Western Australia
Justices Act 1902
Reprinted as at 2 October 1999
Reprinted under the Reprints Act 1984 as at 2 October 1999
Western Australia
Justices Act 1902
Part I — Preliminary
1.Short title2
2.Repeal of Acts2
3.Commencement of Act2
4.Interpretation2
4A.Bail Act 1982 to prevail over this Act5
5.General saving of powers of justices5
Part II — Justices
6.Appointment of justices generally6
7.Removal from office6
8.Resignation6
9.Mayors and presidents of local governments to be justices7
10.Prohibition on acting7
12.Judges etc. to be justices8
13.Non resident may be appointed as justice8
14.Acts done by justices outside the State9
15.Jurisdiction of justices9
16.Oath of office9
17.Oath of office need not be taken a second time10
18.Justices, how described10
19.Certain signatures to be prima facie evidence10
Part III — Jurisdiction
20.General jurisdiction11
21.Authentication of acts of justices11
22.Warrants may be executed throughout State11
23.Presumption of jurisdiction12
24.Magisterial districts12
25.Existing magisterial districts to continue under this Act until altered13
25A.Clerks of petty sessions13
26.Powers of one justice13
27.After decision, one justice may issue warrant of execution or commitment14
29.Hearing of complaints14
30.Majority to decide15
31.When 2 justices required, they must be present throughout the case15
32.Jurisdiction of one justice in certain circumstances15
33.Magistrates may in all cases act alone16
34.Duties of clerks of petty sessions may be discharged by magistrate16
35.Justices may act outside jurisdiction17
36.Warrants of commitment and remand by justices of limited jurisdiction17
37.Duty of police officers to obey warrants, etc.17
38.Summons or warrant not avoided by justice dying or ceasing to hold office17
39.Order in lieu of mandamus17
40.Orders in respect of stolen goods18
41.Penalty for insulting or interrupting justices18
Part IV — General procedure
42.Complaint, by whom laid20
43.Only one matter of complaint20
44.Description of persons and property in complaint21
45.Description of offence in complaints21
46.Want of form or variance in warrant, etc.21
47.Amendment21
48.Minute of amendment21
49.Complaint on oath where warrant issued22
50.Where summons issued22
51.Limitation of proceedings22
52.When a justice may issue summons22
53.Summons may be issued by clerk of petty sessions23
54.Contents of summons23
55.Ex parte proceedings23
56.Mode of service24
56A.Power to serve some summonses by post24
57.Proof of service27
57A.Summons, amendment of time following non‑service28
58.Warrant and summons, in what cases issued28
59.Warrant in the first instance for simple offence29
60.Direction of warrant29
61.Contents of warrants29
62.Warrant in force until executed30
65.Court to be open: Publicity30
66.Preliminary hearings not open court31
67.Counsel or solicitor not to be excluded31
68.Conduct of case31
69.Manner of taking evidence: Witness statements for indictable charges32
70.Prosecutor or complainant a competent witness34
71.Mental fitness to stand trial34
72.Proof of negative, etc.34
73.Depositions of witnesses for indictable charges35
73A.Offences in respect of recording of depositions36
74.Summoning witnesses37
75.After summons, warrants may issue37
76.Warrant in the first instance38
77.Witness not answering38
78.Production of documents39
79.Remand of defendant on charge of indictable offence39
80.Verbal remand40
81.Bringing up during remand40
83.Defendant on charge of indictable offence may be remanded to another place40
84.Effect of depositions, etc.41
85.Defendant may have to pay expense41
86.Adjournment of hearing41
86A.Videolink may be used for remands and adjournments42
87.Place of committal or detention42
88.Committal to be made to a gaol43
89.Witness may be discharged on recognizance43
90.Recognizances43
91.Issue of warrant for non‑appearance43
92.Recognizances taken out of court43
93.Forfeited recognizances, how to be enforced44
95.Conveying prisoners to gaol44
96.Regulations, forms, and fees45
Part V — Proceedings in case of indictable offences
Division 1 — Preliminary
97.Application46
97A.Defendant not appearing may be arrested46
Division 2 — General procedure
98.Procedure on first appearance47
99.Procedure if offence may be dealt with summarily47
100.If charge not to be dealt with summarily, defendant to be supplied with statement of facts etc.48
101.Expedited committal if defendant pleads guilty49
101A.If no expedited committal, defendant to be served with statements50
101B.Defendant to elect for or against preliminary hearing51
101C.Proceedings where no preliminary hearing51
101D.Justices may restrict publication of evidence in preliminary hearing52
101E.Liability of body corporate for offences against section 101C or 101D53
101F.Saving53
102.Statement of defendant53
103.Defendant’s statement may be put in evidence at trial55
104.Saving56
105.Evidence for the defence56
106.Discharge of defendant56
107.Committal of defendant57
108.Committal for sentence57
109.Depositions of persons dead or absent57
110.Power to take statements of witnesses dangerously ill58
111.How statements to be taken58
112.Depositions, when admissible, in evidence59
113.Prisoner to be present when statement taken59
114.Prosecution may change statement of facts60
123.Defendant may be granted bail or kept in custody60
124.Recognizance of witnesses, etc.61
125.Signatures of justices; notice to witnesses61
126.Justices may commit refractory witness61
127.On committal, complaint etc. to be sent to Attorney General62
128.Duty of Attorney General62
129.Authority of judge62
130.Recommittal in case of error63
Part VI — Proceedings in case of simple offences and other matters
134.Dismissal or adjournment in absence of complainant64
135.Absence of defendant: Defendant may notify plea of guilty: Affidavit evidence64
136.Defendant may notify plea of not guilty66
136AA.Absence of defendant: court may convict68
136A.Decisions given in default of appearance of any party may be set aside69
136B.Proceedings against children72
137.Appearance of both parties72
138.Proceedings at the hearing on defendant’s confession73
138A.Defendants who will not or do not plead73
139.Where defendant does not admit the case74
140.Non‑appearance of party or parties at adjourned hearing74
141.Practice as to examination etc. of witnesses74
142.Dismissal of complaint75
143.Acquittal on account of unsoundness of mind75
146.Formal record of conviction not necessary, except for special purposes76
147.No certiorari76
148.Party’s right to have copies of records and view exhibits76
150.Sentence77
151.Costs on conviction or order78
152.Costs on dismissal78
153.Costs to be specified in the conviction or order78
154A.Enforcing recognizances78
155.Enforcing the payment of money, other than fines etc.79
159.Imprisonment may be ordered80
Part VIII — Appeals
183.Definitions81
184.Right of appeal81
185.Application for leave82
186.Grounds82
187.Grant or refusal of leave83
188.Ancillary orders and directions83
189.Appeal against refusal of leave, etc.84
190.Application for leave and appeal may be heard together84
191.Notice to other parties85
192.Amendment of grounds of appeal85
193.Judge may make order as to stay of execution85
194.General provisions as to stay of execution86
195.Revival of sentence or order on disposition of appeal87
196.Evidence87
197.Unrepresented person may present case in writing88
198.Presence at appeal of party in custody88
199.Powers of Court88
200.Enforcement90
201.Want of form90
202.Notification of result of appeal to clerk of petty sessions91
203.Notification relating to sentence of imprisonment91
204.Discontinuance of appeal92
205.Dismissal for want of prosecution92
206.Application for re‑instatement of appeal93
206A.Appeal to Full Court93
206B.Retention of exhibits95
206C.Time may be extended or shortened96
206D.Orders for costs96
206E.Enforcement of order for costs97
207.Control of Supreme Court over summary convictions97
208.Amendment98
209.Notice dispensed with98
215.Service by or upon solicitor acting for party98
219.No order for costs to be made against justices or police officers99
Part IX — Protection of justices in the execution of their office
222.Justice sued for act not within his jurisdiction100
223.Warrant by one justice upon an order of another100
224.No action for acts done under order of Supreme Court101
225.No action where proceeding confirmed on appeal101
226.Proceedings may be stayed or set aside101
230.Liability of justices101
232.Damages against a justice where guilt or liability of plaintiff if proved102
Part X — Maintenance and destruction of court records
233.Interpretation103
233A.Application of Part X104
234.Negatives of court records104
235.Destruction of court records generally104
236.Destruction of court records when negatives held104
236A.Preservation orders105
237.Evidentiary provision105
First Schedule
Second Schedule
Third Schedule
Ninth Schedule
Notes
Defined Terms
Reprinted under the Reprints Act 1984 as at 2 October 1999
Western Australia
Justices Act 1902
An Act to consolidate and amend the laws relating to Justices of the Peace and their powers and authorities.
Part I — Preliminary
1.Short title
This Act may be cited as the Justices Act 1902 1.
2.Repeal of Acts
[Omitted under the Reprints Act 1984 s.7(4)(f).]
Commencement of Act
3.Commencement of Act
This Act shall commence and take effect on and from 1 January 1903 1.
Interpretation
4.Interpretation
In the interpretation of this Act, unless the context otherwise requires —
“charge of an indictable offence” means charge of an indictable offence as such and in order to a committal for trial therefor;
“complaint” includes the terms “information”, “information and complaint”, and “charge”, and, unless the contrary appears, means an information and complaint before justices;
“decision” means —
(a)a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial;
[(b)deleted]
(c)the dismissal of a complaint;
(d)any other final determination of a proceeding, including a determination that justices had no jurisdiction to deal with a proceeding; and
(e)a sentence imposed or order made consequent on any such conviction, finding, dismissal or determination,
but does not include any decision relating to bail under the Bail Act 1982;
“defendant” means a person complained against before justices for an indictable offence, simple offence or other matter;
“gaol” includes prison and police gaol;
“hearing” includes the examination of a person charged with an indictable offence;
“indictable offence” means an offence which may be prosecuted before the Supreme Court, or other court having jurisdiction in that behalf, by information in the name of the Attorney General or other authorized officer;
“indictment” means an information for an indictable offence presented to a court having jurisdiction to try the accused person by the Attorney General or other authorized officer;
“jurisdiction” when necessary, means the place in which jurisdiction may be lawfully exercised;
“justices” means —
(a)Justices of the Peace having jurisdiction where the act in question is, or is to be, performed;
(b)a magistrate acting under section 33;
(c)one justice where one justice may exercise the jurisdiction of justices referred to in paragraph (a);
“keeper of a gaol” includes superintendent of a prison;
“magistrate” means a stipendiary magistrate appointed and holding office, whether temporarily or permanently, under the Stipendiary Magistrates Act 1957, the Interpretation Act 1984, or the Public Service Act 1978 2;
“matter” means any act, omission, fact, or event (except an indictable offence not punishable summarily) upon complaint whereof justices may give any decision against or in respect of any person;
“Minister” means the Attorney General or other Minister charged with the supervision of Justices of the Peace;
“oath” includes solemn affirmation or declaration when such affirmation or declaration may by law be made instead of taking an oath, and also includes any promise or other undertaking to tell the truth that may be made under the provisions of any Act relating to giving evidence in courts of justice;
“order” means an order made upon a complaint of any matter (not being a simple offence);
“police officer” means any constable or other member of the police force;
“preliminary hearing” means a hearing to determine whether there is sufficient evidence for a person charged with an indictable offence to be committed to a court of competent jurisdiction for trial or sentence;
“simple offence” means any offence (indictable or not) punishable, on summary conviction, by fine, imprisonment or otherwise;
“summary conviction” or “conviction” means a conviction for a simple offence.
When one word or phrase includes another, the derivatives of the one include those of the other.
4A.Bail Act 1982 to prevail over this Act
Nothing in this Act empowering the detention in, or committal to, custody of any person (however the power may be expressed) shall be read as limiting the operation of section 4 of the Bail Act 1982.
5.General saving of powers of justices
Nothing in this Act shall be construed to diminish or affect any power or authority conferred on Justices of the Peace by any other Act, except so far as the provisions of this Act are inconsistent with the existence or exercise of such power or authority.
Part II — Justices
6.Appointment of justices generally
The Governor may appoint such and so many justices male and female as may from time to time be deemed necessary to keep the peace in the State of Western Australia, or in any magisterial district therein.
Such justices may be so appointed either by a General Commission of the Peace under the seal of the State in the form contained in the Second Schedule or to the like effect, or by a special appointment of the Governor notified in the Government Gazette. In the latter case the justices so appointed shall be deemed to be included in the then subsisting General Commission of the Peace for the State, or for such magisterial district, as the case may be, from the time when they are so appointed.
Any justice may be appointed to keep the peace in more than one magisterial district.
7.Removal from office
A justice may be removed or discharged from his office either by the issue of a new General Commission of the Peace for the State, or for the magisterial district, as the case may be, omitting his name, or by an order of the Governor notified in the Government Gazette, without any writ of supersedeas or other formal writ.
8.Resignation
A justice may at any time resign his office by writing, addressed to the Minister, and upon such resignation being accepted by the Governor, and such acceptance being notified in the Government Gazette, his office shall be vacated.
9.Mayors and presidents of local governments to be justices
(1)A person who is for the time being —
(a)the mayor of a city or town; or
(b)the president of a shire,
within the meaning and for the purposes of the Local Government Act 1995, shall, by virtue of his office and without any further commission or authority than this Act, be a Justice of the Peace for the magisterial district or districts in which the city, town or shire, as the case may be, is situated.
(2)The chief executive officer shall keep a special roll of persons who are for the time being mayors or presidents as mentioned in subsection (1), but he shall not enter therein the name of any such person unless and until he receives a certificate from the chief executive officer of the relevant local government to the effect that the person holds such an office.
(3)When a person’s name is entered in the special roll as mentioned in subsection (2), the chief executive officer shall give notice thereof in writing to that person.
(4)A person who becomes a justice pursuant to subsection (1) shall not exercise any of the powers and authorities of a Justice of the Peace unless and until he receives the notice in writing as mentioned in subsection (3).
(5)In subsections (2) and (3), “chief executive officer” means the chief executive officer of the department of the Public Service principally assisting the Minister in the administration of this Act.
10.Prohibition on acting
The Governor may by order prohibit any person who is a Justice of the Peace pursuant to section 9 from acting as such a justice, and from the time of the notification in the Government Gazette of such an order he shall be and remain incapable of acting as a Justice of the Peace unless and until —
(a)he has been again elected to the office of mayor or president as mentioned in section 9 and that section has again been complied with; or
(b)he has been appointed by the Governor to be a Justice of the Peace.
[11.Repealed by No. 22 of 1968 s.3.]
12.Judges etc. to be justices
A person who is for the time being —
(a)a member of the Executive Council of the State;
(b)a Judge of the Supreme Court;
(c)a Judge of The District Court of Western Australia;
(d)a Judge of the Family Court of Western Australia;
(da)a Judge of the Children’s Court of Western Australia;
(db)a magistrate of the Children’s Court of Western Australia;
(e)a magistrate; or
(f)a Coroner,
or who is for the time being acting in such an office or exercising the powers thereof, shall, by virtue of that office and without any further commission or authority than this Act, be a Justice of the Peace for the State.
