the
accuracy of transcripts or copies of
recordings of proceedings in any cause or
matter under this Act; and
(u) the oaths to be taken by persons who -
(i) record proceedings in any cause
or matter under this Act; or
(ii) transcribe the recordings of those
proceedings; or
(iii) copy the recordings of those
proceedings; and
(v) the keeping of records of proceedings
before the Court.
(2) Rules of court made for the purposes of this Act
may authorise any matter to be from time to time
determined, approved, applied or regulated by
the Chief Magistrate, another magistrate, the
Administrator, a district registrar, the Secretary
of the Department or another person specified in
the rules of court.
163. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
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(2) Without limiting the generality of subsection (1),
regulations made under this section may -
(a) provide for fees, costs and charges
payable under this Act, or any other Act,
in respect of any matter or proceeding for
which the Court has jurisdiction; and
(b) provide for the payment to witnesses of
expenses and compensation; and
(c) provide for the advances, whether
periodical or otherwise, that may be
made to those witnesses on account of
those expenses; and
(d) provide for the waiver, remission,
reduction or refund of, or exemption
from, any fees, costs and charges payable
under this Act.
(3) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(4) The regulations may -
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units and, in the case of a
continuing offence, a further fine not
exceeding 10 penalty units for each day
during which the offence continues.
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(5) The regulations may authorise any matter to be
from time to time determined, approved, applied
or regulated by the Chief Magistrate, a
magistrate, the Administrator, a district registrar,
the Secretary of the Department or another
person specified in the regulations.
(6) The regulations may -
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act into operation; and
(b) provide for any of those savings or
transitional matters to take effect on the
day on which this Act commences or on
a later day specified in the regulations,
whether the day so specified is before, on
or after the day on which the regulations
are made.
164. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
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165. Legislation repealed
The legislation specified in Schedule 3 is
repealed.
166. Legislation rescinded
The legislation specified in Schedule 4 is
rescinded.
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SCHEDULE 1 - MINOR CRIMES TRIABLE
SUMMARILY
Section 99
1. Sections of the Criminal Code:
Section Crime
Section 234 Stealing
Section 235 Unlawfully dealing with a register [or
record]
Section 236 Unlawfully dealing with a testamentary
instrument [or document of title]
Section 237 Killing an animal with intent to steal
Section 238 Severing with intent to steal
Section 239 Unlawfully branding an animal
Section 244 Burglary if the accompanying intent is to
commit a crime that does not include
violence
Section 245(a)(iii) Aggravated burglary if the accompanying
intent is to commit a crime that does not
include violence
Section 250 Obtaining goods by a false pretence
Section 251 Obtaining execution of a valuable
security by a false pretence
Section 252 Cheating
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Section Crime
Section 252A(1) Dishonestly acquiring a financial
advantage
Section 253 Fraud in respect of payment for work
Section 258(1) Receiving stolen property
Section 259 Corruptly taking a reward for recovery of
stolen property
Section 260(1) Fraudulently dealing with trust property
Section 261(a) Misappropriation as a company officer
Section 261(b) Fraud against a company as an officer [or
member] [or contributory]
Section 264 Fraud as a clerk or servant
Section 265 Falsely accounting as a public officer
Section 266(1) Corruption in relation to business
Section 266(2) Corruptly using a false document
Section 278 Forgery
Section 279 Uttering
Section 280(a) Obtaining property on a forged document
Section 280(b) Obtaining property on a document
obtained by false evidence
Section 280(c) Obtaining property on a forged die
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Section Crime
Section 281 Unlawfully purchasing [or receiving] [or
having in possession] a forged bank note
Section 282 Falsifying [or permitting the falsification
of] a register [or record]
Section 284 Fraudulently using a false copy of a
document relating to a company or
society
Section 293(a) Being an insolvent, failing to make full
discovery of property
Section 293(b) Being an insolvent, failing to deliver up
property
Section 293(c) Being an insolvent, failing to deliver up
documents
Section 293(d) Being an insolvent, concealing property
[or liabilities]
Section 293(e) Being an insolvent, fraudulently
removing property
Section 293(f) Being an insolvent, making fraudulent
statement of affairs
Section 293(g) Being an insolvent, failing to inform
trustee of false claim
Section 293(h) Being an insolvent, preventing
production of documents
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Section Crime
Section 293(i) Being an insolvent, fraudulently dealing
with documents
Section 293(j) Being an insolvent, making a false entry
Section 293(k) Being an insolvent, alleging fictitious
losses [or expenses]
Section 293(l) Being an insolvent, obtaining credit by
fraud
Section 293(m) Being an insolvent, obtaining credit by
false pretence
Section 293(n) Being an insolvent, fraudulently
disposing of property obtained on credit
Section 293(o) Being an insolvent, fraudulently
misleading creditors
Section 294(a) Being an insolvent, obtaining credit
without disclosing insolvency
Section 294(b) Being an insolvent, changing trade name
without disclosing former name
Section 295(1)(a) Being an insolvent, incurring losses by
speculation