13.Non resident may be appointed as justice
Any person may be appointed to be a Justice of the Peace for Western Australia although he is not a resident in the State.
14.Acts done by justices outside the State
Any act done by a justice by virtue of his office out of Western Australia for the purpose of the authentication of the signature of any person to any instrument intended to take effect within Western Australia, and any oath administered by any such justice by virtue of his office out of Western Australia in any case in which an oath may be administered by a Justice of the Peace for Western Australia, shall, unless such act or oath is required by law to be done or administered within Western Australia, be valid and effectual within Western Australia.
15.Jurisdiction of justices
(1)Justices of the Peace shall have and may exercise within and for their jurisdiction the several powers and authorities conferred upon them by this Act, or any other Act, or by a General Commission of the Peace.
(2)No justice shall be disqualified from acting in the discharge of his duties in any matter relating to any local government by reason only of being a ratepayer or interested in common with the public.
16.Oath of office
A justice other than a justice appointed by virtue of section 12 shall not exercise any of the functions of his office until he has taken or made an oath or affirmation of allegiance and the oath or affirmation of office prescribed in the Third Schedule.
Such oaths or affirmations may be taken or made before, and may be administered or received by, a Judge of the High Court of Australia or of the Supreme Court of any State, or a magistrate or any person authorized in that behalf by the Governor.
17.Oath of office need not be taken a second time
When a person has once taken or made such oaths or affirmations on his appointment to the office of Justice of the Peace for the State or for a magisterial district, and afterwards ceases or has ceased to hold such office, it shall not be necessary for him to again take such oaths or affirmations on his again becoming a Justice of the Peace for the State or for the same or any other district.
Description
18.Justices, how described
When a justice is described as a Justice of the Peace for the State of Western Australia, such description shall, unless there is something to denote a different meaning, be taken to mean that he is a Justice of the Peace for the State generally.
19.Certain signatures to be prima facie evidence
(1)The words, “Stipendiary Magistrate”, or the letters “S.M.”, and the words “Justice of the Peace”, or the letters, “J.P.”, following the signature to a magisterial act, are respectively prima facie evidence of the signature being that of a magistrate or justice having jurisdiction in the matter to which the magisterial act relates.
(2)The words, “Clerk of Petty Sessions”, or the letters, “C.P.S.”, following the signature to a document capable of being issued by a clerk of petty sessions under this Act are prima facie evidence that the signature is that of a clerk of petty sessions duly appointed for the magisterial district in which the document was issued.
Part III — Jurisdiction
20.General jurisdiction
(1)Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money —
(a)for any offence made punishable on summary conviction; or
(b)for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be treason, felony, a crime, or a misdemeanour, and no other provision is made for the trial of such person,
the matter may, subject to subsection (2), be heard and determined by 2 or more justices in a summary manner under the provisions of this Act.
(2)Where for any indictable offence offenders may in some circumstances be punished summarily, a person shall not be charged with the offence before justices, and justices shall not deal with the charge or examine the defendant or commit him for trial, if there is a magistrate available or the defendant does not consent, in which case a reference in this Act to any number of justices shall be read and construed, with such modifications as are necessary, as a reference to a magistrate.
21.Authentication of acts of justices
All summonses, warrants, convictions, and orders (not being by law authorized to be made by word of mouth only) shall be under the hands of the justices issuing or making the same.
22.Warrants may be executed throughout State
When a justice issues any warrant or summons purporting on the face thereof to have been issued within the limits of his jurisdiction, such warrant may be executed, and such summons may be served within any part of Western Australia, although beyond the limits of such jurisdiction.
23.Presumption of jurisdiction
Every act done or purporting to have been done by or before a justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until the contrary is shown.
Courts of petty sessions
24.Magisterial districts
(1)The Governor may, subject to the provisions of the The Magisterial Districts Act 1886, appoint magisterial districts for the purposes of courts of petty sessions.
(2)The Governor may, by proclamation, order that courts of petty sessions constituted by a stipendiary magistrate only shall be held at such places as he thinks fit; and may, in like manner, alter the place for the holding of such a court, or order that the holding of any such court be discontinued.
(3)The provisions of subsection (2) shall not be construed as limiting or affecting the jurisdiction of any stipendiary magistrate under the other provisions of this Act or under any other Act.
(4)Where the Governor orders that a court of petty sessions shall be held at any place pursuant to subsection (2) —
(a)the proclamation may provide that there shall be a seal of the court;
(b)the magistrate to whom a court is assigned shall attend to hold the court, at the place appointed by the Governor, at such times as are appointed by the Minister, but so that the court is held in the place once at least in such period of time as the Governor directs by proclamation;
(c)notice of the days on which the court is appointed to be held shall be published in the Government Gazette, and posted in a conspicuous place at the courthouse and also in the office of the clerk;
(d)when by reason of the absence of a magistrate the court cannot be held at the time appointed, the clerk, or, in his absence, a prescribed officer, shall adjourn the court; and
(e)when the holding of the court is discontinued, all proceedings pending in that court shall be transferred to and continued in such other court as the Governor may direct by proclamation and all records of the court the holding of which is discontinued shall be transferred to such other court.
25.Existing magisterial districts to continue under this Act until altered
The districts heretofore appointed to be magisterial districts shall, until altered, be deemed to be districts for the purposes of courts of petty sessions, and shall be deemed to have been appointed under this Act 3.
25A.Clerks of petty sessions
The Minister may appoint a person to the office of clerk of petty sessions for a magisterial district and may appoint such number of clerks of petty sessions for each magisterial district as may, in his opinion, be necessary for the due administration of this Act.
Powers of one justice
26.Powers of one justice
One justice out of sessions may receive a complaint, and grant a summons or warrant thereon, and may issue his summons or warrant to compel the attendance of witnesses, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that the case must be heard and determined by 2 or more justices.
27.After decision, one justice may issue warrant of execution or commitment
(1)After a case has been heard and determined, one justice may, subject to subsection (2), issue any warrant of commitment thereon, and the justice who so acts need not be the justice or one of the justices by whom the case was heard and determined.
(2)Where a warrant of commitment is not issued within the period of 12 months after the final hearing and determination of a case, such a warrant shall not, except for the enforcement of an order for the making of periodical payments, issue without the leave of a magistrate.
[28.Repealed by No. 33 of 1989 s.5.]
Hearing and quorum
29.Hearing of complaints
Subject to this Act, and notwithstanding the provisions of any other Act, every complaint for an indictable offence or a simple offence or other matter may be heard by and before 2 or more justices:
Provided that, with the consent of all parties concerned, any such complaint may be heard by and before one justice, but a memorandum of such consent shall be forthwith made and signed by the justice.
30.Majority to decide
Except as hereinafter provided, when 2 or more justices are present and acting at the hearing of any matter and do not agree, the decision of the majority shall be the decision of the justices, and if they are equally divided in opinion, the case shall be reheard at a time to be appointed by the justices present, or a majority of them, or if they are equally divided, by the senior justice present:
Provided that, upon a complaint for an indictable offence, any 2 or more of the justices may commit the defendant for trial notwithstanding that a majority of the justices are of opinion that the defendant should be discharged. In any such case a memorandum of the dissent of the majority of the justices shall be made upon or attached to the depositions.
31.When 2 justices required, they must be present throughout the case
Where a complaint must be heard and determined, or a conviction or order must be made, by 2 or more justices, the justices making the decision must be present and act together during the whole of the hearing and determination.
32.Jurisdiction of one justice in certain circumstances
Any one justice may exercise the jurisdiction of 2 justices under this or any other Act whenever no other justice usually residing in the district can be found at the time within a distance of 16 kilometres; provided that the justice, on any conviction, certifies, in writing, that no other justice can be found within 16 kilometres.
A certificate under this section shall be conclusive evidence of the fact stated.
Magistrates
33.Magistrates may in all cases act alone
(1)Every magistrate shall have power to do alone whatever might be done by 2 or more justices sitting in petty sessions, and shall have power to do alone any act which by any law is or shall be directed to be done by more than one justice.
(2)Where 2 or more justices, one of whom is a magistrate, are present and acting at the hearing of any matter and do not agree, the decision of the magistrate shall prevail, notwithstanding that a majority of the justices are of a different opinion.
34.Duties of clerks of petty sessions may be discharged by magistrate
In any place appointed for holding courts of petty sessions in which a clerk of petty sessions is not appointed, or from which the clerk of petty sessions is absent, a magistrate may discharge the duties of clerk of petty sessions, and all acts done by a magistrate in pursuance hereof shall be as valid as if done by such clerk, and all notices required to be given to such clerk, and all other matters and things required to be done with or in reference to such clerk, may be given to or done with or in reference to a magistrate, and shall have the like force and effect.
Provided that the justices in petty sessions assembled or the Minister may require that any of such duties, acts, matters, and things as they or he shall think convenient shall be done by, with, or in reference to some police officer, and thereupon such acts, matters, and things if so done shall be as valid as if done by, with, or in reference to a clerk of petty sessions.
Extent of jurisdiction
35.Justices may act outside jurisdiction
No act done by a justice shall be invalid merely by reason of the fact that at the time of doing such act he was outside the limits of his jurisdiction, and it shall not be necessary that any conviction, order, or other proceeding should appear to be made or done within the geographical limits of the jurisdiction of the justice making or doing the same.
36.Warrants of commitment and remand by justices of limited jurisdiction
A warrant of commitment or of remand shall be valid throughout the State, notwithstanding that the gaol or other place to which the defendant is committed or remanded, or any place into or through which he is taken by virtue of the warrant, is outside the limits of the jurisdiction of the justice by whom the warrant is granted.
37.Duty of police officers to obey warrants, etc.
All police officers are hereby required to obey the warrants, orders, and directions of a justice which in that behalf are granted, given, or done, and to do and perform their several offices and duties in respect thereof under the pains and penalties to which a police officer is liable for a neglect of duty.
38.Summons or warrant not avoided by justice dying or ceasing to hold office
A warrant or summons issued by a justice shall not be avoided by reason of such justice dying or ceasing to hold office.
39.Order in lieu of mandamus
When a justice refuses to do any act relating to the duties of his office as such justice, the party requiring such act to be done may apply to the Supreme Court, or a Judge thereof, upon affidavit of the facts, for an order calling upon such justice, and also the party to be affected by such act, to show cause why such act should not be done, and if after due service of such order good cause is not shown against it, the court or Judge may make the same absolute.
A justice, upon being served with an order absolute, shall obey the order and do the act required by it to be done.
40.Orders in respect of stolen goods
When property charged to have been stolen or fraudulently obtained is in the custody of a police officer by virtue of a search warrant, or otherwise in the course of the prosecution of any person for an indictable offence in regard to the obtaining of such property, and the prosecution has terminated, whether by the conviction or discharge of the defendant or otherwise, or the defendant cannot be found, a magistrate may make an order for the delivery of the property to the person who appears to be the rightful owner thereof.
But no order shall be a bar to the right of any person to recover the property by action from the person to whom it is delivered by virtue of the order: Provided that the action shall be brought within 6 months next after the order is made.
Interruption of proceedings
41.Penalty for insulting or interrupting justices
Any person who insults any justices sitting in the exercise of their jurisdiction under this or any other Act, or wilfully interrupts the proceedings of justices so sitting, may be excluded from the court by order of the justices, and may, whether he is so excluded or not, be summarily convicted by the justices on view, and on conviction shall be liable to imprisonment for a term not exceeding 12 months, or to a fine not exceeding $5 000, or to both, or in default of immediate payment of the fine imposed to imprisonment —
(a)until the fine is paid; or
(b)for a term not exceeding 12 months,
whichever may be the shorter period.
No summons need be issued against any such offender, nor need any evidence be taken on oath, but he may be taken into custody then and there by a police officer by order of the justices, and called upon to show cause why he should not be convicted.
Part IV — General procedure
Complaints
42.Complaint, by whom laid
Unless otherwise provided, proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his counsel or solicitor or other person authorized in that behalf.
43.Only one matter of complaint
Every complaint shall be for one matter only, and not for 2 or more matters:
Provided that —
(1)in the case of indictable offences, if the matters of complaint are such that they may be charged in one indictment; and
(2)in other cases, if the matters of complaint are substantially of the same act or omission on the part of the defendant,
such matters may be joined in the same complaint.
Provided also, that when several simple offences are alleged to be constituted of the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such offences may be joined in the same complaint against the same person; but if in any such case it appears to the justices that the defendant is likely to be prejudiced by such joinder, they may require the complainant to elect upon which of the charges he will proceed or may direct that the defendant shall be tried separately on each or any of the charges.
44.Description of persons and property in complaint
Such description of persons or things as would be sufficient in an indictment shall be sufficient in complaints.
45.Description of offence in complaints
The description of any offence in the words of the Act, order, local law, by‑law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.
Variance and amendment
46.Want of form or variance in warrant, etc.
No objection shall be taken or allowed to any complaint, or to any summons or warrant to apprehend a defendant issued upon any complaint, for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing.
47.Amendment
If any such variance appears to the justices to be such that the defendant has been thereby deceived or mislead, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant for his appearance at the time and place to which the hearing is adjourned.
48.Minute of amendment
Every order for the amendment of a variance shall be entered on the proceedings of the justices, and a minute thereof, if required, shall be given to the party against whom it was made.
Complaints, how made
49.Complaint on oath where warrant issued
When it is intended to issue a warrant in the first instance against the party charged, the complaint must be in writing and on oath, which oath may be made either by the complainant or some other person.
50.Where summons issued
When it is intended to issue a summons instead of a warrant in the first instance, the complaint need not be in writing or on oath, but may be verbal merely, and without oath, whether any previous Act under which the complaint is laid requires it to be in writing or not.
Limitation
51.Limitation of proceedings
In any case of a simple offence or other matter, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 12 months from the time when the matter of complaint arose.
Summons
52.When a justice may issue summons
When a complaint is made before a justice that any person is guilty of, or is suspected of having committed or is liable to be dealt with in respect of, any indictable offence, simple offence, or other matter, within the jurisdiction of such justice, then such justice may issue his summons.
53.Summons may be issued by clerk of petty sessions
Any such complaint may be made before the clerk of petty sessions, who may sign and issue his summons, which shall have the same force and effect as if issued by a justice.
54.Contents of summons
A summons issued under this Act shall —
(a)be directed to the defendant;
(b)state shortly the matter of the complaint as a result of which it was so issued;
(c)in the case of a summons for an indictable offence, require the defendant to appear at a time and place appointed by that summons, before such justices as shall then be there, to be dealt with according to law; and
(d)in the case of a summons for a simple offence that is not an indictable offence —
(i)require the defendant, subject to sections 135 and 136, to appear at a time and place appointed by that summons, before such justices as shall then be there, to be dealt with according to law; and
(ii)advise the defendant of the procedures which may be followed under sections 135, 136 and 136AA in the circumstances described in those sections.
55.Ex parte proceedings
Nothing herein contained shall oblige any justice or clerk of petty sessions to issue a summons in any case where the application for an order of justices is by law to be made ex parte.
Service, endorsement, and proof of service
56.Mode of service
Subject to section 56A, a summons must be served upon the person to whom it is directed by delivering a duplicate thereof to him personally, or, if he cannot be found, by leaving it with some person for him at his last known place of abode.
Provided that a magistrate or clerk of petty sessions may, if satisfied that to effect service in the manner above prescribed would involve undue expense, and that the offence is not an indictable offence, and that its nature is such that personal service might reasonably be dispensed with, and that the hearing will not be unduly delayed thereby, allow service by post.
Service by post shall be effected by the clerk of petty sessions despatching the summons through the post as a prepaid registered letter addressed to the person to be served at his place of abode, and the magistrate may accept as proof of service a certificate of the clerk of the due posting of the summons as a prepaid registered letter; provided that the clerk has received through the post an acknowledgment of delivery of such letter purporting to be signed by the person to whom the same was addressed.
56A.Power to serve some summonses by post
(1)Notwithstanding section 56, a summons requiring a person to appear before justices at a stated time and place to answer the complaint for —
(a)an offence under a written law, or under a code or similar provision adopted or enacted by a written law, which is not an indictable offence; or
(b)an offence under a law, or under a code or similar provision adopted or enacted by a law, of the Commonwealth that is a summary offence,
may be served upon the person by posting by prepaid registered post, not less than 14 days before the date stated in the summons for his appearance, a true copy of the summons in an envelope addressed to that person at his last known place of residence or business.
(2)Without prejudice to the operation of subsection (1), in the absence of any circumstances making it appear that the person to whom the summons is directed resides or carries on business elsewhere, where the offence specified in the summons —
(a)arises out of the driving or use of a motor vehicle, the address appearing as the address of that person in the driver’s licence, if any, produced by him at the time of the alleged offence or upon any investigation thereof;
(b)is an offence alleged to have been committed by the person to whom the summons is directed as the owner of a motor vehicle, the address appearing as the address of that person as owner in the vehicle licence for the motor vehicle, for the time being in force;
(c)is an offence of a type set out in subsection (1)(a) or (b), the address appearing as the address of that person, or of any premises of which he is the owner or occupier, in any licence, permit or similar document issued and in force under —
(i)the law under which the offence is alleged to have been committed; or
(ii)a law connected with the law under which the offence is alleged to have been committed,
(whether a law of this State or of the Commonwealth),
shall be deemed and taken to be the last known place of residence or business of the person to whom the summons is directed.
(2a)For the purposes of subsection (2)(c), a law is connected with the law under which the offence is alleged to have been committed if —
(a)it is subsidiary legislation made under that law;
(b)it is the law empowering the making of that law as subsidiary legislation;
(c)it is a code or similar provision adopted or enacted by that law; or
(d)it is the law that adopted or enacted that law as a code or similar provision.
(3)A summons posted to a person to whom it is directed pursuant to this section shall be posted —
(a)by an officer of the court of petty sessions before which the person is required by the summons to appear; or
(b)by the person who made the complaint in respect of which the summons is issued or by a person authorized in writing to post the summons by the first mentioned person.
(4)The justices hearing the complaint to which the summons relates may accept as proof of service a certificate of the officer or any person referred to in subsection (3)(a) or (b) of the due posting by him of the summons in accordance with this section.
(5)Where a summons posted pursuant to this section does not, in fact, come to the notice of the defendant prior to his being convicted of the matter of complaint stated in the summons, he may, within 14 days after his becoming aware of the conviction or within such extension of that period as the justices may allow, serve upon the clerk of petty sessions, at the place where he was so convicted, a notice requiring a rehearing of the complaint to which the summons relates.
(6)The clerk shall, as soon as may be practicable after the receipt of a notice served pursuant to subsection (5), fix a day and time for a rehearing of the complaint and shall, by notice sent by prepaid registered post or served personally (whichever may be the more practicable or convenient), notify the complainant and the defendant of the day and time so fixed.
(7)The justices shall, on the day fixed pursuant to subsection (6), proceed to consider the requirement for a rehearing and shall confirm or set aside the conviction, as they think fit; and, where the conviction is set aside, the justices shall proceed to rehear the complaint or adjourn the rehearing to a day fixed by them, as they think fit.
(8)If justices set aside the conviction, any licence suspension order made under Part 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 in respect of any fine imposed is to be taken as having been cancelled as at the time the licence suspension order was made.
57.Proof of service
(1)The service of any summons where service has not been effected by post may be proved by an endorsement on the summons, signed by the person by whom it was served, setting forth the day, place, and mode of service; or such person may depose to the service on oath at the hearing.
(2)The signature to an endorsement of service shall be prima facie evidence that the endorsement was signed by the person whose signature it purports to be.
(3)Any false statement in an endorsement of service shall render the person making the same liable, on summary conviction, to imprisonment not exceeding 6 months.
57A.Summons, amendment of time following non‑service
(1)If a summons issued under this Act on the making of a complaint is not served before the time stated in the summons for the appearance of the defendant, any justice or clerk of petty sessions, on being satisfied that the complaint was made, may amend the summons by substituting a later time for the appearance of the defendant.
(2)An amendment under subsection (1) must be initialled by the justice or clerk of petty sessions making the amendment.
(3)An amendment of the time mentioned in a summons under subsection (1) does not recommence proceedings.
Warrants in the first instance
58.Warrant and summons, in what cases issued
When complaint is made before a justice —
(1)that a person is suspected of having committed an indictable offence within the limits of the jurisdiction of such justice; or
(2)that a person charged with having committed any such offence elsewhere in Western Australia is suspected of being within such limits; or
(3)that a person charged with having committed an indictable offence on the high seas, or in any creek, harbour, haven, or other place in which the Admiralty of England have, or claim to have, jurisdiction, or on land outside Western Australia, of which offence cognizance may be taken by the courts of Western Australia, is suspected of being within such limits,
the justice may issue his warrant to apprehend such person, and to cause him to be brought before justices in any jurisdiction to answer the complaint, and to be further dealt with according to law.
Provided that the justice, if he thinks fit, instead of issuing his warrant in the first instance to apprehend the person charged, may proceed by summons, and issue a summons against him accordingly.
Notwithstanding the issue of a summons, any justice may issue his warrant at any time before or after the time mentioned in the summons for the appearance of the defendant.
59.Warrant in the first instance for simple offence
When complaint is made before a justice of a simple offence, the justice may, upon oath being made before him substantiating the matter of the complaint, instead of issuing a summons, issue in the first instance his warrant to apprehend the defendant, and to cause him to be brought before justices to answer the complaint and to be further dealt with according to law.
Direction of warrants
60.Direction of warrant
(1)A warrant to apprehend a defendant that he may answer a complaint may be directed either to any police officer or officers by name, or generally to all police officers within the State, without naming them, or to both.
(2)Any police officer may execute any warrant as if it was directed specially to him by name.
Form of warrant
61.Contents of warrants
A warrant shall state shortly the offence or matter of the complaint on which it is founded, and shall name or otherwise describe the person against whom it is issued, and it shall order the police officers to whom it is directed to apprehend the defendant, and to bring him before justices in any jurisdiction to answer the complaint and to be further dealt with according to law.
62.Warrant in force until executed
A warrant need not be returnable at any particular time, but may remain in force until executed, and may be executed by apprehending the defendant at any place within the State.
[Heading repealed by No. 49 of 1997 s.5.]
[63.Repealed by No. 49 of 1997 s.5.]
[64.Repealed by No. 87 of 1982 s.7.]
[Heading repealed by No. 14 of 1992 s.19.]
65.Court to be open: Publicity
(1)Unless expressly provided otherwise, the court‑room or place of hearing where justices sit to hear and determine any complaint is an open and public court to which all persons may have access so far as is practicable.
(2)If satisfied that it is necessary for the proper administration of justice to do so, justices may —
(a)order any or all persons or any class of persons to be excluded from the court‑room or place of hearing during the whole or any part of the trial or other criminal proceeding;
(b)make an order prohibiting the publication outside the court‑room or place of hearing of the whole or any part of the evidence or proceedings;
(c)make an order prohibiting the publication outside the court‑room or place of hearing of the whole or any part of the evidence or proceedings except in accordance with directions by the justices.
(3)On an application by the prosecution or an accused person justices may order any person who may be called as a witness in the trial or other criminal proceeding to leave the court‑room or place of hearing and to remain outside and beyond the hearing of the court until called to give evidence.
(4)Counsel or a solicitor engaged in the trial or other criminal proceeding shall not be excluded from the court‑room or place of hearing under this section.
(5)A person who contravenes or fails to comply with an order made under this section commits an offence punishable —
(a)by the Supreme Court as for contempt; or
(b)after summary conviction, by imprisonment for 12 months or a fine of $10 000.
(6)Only the Attorney General or a person on his behalf may take proceedings for a contravention of or a failure to comply with an order made under this section.
66.Preliminary hearings not open court
The room or place in which justices take the examinations and statements of persons charged with indictable offences for the purpose of committal for trial and the depositions of the witnesses in that behalf shall not be deemed an open court, and the justices may order that no person shall be in such room or place without their permission; but they shall not make such order unless it appears to them that the ends of justice require them so to do.
67.Counsel or solicitor not to be excluded
The power to exclude any person shall not be exercised for the purpose of excluding any counsel or solicitor engaged in the case.
Counsel and solicitor
68.Conduct of case
Every complainant shall be at liberty to conduct his case and to have the witnesses examined and cross‑examined by his counsel or solicitor; and every defendant shall be admitted to make his full answer and defence to the charge, and to have the witnesses examined and cross‑examined by his counsel or solicitor.
Evidence
69.Manner of taking evidence: Witness statements for indictable charges
(1)Every witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts in force for the time being relating to giving evidence in courts of justice.
(2)Notwithstanding any other provision in any Act, where a person is charged with an indictable offence and the charge is not dealt with summarily, a written statement of any person —
(a)may, on a preliminary hearing, be tendered to the justices in evidence and is admissible as evidence before them to the like extent as oral evidence to the like effect by that person; or
(b)may, where there is no preliminary hearing, be tendered to the justices to be used in evidence for the purposes of the trial or sentencing of the defendant,
if the conditions mentioned in subsection (3) are complied with.
(2a)On a preliminary hearing that is within the definition of “Schedule 7 proceeding” in section 106A of the Evidence Act 1906, this section has effect subject to the following —
(a)subsection (3)(d) does not apply to a statement by the affected child (as defined in section 106A referred to);
(b)the affected child is not to be called as a witness unless the justices are satisfied that there are special circumstances that justify the complainant being so called; and
(c)references to a written statement are to be read as including references to a statement recorded electronically.
(3)The conditions referred to in subsection (2) are as follows —
(a)the statement purports to be signed by the person who made it;
(b)the statement contains a declaration by the person who made it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be guilty of a crime if he has wilfully included in the statement anything which he knew to be false or did not believe to be true;
(c)before the statement is so tendered, a copy of the statement has been served, by or on behalf of the party proposing to tender it, on each other party to the proceedings and, where the party proposing to tender it is the prosecutor, it has been served and lodged in accordance with section 101A(e);
(d)before the statement is so tendered, no other party to the proceedings objects to its tender;
(e)where the statement is made by a person under the age of 18 years, it gives his age;
(f)where the statement is made by a person who cannot read, it is read aloud to him before he signs it, and it is accompanied by a declaration of the person who read the statement to the effect that it was so read; and
(g)where the statement refers to any other document or exhibit, the copy of the statement served, under paragraph (c), is accompanied by a copy or description of the other document or exhibit.
(4)A written statement is deemed to be tendered in evidence under this section at the time that the statement is tendered to the justices.
(5)Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section is deemed to have been produced before the justices and identified by the maker of the statement.
(6)A written statement tendered in evidence under this section is admissible as evidence before any court of competent jurisdiction, to the like extent that a deposition of the person who made the statement would be so admissible.
(7)Any person who, in a written statement tendered in evidence under this section, has wilfully included anything which he knew to be false or did not believe to be true is guilty of a crime and is liable to imprisonment for 7 years.
70.Prosecutor or complainant a competent witness
Upon any complaint of an indictable offence, or simple offence or other matter, the prosecutor or complainant shall be a competent witness to support such complaint.
71.Mental fitness to stand trial
If a question about a defendant’s mental fitness to stand trial arises before justices on the hearing of a complaint for an offence, it is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996.
72.Proof of negative, etc.
If the complaint in any case of a simple offence or other matter negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence.
73.Depositions of witnesses for indictable charges
(1)When a person is charged with an indictable offence, the depositions of the witnesses shall be —
(a)reduced to writing; or
(b)recorded by means of sound‑recording apparatus in the manner prescribed 4.
(1a)A deposition reduced to writing under subsection (1)(a) shall, if the charge is not dealt with summarily, be read over to and signed by the witness who has given the evidence and shall be signed also by the justices by or before whom it is taken.
(1b)Where a recording made under subsection (1)(b) is transcribed, the person by whom the transcript is prepared or, if the transcript is checked by a person other than the person by whom the transcript is prepared, the person by whom the transcript is checked shall certify that the transcript is a correct transcript of that recording.
(1c)The Governor may make regulations —
(a)prescribing the procedures to be adopted in relation to the taking and recording of depositions under this section and the reproduction and transmission of such depositions;
(b)with respect to the appointment of persons to record or transcribe depositions, or to check transcripts, for the purposes of this section;
(c)prescribing the functions and duties of persons appointed to record or transcribe depositions, or to check transcripts;
(d)requiring a person appointed to record or transcribe depositions, or to check transcripts, to take an oath that he will faithfully discharge his functions and duties and prescribing the form of such an oath;
(e)requiring a person appointed to record or transcribe depositions, or to check transcripts, to make a statutory declaration in any circumstances prescribed in the regulations;
(f)with respect to the preparation and checking of transcripts of recorded depositions and the form and manner of certification of such transcripts;
(g)with respect to the custody and destruction of recordings and transcripts made under this section and the period for which, or the circumstances in which, they are to be retained;
(h)with respect to such other matters necessary or expedient to be prescribed for the purpose of ensuring that a transcript of a recording is correct.
(2)Where, on a preliminary hearing, a written statement is tendered in evidence under section 69, the justices —
(a)shall, if any party to the proceeding so requests, read aloud, or cause to be read aloud before them, such part of the statement as is admissible in evidence by virtue of subsection (2)(a) of that section;
(b)shall sign the statement; and
(c)may, on their own motion or on the application of any party to the proceedings, require the person who made the statement to attend before them and give evidence if they are satisfied that the presence of that person as a witness is necessary in the interests of justice.
73A.Offences in respect of recording of depositions
Any person who —
(a)personates a person appointed under this Act to record or transcribe depositions, or to check transcripts, on an occasion when the latter is required to do any act or attend in any place by virtue of his appointment;
(b)falsely represents himself to be a person appointed under this Act to record or transcribe depositions, or to check transcripts, and assumes to do any act, or attend in any place for the purposes of doing any act, by virtue of his pretended appointment;
(c)falsifies or, except in accordance with the prescribed procedures, interferes with, alters, adds to, or causes any omission in a transcript of any recording made under section 73;
(d)having the duty of transcribing a recording made under section 73 or checking a transcript of that recording, provides a certificate in respect of any transcript so made, which certificate that person knows to be false in a material particular,
commits an offence.