Section 295(1)(b) Being an insolvent, incurring losses by
speculation
Section 295(1)(c) Being an insolvent, failing to account for
losses
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Section Crime
Section 296(1) Fraud on a creditor
Section 299 Attempting to commit [crime specified in
this Schedule]
Section 300 Being an accessory after the fact to
[crime specified in this Schedule]
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SCHEDULE 2 - CRIMES TRIABLE SUMMARILY ON
ELECTION
Section 101
PART 1 - SECTIONS OF THE CRIMINAL CODE
REFERRED TO IN SECTION 101(1)(A)
Section Crime
Section 107 Escape from lawful custody
Section 108(1)(a) Aiding escape from lawful custody
Section 108(1)(b) Aiding escape from lawful custody
Section 108(1)(c) Harbouring
Section 119(1) Blasphemy
Section 120 Interfering with an officiating minister
Section 121 Disturbing religious worship
Section 127(1) Indecent assault
Section 137 Indecency
Section 299 Attempting to commit [crime specified in
this Part]
Section 300 Being an accessory after the fact to
[crime specified in this Part]
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PART 2 - SECTIONS OF THE CRIMINAL CODE
REFERRED TO IN SECTION 101(1)(B)
Section Crime
Section 234 Stealing
Section 235 Unlawfully dealing with a register [or
record]
Section 236 Unlawfully dealing with a testamentary
instrument [or document of title]
Section 237 Killing an animal with intent to steal
Section 238 Severing with intent to steal
Section 239 Unlawfully branding an animal
Section 244 Burglary if the accompanying intent is to
commit a crime that does not include
violence
Section 245(a)(iii) Aggravated burglary except where it is
alleged in the charge sheet that, in the
commission of the offence, the defendant
intended to commit a crime other than
stealing
Section 250 Obtaining goods by a false pretence
Section 251 Obtaining execution of a valuable
security by a false pretence
Section 252 Cheating
Section 252A(1) Dishonestly acquiring a financial
advantage
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Section Crime
Section 253 Fraud in respect of payment for work
Section 258(1) Receiving stolen property
Section 259 Corruptly taking a reward for recovery of
stolen property
Section 260(1) Fraudulently dealing with trust property
Section 261(a) Misappropriation as a company officer
Section 261(b) Fraud against a company as an officer [or
member] [or contributory]
Section 264 Fraud as a clerk or servant
Section 265 Falsely accounting as a public officer
Section 266(1) Corruption in relation to business
Section 266(2) Corruptly using a false document
Section 278 Forgery
Section 279 Uttering
Section 280(a) Obtaining property on a forged document
Section 280(b) Obtaining property on a document
obtained by false evidence
Section 280(c) Obtaining property on a forged die
Section 281 Unlawfully purchasing [or receiving] [or
having in possession] a forged bank note
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Section Crime
Section 282 Falsifying [or permitting the falsification
of] a register [or record]
Section 284 Fraudulently using a false copy of a
document relating to a company or
society
Section 293(a) Being an insolvent, failing to make full
discovery of property
Section 293(b) Being an insolvent, failing to deliver up
property
Section 293(c) Being an insolvent, failing to deliver up
documents
Section 293(d) Being an insolvent, concealing property
[or liabilities]
Section 293(e) Being an insolvent, fraudulently
removing property
Section 293(f) Being an insolvent, making fraudulent
statement of affairs
Section 293(g) Being an insolvent, failing to inform
trustee of false claim
Section 293(h) Being an insolvent, preventing
production of documents
Section 293(i) Being an insolvent, fraudulently dealing
with documents
Section 293(j) Being an insolvent, making a false entry
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Section Crime
Section 293(k) Being an insolvent, alleging fictitious
losses [or expenses]
Section 293(l) Being an insolvent, obtaining credit by
fraud
Section 293(m) Being an insolvent, obtaining credit by
false pretence
Section 293(n) Being an insolvent, fraudulently
disposing of property obtained on credit
Section 293(o) Being an insolvent, fraudulently
misleading creditors
Section 294(a) Being an insolvent, obtaining credit
without disclosing insolvency
Section 294(b) Being an insolvent, changing trade name
without disclosing former name
Section 295(1)(a) Being an insolvent, incurring losses by
speculation
Section 295(1)(b) Being an insolvent, incurring losses by
speculation
Section 295(1)(c) Being an insolvent, failing to account for
losses
Section 296(1) Fraud on a creditor
Section 299 Attempting to commit a crime specified
in this Part
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Section Crime
Section 300 Being an accessory after the fact to a
crime specified in this Part
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SCHEDULE 3 - LEGISLATION REPEALED
Section 165
Justices Act 1959 (No. 77 of 1959)
216
Magistrates Court (Criminal and General Division) Act 2019
Act No. of 2019
sch. 4
SCHEDULE 4 - LEGISLATION RESCINDED
Section 166
Justices Rules 2003 (No. 184 of 2003)
Justices (Review) Rules 2004 (No. 117 of 2004)
Justices Amendment (Victim Impact Statement) Rules 2004
(No. 177 of 2004)
Justices Amendment (Family Violence) Rules 2005 (No. 18 of
2005)
Justices Amendment Rules 2005 (No. 38 of 2005)
Justices Amendment Rules (No. 2) 2005 (No. 90 of 2005)
Justices Amendment Rules 2006 (No. 138 of 2006)
Justices Amendment (Notice to Attend) Rules 2007 (No. 139 of
2007)
Justices (Review) Amendment Rules 2008 (No. 114 of 2008)
Justices Amendment Rules 2008 (No. 121 of 2008)
Justices Amendment Rules 2009 (No. 77 of 2009)
Justices Amendment Rules (No. 2) 2009 (No. 150 of 2009)
Justices Amendment Rules 2010 (No. 111 of 2010)
Justices Amendment Rules 2013 (No. 68 of 2013)
Justices Regulations 2013 (No. 105 of 2013)
Justices (Restraint Orders) Rules 2013 (No. 106 of 2013)
Justices Amendment Rules 2014 (No. 45 of 2014)