Penalty: $5 000 or imprisonment for 2 years.
Witnesses in general
74.Summoning witnesses
(1)Any justice or clerk of petty sessions may issue his summons to any person requiring him to be and appear as a witness at a time and place mentioned in the summons before such justices as shall then be there to testify what he knows concerning the matter of the complaint.
(2)A summons to a witness must be served, and proof of service may be given in the same manner as hereinbefore prescribed in the case of a summons to a defendant except that the provisions relating to service by post shall not apply to a summons to a witness.
75.After summons, warrants may issue
(1)If a person summoned as a witness neglects or refuses to appear at the time and place appointed by the summons, and no just excuse is offered for such neglect or refusal, then (after proof that the summons was duly served upon such person, and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance) the justices before whom such person was summoned to appear may then and there impose upon him in his absence a penalty not exceeding $40, which may be recovered in the same manner as penalties imposed upon a summary conviction as hereinafter provided.
(2)The justices may also issue their warrant to bring and have such person at a time and place to be therein mentioned before such justices as shall then be there to testify as aforesaid.
(3)No payment or tender of expenses shall be necessary in the case of indictable offences.
76.Warrant in the first instance
If the justice is satisfied by evidence upon oath that it is probable that a person whose evidence is desired will not attend to give evidence without being compelled so to do, then, instead of issuing a summons he may issue his warrant in the first instance.
77.Witness not answering
If on the appearance of a person before justices, either voluntarily or in obedience to a summons, or upon being brought before them by virtue of a warrant, such person refuses to be examined upon oath concerning the matter, or refuses to take an oath, or having taken an oath refuses to answer such questions concerning the matter as are then put to him, without offering any just excuse for such refusal, any justice then present and having there jurisdiction may by warrant commit the person so refusing to gaol, there to remain and be imprisoned for any time not exceeding 7 days, unless in the meantime he consents to be examined and to answer concerning the matter.
78.Production of documents
When justices have authority to summon any person as a witness, they shall have the like authority to require and compel him to bring and produce, for the purpose of evidence, all documents and writings in his possession or power, and to proceed against him in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined.
Provided that no person shall be bound to produce any document or writing not specified or otherwise sufficiently described in the summons, or which he would not be bound to produce upon a subpoena duces tecum in the Supreme Court.
Remand and adjournment
79.Remand of defendant on charge of indictable offence
(1)In any case of a charge of an indictable offence, if from the absence of witnesses, or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the justices before whom the defendant appears or is brought may adjourn such hearing to the same or some other place, and may, by their warrant, from time to time remand the defendant to some gaol, or other place of security, for such period, subject to subsection (3), as they may in their discretion deem reasonable to be there kept, and to be brought before the same or such other justices as shall be acting at the time or place appointed for continuing the hearing.
(2)The powers given by this and the next succeeding section may be exercised by one justice if only one is present.
(3)The justices may remand a defendant under subsection (1) —
(a)in the case of a defendant who is undergoing a term of imprisonment at the time of the remand, for a period not exceeding 8 clear days or, with the consent of the defendant, to a day not later than the day on which his term of imprisonment will expire; or
(b)in any other case, for a period not exceeding 8 clear days or such longer period not exceeding 30 clear days as may be consented to by the defendant.
80.Verbal remand
If the remand is for a time not exceeding 3 clear days, the justices may verbally order the person in whose custody the defendant then is, or any other person named by the justices in that behalf, to keep the defendant in his custody, and to bring him before the same or such other justices as shall be acting at the time and place appointed for continuing the hearing.
81.Bringing up during remand
Any justices may order the defendant to be brought before them at any time before the expiration of the time for which he was so remanded, and the officer in whose custody he then is shall duly obey such order.
[82.Repealed by No. 87 of 1982 s.7.]
83.Defendant on charge of indictable offence may be remanded to another place
In any case of a charge of an indictable offence, the justices before whom the defendant appears may, if they think fit, bind over such witnesses as they have examined by recognizance to give evidence, and may, by warrant, order the defendant to be taken before justices having jurisdiction in or near the place where the offence is alleged to have been committed, or in any other place in Western Australia where any of the witnesses to be examined are, and shall at the same time deliver the complaint, and also the depositions and recognizances so taken by them, to the officer who has the execution of the last‑mentioned warrant, to be by him delivered to the justices before whom he shall take the defendant in obedience to such warrant.
84.Effect of depositions, etc.
Such depositions and recognizances shall be deemed to be taken in the case, and shall be treated as if they had been taken by or before the last‑mentioned justices, and shall, together with such depositions and recognizances as such last‑mentioned justices shall take in the matter of the charge against the defendant, be transmitted to the proper officer in the manner and at the time hereinafter mentioned, if the defendant is committed for trial upon the charge.
85.Defendant may have to pay expense
If it appears to the justices by whom any defendant is committed for trial or for sentence that he has money sufficient to pay the whole or some part of the expenses of conveying him from the place where he was first brought before justices to the place where he was committed, such justices may order that, in the event of his conviction, such money or a sufficient part thereof shall be applied to such purpose.
86.Adjournment of hearing
Subject to section 136, in any case of a charge of a simple offence or other matter, the justices present, or, if only one justice is present, such one justice, may adjourn the hearing to a certain time and place to be then appointed and stated, in the presence and hearing of the party or parties, or their respective counsel or solicitors then present, and in the meantime may commit the defendant to appear at the time and place appointed for continuing the hearing.
86A.Videolink may be used for remands and adjournments
(1)If —
(a)the defendant has appeared personally before justices on a charge;
(b)the defendant is in custody, whether in relation to the charge or not;
(c)a videolink or other device exists whereby, at the same time, justices in one place can see and hear the defendant in another place and vice versa; and
(d)an order has not been made under subsection (2),
the person in whose custody the defendant is shall, unless an order is made under subsection (2), notwithstanding the warrant commanding that the defendant be brought before the justices, bring the defendant before the videolink or other device, and the justices may, in relation to the charge, exercise the powers in sections 79, 80 and 86 and comply with the Bail Act 1982 as if the defendant were personally present before them.
(2)The justices may, on their own initiative or on the application of a party to the proceeding, at any time, if satisfied it is necessary for the proper administration of justice to do so, order that a defendant be brought personally before them.
Committal and recognizance
87.Place of committal or detention
When justices commit a defendant by way of remand or upon an adjournment, or at any time before the decision, they may commit to the gaol, or any other place of security in the place for which they are then acting, or to such other safe custody as they think fit.
88.Committal to be made to a gaol
When justices commit a witness or person sought to be made a witness, and when they commit a defendant after the decision, they must commit to a gaol.
89.Witness may be discharged on recognizance
A witness or person sought to be made a witness may be discharged upon recognizance.
90.Recognizances
When justices are authorized to discharge a witness or other person upon recognizance they may order his discharge upon his entering into a recognizance, with or without a surety or sureties at their discretion, conditioned for his appearance at the time and place to which the hearing is adjourned, or which is named in the recognizance.
91.Issue of warrant for non‑appearance
If a witness or other person, does not appear at the time and place mentioned in the recognizance, then the justices who are there present may adjourn the hearing, and may issue a warrant for his apprehension as hereinbefore provided.
Recognizances generally
92.Recognizances taken out of court
When justices have fixed, as regards any recognizance, the amount in which the principal and sureties (if any) are to be bound, the recognizance, notwithstanding anything in this or any other Act, need not be entered into before the same justices, but may be entered into by the parties before the same or any other justice or justices or before any clerk of petty sessions, or before an inspector or sub‑inspector of police or other police officer who is of equal or superior rank, or who is in charge of a police station, or, where any one of the parties is in gaol, before the keeper of such gaol; and thereupon all the consequences of law shall ensue, and the provisions of this Act with respect to recognizances taken before justices shall apply as if the recognizances had been entered into before such justices as heretofore by law required.
93.Forfeited recognizances, how to be enforced
When the conditions, or any of them, in any recognizance that is referred to in section 154A(1) are not complied with, any justice may certify upon the back of the recognizance in what respect the conditions have not been observed, and transmit the same to the proper officer, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of the recognizance having been forfeited and such justice shall on demand by or on behalf of any law officer (as defined by the Crown Suits Act 1898 5), certify by writing under his hand, in the form contained in the Fourth Schedule to the said Act or to the like effect, that such forfeiture has taken place.
[94, 94A. Repealed by No. 87 of 1982 s.12.]
Execution of warrants of commitment
95.Conveying prisoners to gaol
The person to whom a warrant of commitment is directed shall convey the person therein named or described to the gaol or other place mentioned in the warrant, and there deliver him, together with the warrant, to the keeper of such gaol or place, who shall thereupon give the person delivering the prisoner into his custody a receipt for such prisoner, setting forth the state and condition in which such prisoner was when he was delivered into the custody of such keeper.
Regulations and forms
96.Regulations, forms, and fees
(1)The Governor may make regulations for carrying out this Act, including prescribing the forms to be used in and the fees to be taken in courts of petty sessions and appeals and providing for procedural matters relating thereto.
[(2) and (3) repealed]
(4)Regulations made under subsection (1) may provide for the waiver, reduction, refund or deferral of payment of the prescribed fees.
(5)Where provision for the reduction, waiver, refund or deferral of payment of a prescribed fee is made in the regulations, such reduction, waiver, refund or deferral of payment may be expressed to apply or be applicable either generally or specifically —
(a)when an event happens or ceases to happen;
(b)in respect of certain persons or classes of person; or
(c)in respect of a combination of such events and persons,
and may be expressed to apply or to be applicable subject to such conditions as may be specified in the regulations or in the discretion of any person specified in the regulations.
Part V — Proceedings in case of indictable offences
Division 1 — Preliminary
97.Application
(1)This Part applies where a defendant is charged before justices with an indictable offence (“the charge”).
[(2)repealed]
97A.Defendant not appearing may be arrested
(1)If a defendant —
(a)is served with a summons; and
(b)does not appear before justices at the time and place stated in the summons,
the justices, if satisfied the summons was served a reasonable time before that time, may issue —
(c)another summons, and if that is not obeyed, a warrant to apprehend the defendant; or
(d)a warrant to apprehend the defendant.
(2)A summons issued under subsection (1)(c) may be served by post on the defendant.
Division 2 — General procedure
98.Procedure on first appearance
(1)When the defendant appears for the first time before the justices on the charge, the justices shall —
(a)read the charge to the defendant; and
(b)if necessary, explain to the defendant the meaning of the charge.
(2)If the charge is one referred to in section 426(2a) or (3) of The Criminal Code or in section 23D(2) of the Firearms Act 1973, the justices shall then give the prosecutor the opportunity to request them to deal with the charge summarily.
(3)If the charge is not one referred to in section 426(2a) or (3) of The Criminal Code or in section 23D(2) of the Firearms Act 1973 or if it is but the prosecutor does not request the justices to deal with it summarily, the justices shall then —
(a)tell the defendant he or she is not required to plead to the charge; and
(b)cause the defendant to be given a notice in the prescribed form explaining the procedures in this Part.
99.Procedure if offence may be dealt with summarily
(1)If the charge may be dealt with summarily and the justices, having regard to such matters as by law they are required to, consider that the charge can be adequately dealt with summarily, the justices shall —
(a)tell the defendant that he or she —
(i)has the right to have the charge dealt with by a Judge of the Supreme Court or of the District Court (as the case requires) and a jury; or
(ii)may elect to have the charge dealt with summarily by a court of petty sessions;
and
(b)ask the defendant to elect whether or not to have the charge dealt with by a court of petty sessions.
(2)If the defendant elects to have the charge dealt with summarily by a court of petty sessions, the justices shall deal with the charge according to law.
100.If charge not to be dealt with summarily, defendant to be supplied with statement of facts etc.
(1)If —
(a)the charge cannot be dealt with summarily;
(b)the justices decide the charge can not be adequately dealt with summarily; or
(c)under section 99 the defendant —
(i)elects not to have the charge dealt with summarily by a court of petty sessions; or
(ii)does not make an election,
the justices shall adjourn the complaint and the prosecution shall, unless an order under subsection (2) is made, as soon as is reasonably practicable, file with the clerk of petty sessions and serve on the defendant —
(d)a statement of the material facts relevant to the charge;
(e)a copy of —
(i)any statement signed by the defendant;
(ii)any record of interview with the defendant (signed or unsigned by the defendant); or
(iii)the substance of anything said by the defendant to a member of the Police Force that is material to the charge,
in the possession of the prosecution; and
(f)notice of any tape or videotape recording of conversations between the defendant and a person in authority in the possession of the prosecution.
(2)If, on the application of the prosecution, the justices are satisfied that at that stage of the proceedings —
(a)the prosecution is unable to comply with subsection (1); or
(b)it is not practicable for the prosecution to prepare a statement of the material facts,
the justices may order that compliance with subsection (1) by the prosecution be dispensed with.
[Heading repealed by No. 53 of 1992 s.25.]
101.Expedited committal if defendant pleads guilty
(1)Following the service by the prosecution of the material referred to in section 100(1), the justices shall —
(a)tell the defendant he or she is not required to plead to the charge; and
(b)give the defendant the opportunity to plead to the charge.
(2)If the defendant pleads guilty to the charge, the justices shall, without convicting the defendant, commit the defendant to a court of competent jurisdiction for sentence.
(3)If the defendant is committed for sentence under subsection (2), the justices shall, as soon as possible after the committal, transmit to the Attorney General, or some other person duly appointed to present indictments, the complaint and the material filed by the prosecution under section 100(1).
101A.If no expedited committal, defendant to be served with statements
If —
(a)an order is made under section 100(2);
(b)under section 101 the defendant —
(i)pleads not guilty to the charge;
(ii)does not plead; or
(iii)enters any other plea other than a plea of guilty;
or
(c)the complaint is remitted under section 618(3) of The Criminal Code,
the justices shall —
(d)address the defendant in the form of words prescribed in the Ninth Schedule, or in words to the like effect;
(e)direct the prosecutor to serve or cause to be served on the defendant, and filed with the clerk of petty sessions, at least 4 days before the hearing is to be resumed, a copy of the written statement of each person which the prosecution proposes to tender in evidence or to be used in evidence under section 69(2);
(f)give or cause to be given to the defendant a copy of the Ninth Schedule suitably adapted to the circumstances of the charge against the defendant; and
(g)adjourn the proceedings.
101B.Defendant to elect for or against preliminary hearing
(1)On the resumption of the proceedings adjourned under section 101A(g) and after the depositions of the witnesses, if any, called by the prosecution have been taken in accordance with section 73(1), the defendant shall be required by the justices to elect whether or not to have a preliminary hearing.
(2)A defendant is deemed to have elected to have a preliminary hearing if he —
(a)stands mute or does not answer directly to the question putting him to his election; or
(b)objects to any statement being tendered under section 69.
(3)If the defendant, or if, where there is more than one defendant, one of the defendants elects to have a preliminary hearing there shall be a preliminary hearing but otherwise there shall not be a preliminary hearing.
101C.Proceedings where no preliminary hearing
Where the defendant elects not to have a preliminary hearing —
(a)a defendant —
(i)shall not cross‑examine any witnesses before the justices;
(ii)shall not give or tender before the justices any evidence other than written statements tendered under section 69; and
(iii)shall not submit to the justices that there is insufficient evidence before them to put him on his trial for the offence;
(b)the justices —
(i)shall require the defendant to plead to the charge;
(ii)shall require that all written statements that are, under section 69, to be tendered to them to be used in evidence shall be so tendered and shall receive and sign those statements, which shall not be read in court; and
(iii)shall, without any consideration of the contents of the depositions, if any, or the written statements, forthwith commit the defendant for trial or sentence, as the case requires;
and
(c)a person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public the contents, or any part thereof, of the depositions, if any, or the written statements, or attempts to do so, before those contents or part thereof, as the case may be, are, at the trial or sentencing of the defendant, admitted as evidence, or stated aloud under section 617A of The Criminal Code, commits a contempt of the Supreme Court and is punishable accordingly by that court.
101D.Justices may restrict publication of evidence in preliminary hearing
Where there is a preliminary hearing the justices may at any time state that in their opinion in the interests of justice it is undesirable that any report of or relating to the evidence or any of the evidence given or tendered at the proceedings before them should be published and thereafter a person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public such report, or any part thereof, or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that court.
101E.Liability of body corporate for offences against section 101C or 101D
Without affecting any other liability of any person under section 101C or 101D or otherwise, a company or other body corporate is liable to any punishment or penalty for any offence under either of those sections as if it were a private person so far as the punishment or penalty is enforceable against a company or body corporate; and if any director, manager, secretary, or officer of a company or any member of the managing body of a body corporate commits, or knowingly authorizes or permits, an offence under either of those sections he is liable to the punishment or penalty for the offence.
101F.Saving
Nothing in section 101C or 101D applies to the publication of information with regard to any proceedings under either of those sections for contempt of court or for punishment or penalty.
102.Statement of defendant
(1)On a preliminary hearing, the justices —
(a)shall examine all the witnesses called by the prosecution or called under section 73(2)(c) in respect of written statements tendered in evidence by the prosecution under section 69; and
(b)shall read aloud, or cause to be read aloud, the parts of written statements tendered in evidence by the prosecution that are required to be so read under section 73(2)(a),
and thereupon the justices or one of the justices shall say to the defendant these words or words to the like effect —
“
Having been informed of the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing [or “will be recorded” as the case may be], and may be given in evidence against you upon your trial.
”.
(2)Whatever the defendant says in answer to the question required under subsection (1) shall be —
(a)reduced to writing; or
(b)recorded by means of sound‑recording apparatus in the manner prescribed 4.
(3)A statement of the defendant reduced to writing under subsection (2)(a) shall be —
(a)read over to the defendant;
(b)signed by the justices before whom the statement was given;
(c)signed by the defendant, if he so desires;
(d)kept with the depositions of the witnesses; and
(e)transmitted with the depositions of the witnesses to the proper officer as provided by this Act.
(4)Where a recording made under subsection (2)(b) is transcribed, the person by whom the transcript is prepared or, if the transcript is checked by a person other than the person by whom the transcript is prepared, the person by whom the transcript is checked shall certify that the transcript is a correct transcript of the recording.
(5)Sections 73A and regulations made under section 73(1c) apply mutatis mutandis to and in relation to recordings made under this section.
103.Defendant’s statement may be put in evidence at trial
(1)Upon the trial of a defendant, any statement made by him when he is required to plead to the charge under section 101C(b)(i) or when he is asked the question required under section 102(1), if —
(a)the statement was reduced to writing and purports to be signed by the justice or justices by or before whom it purports to have been taken; or
(b)the statement was recorded under section 102(2)(b) and a transcript of the recording has been made and certified in the prescribed manner to be a correct transcription of the recording,
may, if necessary and subject to subsection (2), be given in evidence against the defendant without further proof thereof.
(2)A statement referred to in —
(a)subsection (1)(a) shall not be given in evidence against the defendant without further proof thereof if it is proved that it was not in fact signed by the justice or justices by whom it purports to be signed;
(b)subsection (1)(b) shall not be given in evidence against the defendant without further proof thereof if it is proved that the transcript to be used is not a correct transcription of the recording.
(3)A person shall not allege that a statement intended to be given in evidence against a defendant is an incorrect transcription of a recording unless, not less than 7 days before the commencement of the trial of the defendant, that person has given the prosecutor notice in the prescribed form of his intention to raise that allegation.
104.Saving
Nothing herein contained shall prevent the prosecutor in any case from giving, in evidence, any admission or confession or other statement of the defendant made at any time, which by law would be admissible as evidence against such person.
105.Evidence for the defence
(1)After addressing the defendant as required by section 102 and after taking the statement, if any, of the defendant, the justices or one of the justices shall ask the defendant whether he desires to give evidence or call any witnesses, or to tender any written statements under section 69.
(2)If the defendant gives evidence or calls any witnesses or any witnesses are called under section 73(2)(c) in respect of written statements tendered in evidence by the defendant under section 69, the justices shall, in the presence of the defendant, take the statement on oath, both examination and cross‑examination, of the defendant or of the witnesses so called who know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the defendant.
(3)If the defendant tenders any written statements in evidence under section 69 the justices shall read aloud, or cause to be read aloud, the parts of those written statements that are required to be so read under section 73(2)(a).
106.Discharge of defendant
When, on a preliminary hearing, all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry.
107.Committal of defendant
If the defendant elects not to have a preliminary hearing and pleads not guilty or if, on a preliminary hearing in the opinion of the justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence, then they shall order him to be committed to take his trial for the offence before some court of competent jurisdiction.
108.Committal for sentence
If on a preliminary hearing the defendant pleads guilty to the charge in answer to the question asked under section 102(1), the justices shall, without convicting the defendant, commit the defendant to a court of competent jurisdiction for sentence.
109.Depositions of persons dead or absent
(1)When a person has been charged before justices with an indictable offence, as such, and has been committed for trial, then if, upon the subsequent trial of the person so charged, it is proved that any person whose deposition has been taken in accordance with section 73 at the hearing of such charge is dead, or out of the State, or so ill as not to be able to travel and if —
(a)the deposition was reduced to writing under section 73(1)(a) and purports to be signed by the justices by or before whom it purports to have been taken; or
(b)the deposition was recorded under section 73(1)(b) and a transcript of the recording has been made and certified in the prescribed manner to be a correct transcription of the recording,
the deposition may, subject to subsection (2), be read as evidence on the trial without further proof thereof.
(2)A deposition referred to in —
(a)subsection (1)(a) shall not be read as evidence on the trial without further proof thereof if it is proved that it was not in fact signed by the justices by or before whom it purports to be signed;
(b)subsection (1)(b) shall not be read as evidence on the trial without further proof thereof if it is proved that the transcript to be used is not a correct transcription of the recording.
(3)A person shall not allege that a deposition intended to be read as evidence on a trial is an incorrect transcription of a recording unless, not less than 7 days before the commencement of the trial, that person has given the prosecutor notice in the prescribed form of his intention to raise that allegation.
110.Power to take statements of witnesses dangerously ill
If a person dangerously ill and unable to travel is believed to be able to give material and important information relating to an indictable offence, or to a person accused thereof, and it is desirable, in the interests of truth and justice, that means should be provided for perpetuating such testimony and rendering the same available in the event of the death of the person giving the same, the proceedings described in the next section may take place.
111.How statements to be taken
Whenever it is made to appear to the satisfaction of any justice that any such person is dangerously ill and not likely to recover from such illness, and that it is not practicable for any justice to take a deposition, in accordance with the provisions of Part IV, of such person, the justice may take, in writing, the statement on oath or affirmation of such person, and the justice shall thereupon subscribe the same, and add thereto a statement of his reason for taking the same, and of the day and place when and where the same was taken, and of the names of the persons (if any) present at the taking thereof, and if the same relates to any indictable offence for which any accused person is already committed, shall transmit the same with the said addition to the proper officer of the court for trial at which the accused person has been committed; and in all other cases he shall transmit the same to the magistrate for the district in which he has taken the same, who shall preserve the same and file it of record.
112.Depositions, when admissible, in evidence
A statement taken as described in sections 110 and 111 may be read in evidence either for or against the accused upon his trial, if the person who made the same is proved to be dead, or if it is proved that there is no reasonable probability that such person will ever be able to travel or to give evidence, without further proof thereof, if the same purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the court that reasonable notice of the intention to take such statement has been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person or his counsel or solicitor had, or might have had if he had chosen to be present, full opportunity of cross‑examining the person who made the same, unless it is proved that any of the requisitions of the Act were not complied with.
113.Prisoner to be present when statement taken
Whenever a prisoner in actual custody has served or received notice of an intention to take a statement as mentioned in sections 110 and 111, a judge or the justice by whom the prisoner was committed, or the visiting justices of the prison in which he is confined may, by an order in writing, direct the gaoler having the custody of the prisoner to convey him to the place mentioned in the said notice for the purpose of being present at the taking of the statement; and such gaoler shall convey the prisoner or cause him to be conveyed accordingly and the expenses of such conveyance shall be paid out of the funds applicable to the other expenses of the prison.
[Heading repealed by No. 53 of 1992 s.31.]
114.Prosecution may change statement of facts
If under section 100(1) the prosecution serves the defendant with a statement of the material facts relevant to the charge, the prosecution may serve the defendant with an amended statement —
(a)at any time before the defendant is given the opportunity to plead under section 101;
(b)if the defendant has pleaded guilty under section 101 and been committed for sentence — at any time before the defendant is called on to plead before the court to which he or she has been committed for sentence.
[115‑122. Repealed by No. 87 of 1982 s.16.]
Warrant of deliverance
123.Defendant may be granted bail or kept in custody
On committing the defendant for sentence or trial under this Part, the justices may —
(a)grant the defendant bail under the Bail Act 1982; or
(b)by their warrant, order the defendant to be kept in custody,
until the sittings of the court before which the defendant is committed.
Witnesses where committal for trial
124.Recognizance of witnesses, etc.
The justices before whom any witnesses are examined may bind every such witness by recognizance, in such sum as they may think fit, to appear at the court at which the defendant is to be tried, then and there to give evidence against or for the defendant, and shall so bind over all witnesses called for the prosecution if so required by the defendant.
125.Signatures of justices; notice to witnesses
Every such recognizance shall be duly acknowledged by every person who enters into it, and shall be subscribed by the justices before whom it is acknowledged; and a notice thereof, signed by the justices, shall at the same time be given to every person bound thereby.
126.Justices may commit refractory witness
If a witness refuses to enter into such recognizance, the justices may, by warrant, commit him to gaol, there to be safely kept until after the trial of the defendant, unless in the meantime such witness duly enters into such recognizance before a justice.
Provided that, if afterwards, from want of sufficient evidence in that behalf or other cause, the justices before whom the defendant has been brought do not commit him or admit him to bail for the offence with which he is charged, or if the Attorney General or person appointed to present indictments declines to file an information against the defendant for the offence, any justice, upon being duly informed of the fact, may, by his order in that behalf, order and direct the keeper of the gaol where such witness is in custody to discharge him from the same, and such keeper shall thereupon forthwith discharge him accordingly as to that warrant.
Transmission of depositions, etc.
127.On committal, complaint etc. to be sent to Attorney General
If the defendant is committed for sentence under section 101C or 108, or for trial under section 101C or 107, the justices shall, as soon as possible after the committal, transmit to the Attorney General, or some other person duly appointed to present indictments, the complaint and all statements, depositions, exhibits and recognizances other than any statement of the material facts served under section 100(1) or 114.
128.Duty of Attorney General
The Attorney General, and the person appointed to present indictments shall, respectively, after such transmission and before the day of trial, have and be subject to the same duties and liabilities in respect of the said several documents upon a certiorari directed to them respectively, or upon a rule or order directed to them in lieu of that writ, as the justices would have had and been subject to upon a certiorari to them if such documents had not been so transmitted.
129.Authority of judge
The Attorney General and the person appointed to present indictments in a district respectively, and any officer prosecuting for the Attorney General shall, at any time after the opening of the court at the sittings or sessions at which the trial is to be held, or the sentence passed, deliver the said documents, or any of them, to the proper officer of the court, if and when the presiding judge so directs.
Recommittal
130.Recommittal in case of error
If in any case a defendant is committed to take his trial or for sentence before a court which has not jurisdiction to try the case or pass sentence upon him, or before which he ought not to be committed to take his trial, or for sentence, or the judge whereof is by reason of interest or otherwise incapacitated from trying the case or passing sentence, the committing justices or any other justices may, at any time before the time appointed for holding such court, direct the defendant and the warrant of commitment, if any, to be brought before them and may, upon production of the depositions and without further evidence, cancel the warrant of commitment, and may commit the defendant afresh to take his trial, or for sentence, before another and the proper court; or if the defendant is brought before the court at the time appointed for holding the same, the court may, notwithstanding such defect of jurisdiction or incapacity, remand him to take his trial, or for sentence, before another and the proper court.
When a fresh commitment or remand has been so made, the same or any other justices, or such court, may bind the witnesses by fresh recognizance to appear and give evidence at the court to which the defendant is so committed or remanded, and for that purpose may summon and compel the attendance of the witnesses before the justices or the court in the manner hereinbefore provided for compelling the attendance of witnesses to give evidence.
Every direction of justices to bring a defendant before them under this section shall be reduced into writing and signed and have effect as a warrant, and shall be obeyed and carried into effect by all constables, gaolers, and other persons to whom it is directed, according to its tenor.
[131, 132. Repealed by No. 119 of 1985 s.31.]
[133.Repealed by No. 22 of 1968 s.22.]
Part VI — Proceedings in case of simple offences and other matters
Complainant’s default
134.Dismissal or adjournment in absence of complainant
Subject to section 136, if, upon the day and at the time and place appointed by the summons for hearing and determining a complaint of a simple offence or other matter, the defendant attends voluntarily in obedience to the summons, or is brought before the justices by virtue of a warrant, and the complainant (having had notice of such day, time, and place) does not appear by himself, his counsel, or solicitor, the justices shall dismiss the complaint, unless for some reason they think proper to adjourn the hearing of the same to some other day, in which case they may adjourn the hearing accordingly, upon such terms as they think fit, and may commit the defendant in the meantime for his appearance at the time and place to which the hearing is so adjourned.
Defendant’s default
135.Absence of defendant: Defendant may notify plea of guilty
(1)Subject to section 136, if, at the time and place appointed by a summons for the hearing and determining of a complaint of a simple offence that is not an indictable offence, the defendant does not appear when called and due service of that summons, within a reasonable time before that appointed for his appearance, is proved as provided by section 56, 56A or 57, the justices may —
(a)proceed to hear and determine the complaint to which that summons relates, in the absence of the defendant; or
(b)adjourn the hearing of the complaint to which that summons relates and may issue —
(i)a summons and, if it is not obeyed, their warrant; or
(ii)their warrant,
to apprehend the defendant and to bring him before justices to answer that complaint and to be dealt with further according to law,
but if the defendant has by written notification notified the clerk of petty sessions that he wishes to plead guilty to the charge the justices shall, subject to subsection (1a), proceed to hear and determine the complaint as though the defendant were present and pleaded guilty thereto.
(1a)Where a defendant has notified the clerk of petty sessions that he wishes to plead guilty to a charge in the manner referred to in subsection (1) and by further notification received by the clerk before the hearing the defendant or his solicitor intimates to the clerk that the defendant wishes to withdraw the plea then, if the defendant does not appear when called and due service of the summons, within a reasonable time before that appointed for his appearance, is proved as provided by section 56, 56A or 57, the justices may —
(a)proceed to hear and determine the complaint in the absence of the defendant; or
(b)adjourn the hearing of the complaint and may issue their warrant to apprehend the defendant and to bring him before justices to answer the complaint and to be further dealt with according to law.
(1b)For the purposes of this section any notification signed or purporting to be signed by the defendant or by the solicitor of the defendant on his behalf shall be receivable in evidence and shall, unless the contrary is proved, be deemed to have been signed by the defendant or by the solicitor of the defendant on his behalf, as the case requires.
(1c)A summons issued under subsection (1)(b)(i) may be served by post on the defendant.
[(2) and (2a) repealed]
(3)Where a person is apprehended under a warrant issued pursuant to this section, he shall be detained in safe custody, until he can be brought before justices at a time and place of which the complainant has had due notice.
136.Defendant may notify plea of not guilty
(1)A person on whom a summons for a simple offence that is not an indictable offence is served (in this section called “the defendant”) may, if he wishes to plead not guilty to the charge set out in that summons —
(a)state —
(i)that he wishes to plead not guilty to that charge; and
(ii)the address for service on him of notices;
and
(b)write his signature,
in the place provided for the purpose in the duplicate of that summons received by him and, as soon as possible after receiving that duplicate, transmit it to the clerk of petty sessions in the place at which that summons is returnable.
(2)Subject to subsection (3), if the clerk of petty sessions to whom a duly completed duplicate of the summons referred to in subsection (1) has been transmitted under the latter subsection receives that duplicate before the time appointed by that summons for the hearing and determining of the complaint to which that summons relates —
(a)that clerk of petty sessions or an officer authorized by him in writing for the purpose shall forthwith notify the complainant concerned of that receipt;
(b)it shall not be necessary for the defendant or the complainant or for the witnesses, if any, or the solicitor or counsel, if any, of the defendant or the complainant to appear before the court of petty sessions at that time;
(c)that complaint shall not be heard at that time; and
(d)the justices shall fix a time and place for the hearing and determining of that complaint.
(3)If, notwithstanding the receipt by the clerk of petty sessions referred to in subsection (2) of a duly completed duplicate of the summons concerned before the time appointed by that summons for the hearing and determining of the complaint to which that summons relates, both the defendant and the complainant —
(a)appear at that time before the court of petty sessions concerned; and
(b)consent to the hearing and determining of that complaint at that time,
the justices may hear and determine that complaint at that time.
(4)The clerk of petty sessions referred to in subsection (2) or an officer authorized by him in writing for the purpose shall, as soon as the justices have fixed under that subsection a time and place for the hearing and determining of the complaint concerned —
(a)serve on the defendant notice in the prescribed form that he is required to attend at that time and place —
(i)at the address for service on the defendant of notices stated by the defendant under subsection (1)(a)(ii); or
(ii)if the defendant has not stated an address for service referred to in subparagraph (i), at the address at which the summons referred to in subsection (1) was served on the defendant,
by posting that notice to that address by prepaid registered post in an envelope addressed to the defendant; and
(b)notify the complainant that he is required to attend at that time and place.
(5)The justices hearing the complaint concerned at the time and place fixed under subsection (2) —
(a)may accept as proof of the service on the defendant of notice of that time and place the certificate in the prescribed form of the clerk of petty sessions concerned, or of an officer authorized by him in writing for the purpose, of the due posting by him of that notice under subsection (4);
(b)may, if the defendant does not appear at that time and place when called and due service of notice referred to in paragraph (a) is proved —
(i)proceed to hear and determine that complaint in the absence of the defendant; or
(ii)adjourn the hearing of that complaint and may issue their warrant to apprehend the defendant and to bring him before justices to answer that complaint and to be dealt with further according to law.
(6)In this section —
“officer” means officer of the court of petty sessions by which the defendant is dealt with under this section.
136AA.Absence of defendant: Court may convict
(1)If —
(a)a complaint has been made or sworn by a person who is a public officer acting in the course of the officer’s duties; and
(b)the court, under section 135(1)(a), 135(1a)(a) or 136(5)(b)(i), proceeds to hear and determine the complaint in the absence of the defendant,
the court in doing so may take as proved any allegation in the summons served on the defendant in relation to the complaint.
(2)For the purposes of this section, if a complaint is made or sworn by a person who in the complaint purports to be a public officer, it shall be presumed, in the absence of evidence to the contrary —
(a)that the person is such an officer;
(b)that the complaint was made or sworn by the person acting in the course of his or her duties as such an officer; and
(c)that the person had the authority to make or swear the complaint.
(3)In this section —
“public officer” has the same definition as in section 1 of The Criminal Code.
Decisions given in default of appearance
of any party may be set aside
136A.Decisions given in default of appearance of any party may be set aside
(1)Where, after the coming into operation of the Justices Act Amendment Act 1957 1, a decision is given by justices pursuant to jurisdiction conferred on them by this Act, but in default of appearance by the complainant or by the defendant, the party who did not appear may, within 21 days next after the giving of the decision, or within such further period as the court may direct, serve on the clerk of petty sessions of the court in which the decision was given, notice in writing of his intention to apply to the court to set the decision aside, and of the grounds of the application.
(2)On service of the notice referred to in subsection (1) and payment by the applicant of such fee, if any, as is required by or under this Act to be paid, the clerk of petty sessions shall appoint a time and place for the hearing of the application by the court of petty sessions and shall in writing notify the applicant of the time and place.
(3)The applicant shall, within the prescribed time, or, if no time is prescribed, within 3 days after the day on which he serves notice under subsection (1) enter into a recognizance before a court of petty sessions conditioned —
(a)to appear before the court to which the application is made;
(b)to submit to the judgment of that court; and
(c)to pay such costs as that court may award.
(3a)A recognizance referred to in subsection (3) shall be in such sum as the court thinks fit and the court shall where it is constituted by a justice or justices, and may in any other case, in addition require either —
(a)that there be a surety or sureties approved by it; or
(b)that the applicant deposit a sum of money with the clerk of petty sessions by way of security,
for the compliance by the applicant with the conditions of his recognizance.
(3b)On a recognizance being given under subsection (3) execution shall be stayed until the application is disposed of or the court of petty sessions otherwise orders, and the applicant, if then in custody for non‑payment of any sum of money, shall be released upon presentation of the recognizance to the person by whom he is held in custody.
(4)At the time and place appointed by the clerk of petty sessions for the hearing of the application, the court of petty sessions shall, if the applicant does not appear, strike out the application and, if he does appear, proceed to hear the application and may —
(a)refuse the application to set aside the decision; or
(b)adjourn the hearing of the application to a time and place appointed by the court, and direct that the applicant give to the other party written notice of the time and place so appointed by the court and that the other party may, if he thinks fit, then and there appear to oppose the application, and the court may at the time and place appointed by the court set aside the decision in respect of which the application is made on such terms as the court thinks fit, or the court may refuse to set aside the decision; and
(c)in any case, make such order as to costs as the court thinks fit.
(5)If the court to which the application to set aside the decision is made, refuses the application pursuant to subsection (4)(a), or refuses to set aside the decision pursuant to subsection (4)(b), and if the appellant was released from custody on recognizance pending the decision of the application, the court may order the return of the applicant to custody according to the decision in respect of which the application was made.
(5a)If justices set aside the decision, any licence suspension order made under Part 4 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 in respect of any fine imposed by the decision is to be taken as having been cancelled as at the time the application under subsection (1) was made.
(6)The provisions of this section are in addition to, and not in derogation of, any of the provisions of Part VIII, which latter provisions, if applicable in the circumstances of the case, may be applied in respect of a decision of justices in respect of an application made under this section.
136B.Proceedings against children
(1)Notwithstanding the provisions of any other Act, where the justices proceed to hear and determine a complaint against a person who is, or at the material time was, under the age of 18 years, in the belief that the person is, or at the material time was, of or over that age, the proceedings are not on that account invalidated, the determination shall, subject to subsection (2), be and remain of full force and effect and anything done pursuant to the determination is lawful.
(2)Where the justices make a determination such as is mentioned in subsection (1), a party to the complaint or the Minister may apply to justices, or if the determination is the subject of an application for leave to appeal under Part VIII, apply to the court or Judge hearing that application for an order setting aside the determination; and the justices, court or Judge shall, if satisfied that the application is well founded, set aside the determination, remit any penalty that may have been imposed and transmit the complaint for hearing and determination to the Children’s Court.
Hearing
137.Appearance of both parties
(1)If both the defendant and the complainant appear —
(a)personally; or
(b)by counsel or solicitor,
then the justices may, subject to section 136 and this section, proceed to hear and determine the complaint.
(2)If the defendant has not, prior to the time of the appearance referred to in subsection (1), being the time appointed by a summons for a simple offence that is not an indictable offence, notified the clerk of petty sessions concerned —
(a)under section 135 of his wish to plead guilty; or
(b)under section 136 of his wish to plead not guilty,
to the charge concerned, the justices shall not proceed to hear and determine the complaint at that time unless the complainant consents thereto.
(3)If a person on whom is served a summons for a charge of an indictable offence, being a charge which may be dealt with summarily at the election of that person —
(a)appears at the time and place appointed by that summons;
(b)elects that that charge be dealt with summarily; and
(c)pleads not guilty to that charge,
the justices shall not proceed to hear and determine that complaint at the time referred to in paragraph (a) unless the complainant consents thereto.
138.Proceedings at the hearing on defendant’s confession
When the defendant is present at the hearing, the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, or why an order should not be made against him; and if he has no cause to show, then the justices present at the hearing may convict him, or make an order against him accordingly.
138A.Defendants who will not or do not plead
(1)If a defendant, on being called on to plead to a complaint, will not or does not —
(a)plead in a manner provided in section 138; or
(b)answer directly to the complaint,
the justices shall enter a plea of not guilty on behalf of the defendant unless the defendant is not mentally fit to stand trial under the Criminal Law (Mentally Impaired Defendants) Act 1996.
(2)A plea so entered has the same effect as if it had been actually pleaded.
139.Where defendant does not admit the case
But if he does not admit the truth of the complaint, then the justices shall proceed to hear the complainant and his witnesses, and also the defendant and his witnesses, and also such witnesses as the complainant may examine in reply, if the defendant has given any evidence other than as to his general character; and the justices, having heard the evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order upon the defendant or dismiss the complaint, as justice may require.
140.Non‑appearance of party or parties at adjourned hearing
If at the time or place to which a hearing or further hearing is adjourned, either or both of the parties does not or do not appear personally or by counsel or solicitor, the justices then present may proceed to such hearing or further hearing as if such party or parties were present; or if the complainant does not appear the justices may dismiss the complaint with or without costs.
Practice
141.Practice as to examination etc. of witnesses
The practice before justices upon the hearing of a complaint of a simple offence or other matter shall, in respect of the examination and cross‑examination of witnesses be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law. But the complainant, his counsel, or solicitor shall not, without the leave of the justices, be entitled to make any observations in reply upon the evidence given by the defendant; nor shall the defendant, his counsel, or solicitor without such leave be entitled to make any observations in reply upon any evidence given by the complainant in reply.
Dismissal
142.Dismissal of complaint
If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall, upon production and without further proof, be a bar to any subsequent complaint for the same matter against the same person.
143.Acquittal on account of unsoundness of mind
(1)If on the hearing of a complaint for an offence the question arises whether the defendant was not criminally responsible for an act or omission on account of unsoundness of mind, the justices shall, if they find the defendant not guilty, make a special finding as to —
(a)whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and
(b)if they so acquitted the person, the offence the person was acquitted of.
(2)If justices find a defendant not guilty on account of unsoundness of mind the defendant is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996.
[144.Repealed by No. 92 of 1994 s.20.]
[145.Repealed by No. 78 of 1995 s.61.]
146.Formal record of conviction not necessary, except for special purposes
(1)It shall not be necessary for justices formally to draw up a conviction or order or any other record of a decision, except on summary conviction for an indictable offence, unless the same is required by a party to the proceedings for the purpose of an appeal against the decision, or is required for the purpose of a return to a writ of habeus corpus or other writ from the Supreme Court.
(2)Notwithstanding subsection (1) justices shall record their reasons for a decision if required to do so under the Sentencing Act 1995.
No certiorari
147.No certiorari
No conviction or order shall be quashed for want of form, or be removed by certiorari or otherwise into the Supreme Court, and no warrant of commitment on a conviction shall be held void by reason of any formal defect therein; provided it is therein alleged that the party had been duly convicted, and there is a good and valid conviction to sustain it.
Party’s access to records etc.
148.Party’s right to have copies of records and view exhibits
(1)Where a conviction or order is made, or a complaint is dismissed by justices, any party interested therein is entitled on request —
(a)to receive a copy of —
(i)the complaint;
(ii)the record of proceedings made or caused to be made by the justices;
(iii)any statement of the defendant’s convictions that is tendered in the proceedings; and
(iv)the conviction or order,
from the officer who has custody thereof, subject to payment of an amount calculated in such manner as is prescribed by regulations; and
(b)to view any exhibit in the proceedings that is in the possession of an officer of a court and that is not reasonably capable of being copied, at a time and place appointed by that officer.
(2)In subsection (1)(a)(ii) “the record of proceedings” means a record of the evidence and proceedings however made whether —
(a)taken personally by the justices;
(b)recorded in any manner by a clerk or typist; or
(c)transcribed from a sound recording,
and includes any record of the reasons for the decision, and a copy of any exhibit that is reasonably capable of being copied.
(3)Nothing in this section shall be read as requiring that in any proceedings —
(a)justices make available any note made for their own purposes and not in discharge of a duty to record; or
(b)a record be made of any address to the court in the proceedings.
[149 and heading.Repealed by No. 78 of 1995 s.61.]
150.Sentence
If justices convict a person, whether after a plea of guilty or otherwise, the justices may sentence and make other orders in respect of the offender under the Sentencing Act 1995.
[150A.Repealed by No. 78 of 1995 s.61.]
Costs
151.Costs on conviction or order
In all cases of summary convictions and orders, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.
152.Costs on dismissal
When justices, instead of convicting or making an order, dismiss the complaint, they may, by their order of dismissal, order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
153.Costs to be specified in the conviction or order
The sum so allowed for the costs shall, in all cases, be specified in the conviction or order or order of dismissal.
[154.Repealed by No. 92 of 1994 s.20.]
Enforcement of recognizances
154A.Enforcing recognizances
(1)If a person bound by —
(a)a recognizance to appear before a court of petty sessions;
(b)a recognizance entered into pursuant to an order made under a written law by a magistrate or a justice; or
(c)a recognizance entered into in respect of any matter cognizable by a court of summary jurisdiction,
fails in any condition of the recognizance, justices may, on the application of the Crown and on the production of the recognizance, order that the recognizance be forfeited and that any person bound by the recognizance (including any surety) pay the amount that he or she is so bound to pay to the Crown.
(2)The amount to be paid must be paid, and its payment may be enforced, under Part 5 of the Fines, Penalties and Infringement Notices Enforcement Act 1994.
(3)Subsection (2) does not prejudice the recovery of the amount as a civil debt due to the Crown.
Enforcing orders to pay money
155.Enforcing the payment of money, other than fines etc.
(1)In this section —
“payment order” means an order requiring a person to pay money, other than —
(a)a fine as defined in section 28 of the Fines, Penalties and Infringement Notices Enforcement Act 1994;
(b)compensation to be paid under a compensation order made under Part 16 of the Sentencing Act 1995; or
(c)the sum to be paid on the forfeiture of a recognizance under section 154A.
(2)This section applies where justices make a payment order.
(3)If the money is not paid within 28 days after the date of a payment order, the money may be recovered as a judgment debt in a court of competent jurisdiction.
(4)For the purposes of subsection (3), a clerk of petty sessions may issue a certified copy of a payment order and that copy may be registered as a judgment in a court of competent jurisdiction.
(5)Subsection (3) does not prejudice the recovery of the money by means expressly provided by a written law.
[155A, 155B, 155C, 155D. Repealed by No. 109 of 1965 s.4.]
[156, 157, 158. Repealed by No. 92 of 1994 s.18.]
Enforcing other orders
159.Imprisonment may be ordered
(1)If justices make an order for the doing of an act, other than an order requiring the payment of money or an order under Part VII, they may direct that if the defendant contravenes the order, the defendant is to be imprisoned for a period set by the justices.
(2)If a defendant contravenes an order made under subsection (1), the justices who made the order, or another justice, may issue a warrant of commitment accordingly.
[160‑165A and headings. Repealed by No. 92 of 1994 s.19.]
[166 and heading, 166A, 166B. Repealed by No. 78 of 1995 s.61.]
[167, 168 and heading. Repealed by No. 92 of 1994 s.20.]
[169.Repealed by No. 22 of 1968 s.33.]
[170 and heading, 171. Repealed by No. 78 of 1995 s.61.]
[Part VIAA (ss.171AA-171AI), Part VIBA (ss.171BA-171BM), Part VIA (ss.171A-171D). Repealed by No. 92 of 1994 s.20.]
[Part VII (ss.172-178), Part VIIA (ss.179‑182B). Repealed by No. 19 of 1997 s.80(2).]
Part VIII — Appeals
Definitions
183.Definitions
In this Part unless the contrary intention appears —
“clerk of petty sessions” means the clerk of petty sessions at the place of sitting at which the decision subject to appeal was given;
“Court” means the Supreme Court constituted by one Judge and, where the Full Court has jurisdiction under this Part, includes the Full Court;
“Full Court” has the meaning assigned to it by section 4 of the Supreme Court Act 1935;
“legal practitioner” means a practitioner within the meaning of the Legal Practitioners Act 1893;
“Registrar” has the meaning assigned to it by section 4 of the Supreme Court Act 1935.
Right of appeal by leave
184.Right of appeal
(1)Subject to any other Act —
(a)an appeal lies to the Court, by leave as provided in this Part, from a decision of justices; but
(b)otherwise there is no appeal from such a decision.
(2)A decision that is declared by an Act to be final may not be the subject of an appeal under this Part.
(3)A decision by justices to commit a defendant for trial may not be the subject of an appeal under this Part.
185.Application for leave
(1)An application for leave to appeal may be made to a Judge in chambers or in Court.
(2)The application may be made by —
(a)any person who is aggrieved by the decision; or
(b)the Attorney General,
or by each of them, and shall be made ex parte unless the Judge orders that the application be served on any person.
(3)One application for leave to appeal may be made in respect of 2 or more decisions given at the same hearing, and the appeals for which leave is granted on any such application shall be consolidated unless, or except to the extent that, the Court otherwise orders.
186.Grounds
(1)An application for leave to appeal may only be made on a ground or grounds coming within the following —
(a)that the justices —
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there is some other reason that is sufficient to justify a review of the decision.
(2)An application may be made for leave to appeal against a decision notwithstanding that the decision was made following a plea of guilty or an admission of the truth of any matter.
Determination of application for leave
187.Grant or refusal of leave
(1)The Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case.
(2)Where an application for leave to appeal against a decision is made by the Attorney General and by another person, the Judge may determine both applications at the same time.
(3)An order granting leave to appeal shall specify that the appeal is to be heard by either —
(a)the Court constituted by one Judge; or
(b)the Full Court.
(4)An order granting leave to appeal shall show the ground or grounds of the appeal and, subject to section 192, the appeal shall not be heard or determined on any ground that is not shown in the order.
(5)In determining an application for leave to appeal the Judge may inform himself in such manner as he thinks fit.
188.Ancillary orders and directions
(1)Where leave to appeal is granted —
(a)the Judge who makes the order granting leave shall include in the order a time within which the appeal shall be entered for hearing, and may include in the order such directions and further orders as he thinks fit for the purpose of facilitating the hearing or disposition of the appeal;
(b)any Judge may subsequently give any direction or make any further order of the kind referred to in paragraph (a), or may vary or revoke any previous direction or order under this section.
(2)Where leave to appeal against a decision is granted to the Attorney General and to another person, an order may be made under subsection (1) directing that the appeals shall be heard together.
189.Appeal against refusal of leave, etc.
(1)An appeal lies to the Full Court against the refusal of a Judge —
(a)to grant leave to appeal; or
(b)to grant leave to appeal on any ground specified in section 186.
(2)Section 193 applies, with all necessary changes, where the Full Court grants leave to appeal under this section as if references in that section to “the Judge” and “any Judge” were references to the Full Court.
190.Application for leave and appeal may be heard together
(1)Where an application for leave to appeal is granted, the appeal may be determined at the same time as the application if —
(a)it is in the interests of justice to do so; and
(b)sufficient notice that the appeal may be so determined has been given to such persons as, in the opinion of the Judge or Court, ought to have such notice.
(2)Subsection (1) applies to a Judge acting under section 187 or the Full Court hearing an appeal under section 189.
191.Notice to other parties
Except where section 190 applies, the appellant shall give notice of the appeal to —
(a)the other party or other parties to the proceedings before the justices; and
(b)any other person to whom the Judge may direct that notice be given.
192.Amendment of grounds of appeal
The Court may, on such terms and conditions as it thinks fit —
(a)on application made by the appellant before the hearing of the appeal; or
(b)on the hearing of the appeal,
amend or add to, or grant leave to the appellant to amend or add to, the grounds of the appeal.
Sentence pending disposal of appeal
193.Judge may make order as to stay of execution
(1)On granting leave to appeal, the Judge may make any order that he thinks fit touching the stay or continuation in effect of any sentence imposed or order made by the justices, or of any statutory consequence of the decision that is subject to appeal.
(2)Any Judge may subsequently make any order of the kind referred to in subsection (1) or may vary or revoke any previous order under this section.
(3)The provisions of an order under this section have effect notwithstanding anything in section 194.
(3a)If leave to appeal is granted in respect of a decision involving or giving rise to the imposition of a fine (as defined in section 28(1) of the Fines, Penalties and Infringement Notices Enforcement Act 1994), an order under this section is not to be made.
(4)Notwithstanding subsections (1) and (2), where an appellant or respondent is in custody, his sentence of imprisonment shall not be stayed unless he is granted bail under the Bail Act 1982 and he shall not be released from custody until he becomes entitled to be released under that Act.
194.General provisions as to stay of execution
(1)Subject to any order under section 193, the provisions of subsections (2), (3), (4) and (5) have effect on the granting of leave to appeal.
(2)After notice is received by the clerk of petty sessions that leave to appeal has been granted in respect of a decision, no warrant or order to enforce the decision shall be issued, and no action to enforce the decision shall be taken, under this Act until the appeal is disposed of.
(3)(a)Any disqualification from holding or obtaining a licence to drive a vehicle under the Road Traffic Act 1974, or under Part 15 of the Sentencing Act 1995, in respect of a conviction that is the subject of an appeal is suspended until the appeal is disposed of.
(b)Any period during which the disqualification is so suspended shall not be taken into account in determining the period of the disqualification.
(4)Subject to subsection (5) and section 101B of the Fines, Penalties and Infringement Notices Enforcement Act 1994, any sentence imposed, or any other order made, under the Sentencing Act 1995, the Young Offenders Act 1994, or any other law, is suspended until the appeal is disposed of.
(5)Subsection (4) does not apply to —
(a)a sentence of imprisonment, whether or not it is suspended under Part 11 or is indefinite imprisonment imposed under Part 14, of the Sentencing Act 1995;
(b)a sentence of detention under the Young Offenders Act 1994; and
(c)an order of forfeiture.
(6)In this section “disposed of ” means determined, dismissed or discontinued.
195.Revival of sentence or order on disposition of appeal
Upon the determination, dismissal or discontinuance of an appeal, any thing the doing or operation of which is suspended under section 193 or 194 has effect, but subject to any order of the Court.
Determination of appeal
196.Evidence
(1)The Court shall determine the appeal —
(a)on the material that was before the justices; and
(b)on such further evidence either oral or by affidavit as the Court thinks fit to receive.
(2)For the purposes of subsection (1) the Court may ascertain what material was before the justices on such evidence, statement or record of what occurred before the justices as the Court considers sufficient.
197.Unrepresented person may present case in writing
A party to an appeal who is not represented by a legal practitioner is entitled to present his case in writing instead of orally.
198.Presence at appeal of party in custody
(1)At the hearing of, or at any proceedings relating to, an appeal, a party to the appeal who is in custody is entitled —
(a)to be present if he is not represented by a legal practitioner; or
(b)if he is so represented, to be present if the Court so orders.
(2)Where it appears to the person for the time being in charge of any prison that a person in his custody is entitled to be present at any proceedings referred to in subsection (1) he shall cause that person to be taken to the Court.
199.Powers of Court
(1)Upon the hearing of an appeal, the Court may do one or more of the following —
(a)dismiss the appeal, or set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision;
(b)dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;
(c)substitute a decision that ought to have been made by the justices;
(d)remit the case for rehearing by justices or specified justices or a magistrate or a specified magistrate, with or without any direction to him or them;
(e)refer the case for hearing and determination by the Full Court;
(f)exercise any power that the Court may exercise on an application for certiorari, mandamus, prohibition or habeas corpus;
(g)make such other order as it thinks fit, including an order as to costs.
(2)Nothing in subsection (1) shall affect the powers of the Court under section 136B(2).
(3)The Court is not required to set aside, quash or vary a decision of any justices because the justices omitted to make any necessary finding if the facts or evidence —
(a)in substance support the decision; or
(b)justify the finding,
and the Court may instead under subsection (1) either vary the decision or substitute another decision for it.
(4)The Court may also vary the decision of justices or substitute another decision for it where, in a conviction, there is some excess which may, consistently with the merits of the case, be corrected.
(5)Upon the hearing of an appeal against sentence the Court may have regard to whether or not the appellant or a convicted person has failed wholly or partly to fulfil an undertaking to assist law enforcement authorities that caused the sentencing court to reduce the sentence that it would otherwise have passed.
200.Enforcement
(1)The decision of the Court, or the decision of the justices as varied by the Court, other than a decision under section 199(1)(d), (e) or (f), shall take effect as if it were the decision of the justices, and may be enforced accordingly.
(2)Upon the determination, dismissal or discontinuance of an appeal, any warrant or other process that was suspended under section 193 or 194 has effect, subject to any order of the Court.
(3)Nothing in subsection (2) limits the operation of section 203(3).
(4)If the appeal is dismissed by the Court, any justice may, subject to section 27, issue any warrant that may be necessary to enforce or give effect to the decision.
(5)The Court may issue any warrant or process that may be necessary to give effect to its decision.
(6)Justices or a magistrate may take all such steps as are necessary to give effect to any decision of the Court of a kind mentioned in section 199(1)(d).
201.Want of form
(1)Notwithstanding anything in section 186, no decision of, or proceedings before, any justices, nor any document in such proceedings, shall be held to be bad for want of form.
(2)Without limiting subsection (1), a person may not appeal against a decision on the ground that there was no complaint or summons, or any amendment thereof, if he was present at the hearing at which the decision was made and did not then make an objection on that ground.
202.Notification of result of appeal to clerk of petty sessions
(1)The Registrar shall send a memorandum of the determination of the Court on an appeal, or of the dismissal of an appeal under section 205, to the clerk of petty sessions.
(2)A copy of the memorandum shall be entered in the records of the clerk of petty sessions and shall be sufficient evidence of the matters stated therein.
203.Notification relating to sentence of imprisonment
(1)Where the Court in determining an appeal —
(a)quashes a sentence of imprisonment;
(b)varies a sentence of imprisonment, or amends a conviction in respect of which a sentence of imprisonment was imposed; or
(c)confirms a sentence of imprisonment,
the Registrar shall send to the officer in charge of the prison in which the person sentenced is in custody, or if he is at liberty on bail would be in custody, a memorandum setting out the result of the appeal.
(2)Where the Court has quashed a sentence of imprisonment imposed on a person and has not imposed another sentence of imprisonment on him, he shall be released by the officer in charge of the prison on receipt of a memorandum under subsection (1) unless the person is required to be in custody for some other matter.
(3)Where subsection (1)(b) applies, the warrant of the justices has effect as if it were amended in accordance with the memorandum.
(4)A copy of the memorandum shall be entered in the records of the officer in charge of the prison and shall be sufficient evidence of the matters stated therein.
Discontinuance and abandonment of appeal
204.Discontinuance of appeal
(1)An appellant may at any time discontinue an appeal by giving notice of discontinuance to the Court and serving a copy of the notice on the other parties to the appeal and on the clerk of petty sessions.
(2)A party on whom a notice of discontinuance is served may within 60 days after service apply to the Court for an order as to costs or as to any other matter relating to the discontinued appeal, and the Court may make such order as to costs or otherwise as it thinks fit.
(3)The Court may issue any warrant that may be necessary as a result of the discontinuance of the appeal.
205.Dismissal for want of prosecution
(1)If the appellant is in default in entering the appeal for hearing within the required time or taking any necessary step in connection therewith, the Attorney General or any party to the appeal may apply to the Court by summons served on the appellant for an order dismissing the appeal.
(2)If the appellant does not appear, either personally or by a legal practitioner, at the hearing of the appeal, or if the Court is satisfied on an application under subsection (1) that the appellant is in default as mentioned in that subsection, the Court may do one or more of the following —
(a)dismiss the appeal;
(b)require the appellant to take any specified step within a specified time, and dismiss the appeal if he fails to comply with that requirement;
(c)require the appellant to pay costs;
(d)make such other order as the Court thinks fit.
(3)The Court may issue any warrant that may be necessary as a result of the dismissal of the appeal.
(4)An application by way of summons under subsection (1) may be heard and determined in the absence of the appellant if it is proved that he was served with the summons.
206.Application for re‑instatement of appeal
(1)Where an appeal is dismissed under section 205 in the absence of the appellant, he may apply to a Judge in chambers for an order re‑instating the appeal.
(2)The Judge shall make an order re‑instating the appeal only if he is satisfied that there was reasonable cause for the failure of the applicant to appear at the hearing of the appeal or the application under section 205(1), as the case may be.
(3)Sections 190, 191, 193, 194 and 195 shall with all necessary changes apply —
(a)to an application for, or order of, re‑instatement under this section; and
(b)upon the making of the application or order,
as if they were respectively an application for leave to appeal and an order granting leave to appeal.
Appeal to Full Court
206A.Appeal to Full Court
(1)Subject to any other Act, an appeal lies to the Full Court, by leave as provided in this section, from a decision under section 199, 205 or 206C of the Court constituted by one Judge.
(2)An application for leave to appeal may be made by —
(a)a party to an appeal; or
(b)the Attorney General.
(3)The application may be made —
(a)in chambers or in court, to the Judge who constituted the Court; or
(b)to the Full Court.
(4)Subject to this section, the provisions of this Part (other than section 186) and the relevant rules of court apply, with all necessary changes, to —
(a)an application for, and an order granting, leave under this section;
(b)proceedings relating to the application and the appeal;
(c)the discontinuance, failure to prosecute, or re‑instatement of the appeal;
(d)the disposition of the appeal; and
(e)the consequences thereof,
as if they were respectively —
(f)an application for leave under section 185 and an order granting leave to appeal under section 187;
(g)proceedings relating to such an application and appeal;
(h)the discontinuance, failure to prosecute or re‑instatement of such an appeal;
(i)the disposition of such an appeal; and
(j)the consequences thereof.
(5)Without limiting subsection (4), in the application of section 193(1) to a grant of leave to appeal under this section, the reference in that subsection to “the justices” shall be read as a reference to “the Court”.
(6)In subsection (2) “party to an appeal” includes, where an application has been made under section 206C to extend or shorten the time allowed under rules of court for filing an appeal under this Part, a person who is aggrieved by a decision on that application.
General
206B.Retention of exhibits
(1)Any exhibit in proceedings before —
(a)justices; or
(b)the Court in respect of an appeal for which leave is granted under section 187,
shall, unless otherwise ordered by the Court, be retained by the clerk of petty sessions or the Registrar, as the case may require, for not less than 31 days after the day on which any decision is given in those proceedings.
(2)Where a notice is received by the clerk of petty sessions that leave to appeal has been granted in respect of any decision, he shall continue to retain any exhibit until he is required to send the exhibit to the Court for the purposes of the appeal or until the appeal is determined, dismissed or discontinued.
(3)If an appeal is brought under section 189 or an application for leave to appeal is made under section 206A, the Registrar shall continue to retain any exhibit until the matter is determined, dismissed or discontinued.
(4)In addition to the requirements of subsections (1), (2) and (3) the clerk of petty sessions or the Registrar, as the case may require, shall, unless otherwise ordered by the Court, retain any exhibit until the time allowed for filing any appeal under section 189 or application under section 206A has expired.
(5)Notwithstanding anything in this section, a justice, the clerk of petty sessions or the Registrar may —
(a)hand over any exhibit to a person who in his opinion is entitled to custody of it if he considers that —
(i)it is dangerous, impracticable or inconvenient for it to be retained under this section; or
(ii)it is necessary for that person to have the use of the exhibit;
(b)otherwise dispose of any exhibit that comes within paragraph (a)(i) but that is not handed over to a person under paragraph (a);
(c)require a person as a condition of any delivery to him under paragraph (a) to give an undertaking in writing to the clerk or the Registrar as to the care, maintenance and custody of the exhibit and its re‑delivery to the clerk or to the Court.
(6)A person who, without reasonable excuse, fails to carry out an undertaking given to the clerk of petty sessions or the Registrar commits a contempt of the Supreme Court.
206C.Time may be extended or shortened
(1)The Court may, on such terms as it thinks fit, extend or shorten the time allowed under this Part or by rules of court for doing any act.
(2)An application under subsection (1) shall be made ex parte unless it is ordered that the application be served on any person.
206D.Orders for costs
Where the Attorney General is an appellant and costs are ordered to be paid by him to another person, such costs are not recoverable from the Attorney General; but the Registrar shall give to that person a certificate sealed with the seal of the Court showing the amount of such costs and the person may recover the amount shown in the certificate as a debt due by the Crown.
206E.Enforcement of order for costs
(1)Subject to subsection (3), if any costs ordered under this Part to be paid by a party are not paid, the Registrar shall, upon application made by the party entitled to such costs, grant to him a certificate specifying the amount of such costs and certifying that such costs have not been paid.
(2)Upon production of a certificate under subsection (1) to a justice, the payment of the costs may be enforced in the same manner as is provided for enforcing the payment of costs awarded by justices, but without prejudice to any other method of enforcement.
(3)Where an application for leave to appeal or an appeal relates wholly or partly to an order made by justices for the payment of money on account of any of the matters specified in the Eighth Schedule, an order for payment of costs in connection with the application or the appeal shall not be enforceable under this section.
[206F, 206G, 206H, 206I. Repealed by No. 33 of 1989 s.16.]
Habeas corpus
207.Control of Supreme Court over summary convictions
No person brought before the Supreme Court, or a Judge thereof, on habeas corpus shall be discharged from custody by reason of any defect or error in a warrant of commitment of any justices exercising a summary jurisdiction, unless such justices, or one of them, and the prosecutor or other party interested in supporting the warrant have received reasonable and sufficient notice of the intention to apply for such discharge. Such notice shall require them to transmit or cause to be transmitted to the Court or Judge the conviction or order, if any, on which the commitment was founded, together with the depositions and complaint, if any, intended to be relied on in support of such conviction or order, or certified copies thereof.
208.Amendment
If any such conviction or order, complaint, and depositions, or certified copies, are so transmitted, and the offence charged or intended to be charged thereby appears to have been established, and the judgment of the justices thereupon to have been in substance warranted, and the defects or errors appear to be defects of form only, or mistakes not affecting the substantial merits of the proceedings before the justices, the Court or Judge shall allow the warrant of commitment, and the conviction or order, to be forthwith amended in all necessary particulars in accordance with the facts, and the person committed shall thereupon be remanded to his former custody.
209.Notice dispensed with
The notice hereby prescribed may be given either before or after the issue of the writ of habeas corpus: Provided that when the copies of the conviction or order and depositions are produced at the time of applying for the writ, the Court or Judge may dispense with such notice.
[210.Repealed by No. 87 of 1982 s.26.]
[211, 212, 213, 214. Repealed by No. 33 of 1989 s.17.]
Service of notices
215.Service by or upon solicitor acting for party
Where a party acts or is represented by a solicitor, any document, notice, or proceeding required under this Part to be served by or upon such party may be served by or upon such solicitor, and service of any such document, notice, or proceeding upon such solicitor or delivery of the same at his office or sending the same to him properly addressed by post prepaid shall be deemed to be good service upon the party whom such solicitor represents, or for whom he acts, as upon the day when the same is so served or delivered, or upon which in the ordinary course of post it would be delivered.
[216.Repealed by No. 33 of 1989 s.17.]
[217.Repealed by No. 87 of 1982 s.28.]
[218.Repealed by No. 33 of 1989 s.17.]
Costs
219.No order for costs to be made against justices or police officers
No costs shall be allowed against any justice or police officer in respect or by reason of any appeal under this Act, or of any proceeding in the Supreme Court in its control over summary convictions.
Provided that where, on an appeal brought by a police officer, the decision appealed against is confirmed, or, if not confirmed, has involved, in the opinion of the Court or Judge hearing the appeal, a point of law of exceptional public importance, costs may be allowed to the respondent. Such costs shall not be recoverable from the police officer, but the Registrar of the Supreme Court shall, in any case where costs are so allowed, give to the respondent a certificate sealed with the seal of the Supreme Court showing the amount of such costs, and, on production of the certificate to the Treasurer, the respondent shall be paid such amount which shall be charged to the Consolidated Fund.
[220, 221. Repealed by No. 33 of 1989 s.17.]
Part IX — Protection of justices in the execution of their office
Where action lies against justices
222.Justice sued for act not within his jurisdiction
No action shall be maintainable against any justice for any act done under any conviction or order made or warrant issued by a justice in any matter of which by law he has not jurisdiction or in which he has exceeded his jurisdiction until after the conviction or order has been quashed or set aside upon appeal.
Nor shall any such action be maintainable for anything done under any such warrant which was issued by the justice to procure the appearance of the person charged, and which has been followed by a conviction or order in the same matter, until after such conviction or order has been so quashed or set aside.
If such last-mentioned warrant has not been followed by a conviction or order, or if it is a warrant upon a complaint of an alleged indictable offence, then if a summons issued previously to the warrant being issued, and such summons was served upon the person charged either personally or by leaving the same for him with some person at his last known place of abode, and he did not appear according to the exigency of the summons, in such case no action shall be maintainable against the justice for anything done under such warrant.
223.Warrant by one justice upon an order of another
When a conviction or order is made by one or more justice or justices, and a warrant of commitment is granted thereon by some other justice bona fide and without collusion, no action shall be maintainable against the justice who granted such warrant, by reason of any defect in the conviction or order, or for any want of jurisdiction in the justice or justices who made the same, but the action (if any) shall be brought against the justice or justices who made the conviction or order.
224.No action for acts done under order of Supreme Court
When a justice does an act in obedience to an order of the Supreme Court or a Judge thereof, no action shall be maintainable against him for obeying such order and doing the act thereby required.
225.No action where proceeding confirmed on appeal
When a warrant of commitment is granted by a justice upon a conviction or order which either before or after the granting of the warrant is confirmed upon appeal, no action shall be maintainable against the justice who granted such warrant for anything done under it by reason of any defect in such conviction or order.
226.Proceedings may be stayed or set aside
If an action is brought against a justice which by this Act is declared to be not maintainable, a Judge of the court in which the action is brought, upon application of the defendant and upon affidavit of the facts, may set aside or stay the proceedings in such action with or without costs.
[227, 228, 229. Repealed by No. 73 of 1954 s.5.]
Statement of claim and plaint
230.Liability of justices
In an action against a justice for any act done by him in the execution of his duty as such justice, it must be expressly alleged in the statement of claim or plaint that the act was done maliciously and without reasonable and probable cause, and if such allegations are denied, and at the trial of the action the plaintiff fails to prove them, judgment shall be given for the defendant with costs.
[231.Repealed by No. 73 of 1954 s.5]
Damages
232.Damages against a justice where guilt or liability of plaintiff if proved
When the plaintiff in an action against a justice is entitled to recover, and he proves the levying or payment of any penalty or sum of money under a conviction or order as parcel of the damages which he seeks to recover, or proves that he was imprisoned under such conviction or order, and seeks to recover damages in respect of such levying or payment or imprisonment, then, if it is proved that he was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum which he was so ordered to pay, and, in case of imprisonment, that he has undergone no greater punishment than that assigned by law for the offence of which he was so convicted, or for non‑payment of the sum which he was so ordered to pay, he shall not be entitled to recover the amount of the penalty or sum so levied or paid, or any sum beyond the sum of one cent as damages for such imprisonment, or any costs of suit whatsoever.
Part X — Maintenance and destruction of court records
233.Interpretation
In this Part —
“charge sheet” means book or document containing, in relation to a complaint, an official record of —
(a)the name of the defendant;
(b)the particulars of the offence with which the defendant was charged; and
(c)the determination of the complaint,
whether or not that book or document also contains any other matter relating to the complaint;
“court record” means official record of any proceedings in any court of petty sessions and includes any document filed in the court, or in the custody of the court, in relation to the proceedings;
“document”, “negative” and “reproduction” have the same respective meanings as they have in and for the purposes of sections 73A to 73V, inclusive, of the Evidence Act 1906;
“official record” includes —
(a)any document, book, plan, paper, photograph or parchment; or
(b)any material (other than material referred to in paragraph (a)) or part thereof on which is any writing or printing or which is marked with any letters or marks denoting words or any other signs capable of carrying a definite meaning to persons conversant with them,
made or received by a court of petty sessions or person acting judicially under this Act.
233A.Application of Part X
This Part shall not be construed so as to derogate in any way from the Library Board of Western Australia Act 1951.
234.Negatives of court records
A negative of a court record may be made at any time to be held by or on behalf of the court.
235.Destruction of court records generally
Subject to sections 233A, 236 and 236A, a court record —
(a)which is a charge sheet may be destroyed after the expiration of 53 years; or
(b)which is not a charge sheet may be destroyed after the expiration of 15 years,
from the time when it became such a court record.
236.Destruction of court records when negatives held
Subject to sections 233A and 236A —
(a)a court record may, if a negative thereof is held by or on behalf of the court of petty sessions concerned, be destroyed at any time after the expiration of 3 years from the time when it became a court record; and
(b)a negative referred to in paragraph (a) shall be held by or on behalf of the court of petty sessions concerned until —
(i)in the case of a negative of a charge sheet, the expiration of 53 years from the time when the charge sheet; or
(ii)in the case of a negative of a court record which is not a charge sheet, the expiration of 15 years from the time when that court record,
became a court record.
236A.Preservation orders
(1)A clerk of petty sessions may, of his own motion or on the application of the complainant or defendant or any other person interested in any proceedings in the court of petty sessions concerned, which proceedings have not yet been completed —
(a)order in writing that all or any of the court records relating to those proceedings be preserved from destruction for a period of one year; and
(b)from time to time renew in writing for a period of one year an order made under this subsection.
(2)A person shall not destroy a court record to which an order made or renewed under subsection (1) relates while that order is in force.
Penalty: $100.
237.Evidentiary provision
For the purposes of the laws relating to the admissibility of evidence but without otherwise affecting those laws, where, at any time, a negative of a court record is held by or on behalf of the court, the negative is deemed to be the court record and shall be treated as such by any court of petty sessions, and any other court, without any enquiry as to whether or not the court record has been destroyed.
